People v. Thompson

• Decision Date: 05 July 1977
• Docket Number: No. 13900,13900
• Citation: People v. Thompson, 365 N.E.2d 255, 50 Ill.App.3d 51, 8 Ill.Dec. 17 (Ill. App. 1977)
• Parties: , 8 Ill.Dec. 17 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Meltara THOMPSON, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 255

365 N.E.2d 255

50 Ill.App.3d 51, 8 Ill.Dec. 17

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Meltara THOMPSON, Defendant-Appellant.

No. 13900.

Appellate Court of Illinois, Fourth District.

July 5, 1977.

Richard J. Wilson, DeputyState Appellate Defender, Springfield, for defendant-appellant.

Robert J. Bier, State's Atty., Quincy, Robert C. Perry, Principal Atty., Ill. State's Attys.Assn., Statewide Appellate Assistance Service, Springfield, James G. Condon, Staff Attorney, Springfield, of counsel, for plaintiff-appellee.

STENGEL, Presiding Justice.

DefendantMeltara Thompson appeals the order of the Circuit Court of Adams County denying his motion to withdraw a guilty plea and vacate judgment.Defendant's appointed attorney negotiated a guilty plea to a charge of attempt (armed robbery) in exchange for dismissal of charges on aggravated assault and burglary.The trial judge explained the nature of the charge, the defendant's right to plead not guilty and to request a jury or bench trial, and the possible penalties which could be imposed.After making certain that there was a factual basis for the guilty plea and that the defendant understood the charge against him, the nature of the plea negotiations and the range of sentencing possibilities, the judge accepted his guilty plea.

The presentence report indicated the defendant was 17 years old and had been arrested for 16 prior juvenile offenses and various adult offenses, including the dismissed charges and a pending theft charge.The trial judge stated that he would disregard any juvenile incidents which were "adjusted at the station" in passing sentence.The judge considered, but rejected, the possibilities of probation and periodic imprisonment, which were recommended, respectively, by a probation officer and the defendant, and instead imposed a prison sentence of three to nine years for attempt (armed robbery).Defendant immediately moved to withdraw his guilty plea and vacate the judgment, and the court appointed the same attorney who had negotiated the plea to represent him on this motion.

Defendant, his attorney and the prosecutor were all present at the subsequent hearing on defendant's motion.Neither side presented any testimony, and the judge denied defendant's motion solely on the basis of the transcript of the hearing at which he pleaded guilty.

Defendant contends that the trial judge erred by not appointing a different attorney to represent him on his motion, that his attorney's failure to file a certificate of compliance with Supreme Court Rule 604(d), (Ill.Rev.Stat.1975, ch. 110A, par. 604(d) ) requires us to remand his case for a new hearing, and that his sentence was excessive.We believe these contentions are without merit and therefore affirm the judgment of the Circuit Court of Adams County.

To begin with, defendant misconstrues the effect of his failure to file a 604(d) certificate in the trial court.In this connection he relies on the case of People v Samuels(5th Dist.1976), 42 Ill.App.3d 642, 1 Ill.Dec. 375, 356 N.E.2d 563, wherein the appellate court reversed a trial court's denial of defendant's motion to withdraw a guilty plea because of his attorney's failure to file a 604(d) certificate and the lack of any transcript from the hearing on this motion.While the lack of a transcript was central to the decision in Samuels, we are presently faced with a materially different set of facts.In our case, unlike Samuels, the record indicates that the defendant had sufficient time to discuss his case with counsel, that he was not coerced into pleading guilty and that he was given the opportunity to be heard in open court, but did not indicate any dissatisfaction with counsel.The record also shows, inter alia, that defendant's attorney objected to portions of the presentence report at the sentencing hearing, that it was he who suggested the motion to withdraw after his client moved the court for an immediate appeal at the conclusion of sentencing, that defense counsel's motion raised multiple grounds for vacating the plea and that counsel obtained a writ of habeas corpus ad testificandum to insure his client's presence at the hearing on the motion to withdraw.

Under these circumstanceswe think a 604(d) certificate could be filed during the pendency of the appeal.We approved of this procedure in People v. Chesnut(3d Dist.1977), 47 Ill.App.3d 324, 5 Ill.Dec. 657, 361 N.E.2d 1185, where the record showed that defense counsel communicated with the defendant to ascertain the grounds for the motion to withdraw and made amendments to the motion at the time of the hearing.Accordingly, the People should be and are hereby granted leave to obtain and file with the clerk of this court an appropriate certificate of appointed defense counsel.

In our view the rule of strict compliance stated in Samuels only operates where the record fails to disclose counsel's substantial compliance with the requirements of Rule 604(d).(SeePeople v. Norris(1st Dist.1977), 46 Ill.App.3d 536, 5 Ill.Dec. 105, 361 N.E.2d 105.)In fact where "every function of trial counsel contemplated by the rule (is) performed," the failure to file any certificate, either in the trial court or during appeal, may be harmless error.(People v. Evans(4th Dist.1977), 46 Ill.App.3d 689, 690, 5 Ill.Dec. 77, 361 N.E.2d 77.)Accordingly, we do not think anything would be gained by remanding this case to the trial court for a new hearing on the motion to withdraw.

We also disagree with defendant that the trial court erred by failing to appoint different counsel to represent him on his motion.Defendant relies on the cases of People v. Terry(1970), 46 Ill.2d 75, 262 N.E.2d 923, andPeople v. Smith(1967), 37 Ill.2d 622, 230 N.E.2d 169, to support his claim that he was denied effective assistance of counsel.In Terry, the defendant pleaded guilty to a drug charge negotiated by the public defender, and was later represented by another public defender on a petition for post-conviction relief alleging, inter alia, ineffective assistance of counsel.In granting defendant relief the supreme court stated that the conflict of interest facing the public defender's office between its reputation and its duty to the defendant required the trial court to appoint counsel other than the public defender to represent defendant on his petition.Smith involved a similar situation except that the case went to trial.

Defendant's reliance is misplaced since, unlike Terry and Smith, he did not allege ineffective assistance of counsel as a basis for his motion.Defendant, however,...