People v. Startz

• Decision Date: 20 April 2000
• Docket Number: No. 3-99-0298., No. 3-99-0068 to 3-99-0075
• Citation: 312 Ill. App.3d 863,728 N.E.2d 825,245 Ill.Dec. 743
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Howard D. STARTZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

728 N.E.2d 825

312 Ill. App.3d 863

245 Ill.Dec. 743

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Howard D. STARTZ, Defendant-Appellant.

Nos. 3-99--99--99-0298.

Appellate Court of Illinois, Third District.

April 20, 2000.

Peter A. Carusona, Office of the State Appellate Defender, Ottawa, for Howard D. Startz.

John X. Breslin, Deputy Director, State's Attorneys Appellate Prosecutor, Ottawa, James Glasgow, Will County State's Attorney, Joliet, Rita Kennedy Mertel, State's Attorneys Appellate Prosecutor, Ottawa, for the People.

Justice HOMERdelivered the opinion of the court:

The defendant, Howard Startz, appeals from an order of the circuit court of Will County.In a consolidated hearing, the defendant pled guilty to theft (720 ILCS 5/16-1(West 1996)) and admitted the allegations in the State's petitions to revoke probation in eight other cases.The trial court sentenced the defendant to four consecutive three-year terms of imprisonment.On appeal, the defendant argues: (1)the trial court erred in imposing consecutive terms of imprisonment because at the time it accepted his pleas and admissions, the court did not admonish him that he was eligible for consecutive sentences; and (2) this cause should be reversed and remanded for a fitness hearing because Public Act 89-689 (Pub. Act 89-689, eff.December 31, 1996), which modified the requirements for holding a fitness hearing based on a defendant's use of psychotropic medication, violates the single subject rule.We dismiss this cause in part for lack of jurisdiction, and we otherwise affirm.

I.FACTS

The record reflects that in 1995the defendant pled guilty in cases95-CF-1708and95-CF-1709 to seven counts of forgery (720 ILCS 5/17-3(West 1994)) and was sentenced to concurrent terms of 30 months' probation.In 1996, he was charged with three counts of retail theft and one count of theft.720 ILCS 5/16A-3; 16-1 (West 1996).The State then filed a petition to revoke his probation for the 1995cases based on some of the 1996 charges.In August 1996, the defendant was charged with two additional counts of retail theft.In October 1996, the defendant admitted the allegations in the State's petition to revoke his probation and pled guilty to the six 1996 charges.The court sentenced him to 60 months' Treatment Alternatives to Street Crime (TASC) probation on all the charges.

Less than a year later, the defendant was charged with another count of theft.The State filed petitions to revokethe defendant's TASC probation in the eight other cases(the six 1996cases and the two 1995cases).Subsequently, the court learned that the defendant had been involved in an automobile accident and was taking psychotropic medication.Therefore, before proceeding on the petitions to revoke and the new charge, the trial court asked the defendant if the medication that he was taking affected his ability to understand the proceedings.The defendant said that the medication did not affect him.On March 19, 1998, he admitted the allegations in the State's petition to revoke probation in the first eight cases and pled guilty in the ninth.On April 29, 1998, he was sentenced on all the cases to four consecutive three-year terms of imprisonment.

On May 27, 1998, the defendant filed, with respect to all nine cases, a pro se motion for reduction of sentence.On June 29, 1998, he filed a pro se motion to withdraw his guilty plea and vacate sentence.On December 15, 1998, the trial court heard and denied the motion to reconsider sentence.On January 26, 1999, the trial court heard the defendant's motion to withdraw his plea.The defendant argued that a fitness hearing should have been held after his automobile accident because he was taking psychotropic medication.In denying the defendant's motion to withdraw his plea, the court declared that, in order to be entitled to a fitness hearing, more was required than simply a showing that the accused had been taking psychotropic medication.On February 1, 1999, the defendant filed his notice of appeal.

II.ANALYSIS

Consecutive Sentences

On appeal, the defendant first argues that the trial court erred in imposing consecutive terms of imprisonment on his nine cases because it did not admonish him that he was eligible for consecutive sentences when it accepted his pleas and admissions.In response, the State initially argues that this court does not have jurisdiction to consider the defendant's claims in the first eight cases because he did not file a timely notice of appeal from the denial of his motion to reconsider sentence.

It is well settled that the timely filing of a notice of appeal is jurisdictional.People v. Blanchette,182 Ill.App.3d 396, 131 Ill.Dec. 49, 538 N.E.2d 237(1989).A notice of appeal is timely filed if it is filed within 30 days of the final judgment of the case, or within 30 days of a decision on a timely motion directed against the judgment.134 Ill.2d R. 606(b).Final judgment occurs in a criminal case when the defendant is sentenced.People v. Woolsey,139 Ill.2d 157, 151 Ill.Dec. 309, 564 N.E.2d 764(1990).

Here, the defendant's motion to reduce sentence was timely filed and was decided on December 15, 1998.He did not file a notice of appeal until February 1, 1999.Since his notice of appeal was filed more than 30 days after the decision on the motion, we do not have jurisdiction to hear the first eight cases.

The defendant argues that we have jurisdiction over these cases because: (1) his pro se motion to withdraw his guilty plea should be construed as a motion to withdraw his plea in the ninth case and a motion to withdraw his admissions in the other eight cases; and (2) that motion was timely because it was a "transformation or supplement" to the motion to reduce sentence.

Even if we liberally construe the defendant's pro se motion to withdraw his guilty plea as a motion to withdraw his plea and admissions, we would not have jurisdiction.The record reflects that the defendant was sentenced on April 29, 1998.The motion to withdraw the guilty plea was not filed until June 29, 1998.Therefore, the motion was untimely and cannot serve as a basis for extending the jurisdictional period.SeePeople v. Combs,197 Ill.App.3d 758, 144 Ill.Dec. 169, 555 N.E.2d 66(1990).Further, the motion to withdraw the plea cannot be construed as a "transformation or supplement" to the motion to reduce sentence.Both motions request different relief and allege distinct allegations.

Because the defendant did not file a timely notice of appeal from the trial court's denial of his motion to reduce sentence, we do not have jurisdiction over his first eight cases.We shall now address the defendant's ninth case, where he pled guilty to theft.¹

The defendant argues that the trial court erred in sentencing him to a consecutive sentence because it failed to admonish him that he was eligible for such a sentence before he pled guilty.

Supreme Court Rule 402(a)(2) expressly states that a court shall not accept a plea of guilty without first advising the defendant of the sentencing consequences, including the penalty to which the defendant may be subjected because of consecutive sentences.177 Ill.2d. R. 402(a)(2);People v. McCracken,237 Ill. App.3d 519, 178 Ill.Dec. 581, 604 N.E.2d 1104(1992).A court's failure to state the penalty to which a defendant may be subjected renders a defendant's plea involuntary.People v. Clark,276 Ill.App.3d 1002, 213 Ill.Dec. 505, 659 N.E.2d 421(1995).Whether reversal is required depends on whether real justice has been denied or whether the defendant has been prejudiced by the inadequate admonishment.People v. Davis,145 Ill.2d 240, 164 Ill.Dec. 151, 582 N.E.2d 714(1991).

Here, the defendant cannot challenge the admonishments he received before he pled guilty to theft in the ninth case.When he filed a motion to withdraw his guilty plea, he never addressed the issue of the trial court's failure to properly admonish him.Under Supreme Court Rule 604(d), any issue not raised in the motion to withdraw the plea of guilty is waived on appeal.145 Ill.2d R. 604(d).Further, a review of the plea proceedings under the plain error doctrine would be improper because the trial court made no misleading statements during the plea proceedings.SeePeople v. Clark,276 Ill. App.3d 1002, 213 Ill.Dec. 505, 659 N.E.2d 421(1995).When the judge sentenced the defendant to TASC probation at the sentencing hearing which preceded this case, the judge warned him that he could receive up to 21 years for the first eight cases.He ended up receiving 12 years' imprisonment for all nine cases.For these reasons, we decline to review the defendant's sentence under the plain error doctrine.

Single Subject Rule

The defendant argues that Public Act 89-689 (the Act), which modified the requirement for holding a fitness hearing based upon psychotropic medication, is unconstitutional because it violates the single subject rule.Pub. Act 89-689, eff.December 31, 1996(amending725 ILCS 5/104-21(West Supp.1997)).Therefore, he argues, he is subject to the law in effect prior to the improper enactment of the Act. 725 ILCS 5/104-21(West 1996).The defendant further notes that this prior law was held to be unconstitutional because it violated the single subject rule.Johnson v. Edgar,176 Ill.2d 499, 224 Ill.Dec. 1, 680 N.E.2d 1372(1997).For that reason, the defendant contends, we must apply the law in effect prior to the law which was struck down in Johnson v. Edgar.That earlier version required a fitness hearing if there was any evidence at trial that the defendant was taking psychotropic medication.See725 ILCS 5/104-21(West 1994).

Contents of Public Act 89-689

The contents of Public Act 89-689 may be summarized as follows: (1)section 5 amended the Criminal Code of 1961 by expanding the definitions of "escape" and "aiding escape"(720 ILCS 5/31-6, 31-7 (WestSupp.1997 & West 1998)); (2)...