People v. Tlatenchi

• Decision Date: 27 February 2009
• Docket Number: No. 1-06-1608.,1-06-1608.
• Citation: 391 Ill. App. 3d 705,909 N.E.2d 198
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Maria TLATENCHI, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

909 N.E.2d 198

391 Ill. App. 3d 705

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Maria TLATENCHI, Defendant-Appellant.

No. 1-06-1608.

Appellate Court of Illinois, First District, Sixth Division.

February 27, 2009.

Rehearing Denied July 2, 2009.

Anita Alvarez, State's Atty. of Cook County, Chicago (James Fitzgerald, Ashley Romito, Matthew Connors and Margaret M. Smith, Asst. State's Attys., of Counsel), for Plaintiff-Appellee.

Patricia Unsinn, Deputy Defender of Cook County, Chicago (Jessica Wynne Arizo, Asst. Appellate Defender, of counsel), for Defendant-Appellant.

Justice McBRIDE delivered the opinion of the court:

Defendant, Maria Tlatenchi, appeals from an order of the circuit court granting the State's motion to dismiss her pro se motion to withdraw her guilty plea. On appeal, defendant contends that: (1) the trial court erred in dismissing her motion to withdraw her guilty plea as untimely; (2) defense counsel failed to comply with the requirements of Supreme Court Rule 604(d) (210 Ill.2d R. 604(d)); and (3) the trial court failed to properly admonish her as required by Supreme Court Rule 605(c) (210 Ill.2d R. 605(c)).

On February 21, 2006, defendant indicated her desire to plead guilty to the charge of first degree murder (720 ILCS 5/9-1(a)(3) (West 2002)) in exchange for a sentence of 45 years' imprisonment. Before accepting that plea, the trial court admonished defendant of the possible range of penalties that could attach to that offense and ascertained defendant's understanding of her trial rights and waiver of those rights. Defendant confirmed that the plea was the product of her own free will and that no threats or promises were made to her to induce her to plead guilty. The trial court also admonished defendant that if she was not a United States citizen, a conviction for first degree murder could have the consequence of deportation, exclusion of admission to the United States, or the denial of naturalization. Defendant indicated that she understood.

The State then offered the following factual basis for the plea. According to an oral statement defendant gave to Detective Richard Benbow, on December 14, 2003, defendant and two others robbed a restaurant located at Old Orchard Mall in Skokie, Illinois. Approximately $2000, multiple rolls of quarters, and a bank statement were taken from the restaurant during the robbery, of which defendant retained approximately $400 in cash and some of the rolls of quarters. During the robbery, defendant's brother, Pablo Tlatenchi, struck the victim in the head, stabbed her approximately four times in the neck, and then smashed her head on the floor. The victim, who was the restaurant's co-owner, Jung Yon Jun, subsequently died of multiple stab wounds and blunt trauma to the head. Police later recovered the bank statement and five rolls of quarters from defendant's apartment. Police found human blood and a fingerprint on the bank statement, and analysis revealed that the fingerprint was made by defendant and that the DNA profile of the blood matched defendant's DNA profile. Police also found a piece of paper near the victim's body on which there was a partial shoe impression. Further analysis determined that the shoe impression matched a women's shoe found in defendant's apartment and that sweat from inside that shoe matched defendant's DNA profile. The factual basis for the plea also established that defendant subsequently gave a court-reported statement to an assistant state's attorney in which she recounted essentially the same sequence of events regarding the robbery and murder that she had told the police in her oral statement. Defendant was then sworn and she confirmed that she heard the court recite the facts of the case, including that she gave a court-reported statement, and that in her court-reported statement she told police that she committed the armed robbery and that during the robbery she saw Pablo Tlatenchi stab the victim. The court accepted defendant's plea of guilty, finding that defendant understood the charges against her, the possible range of penalties, and her rights according to the law, that the plea was being entered into freely and voluntarily, and that there was a sufficient factual basis to support the plea. Consequently, the court entered a finding of guilty against defendant and sentenced her in accordance with the terms of the plea agreement.

The trial court then admonished defendant as follows:

"You have a right to appeal that sentence and order. But before you could take an appeal, first you would have to file a motion to vacate or take back your plea of guilty. If you decided to file such a motion, it would have to be filed in writing within thirty days, and it would have to state all the reasons that you think I should consider to allow you to take back your plea of guilty or as to why you think the sentence is not appropriate.

If you cannot afford a transcript of today's proceedings or an attorney to represent you, those would be provided to you free of charge.

If I [were] to grant such a motion, the plea and sentence that I just entered would be vacated, the charges that were dismissed would be reinstated, and we would then set your matter down for trial.

Do you understand all of that?"

Defendant responded that she understood.

Defendant subsequently filed a pro se motion to withdraw her guilty plea. In that motion, defendant asserted that, "I didn't know that after pleading guilty, you didn't have any rights, and I was told that if I would go to trial, I would get the life and I didn't commit the 9-1. I want it [sic] a bench trial." The envelope containing the motion was postmarked March 24, 2006, and the actual motion was file-stamped by the clerk of the court on March 27, 2006. In an "affidavit" attached to the motion, defendant states that she has read and signed the foregoing document and that the statements contained therein are true. The "affidavit" was also file-stamped on March 27, 2006, but it is not dated or notarized. Another document attached to the motion, which was also file-stamped on March 27, 2006, contains a proof of service in which defendant states that she placed the motion in the prison mail system on March 15, 2006. On the same document, below the proof of service, is a "Verification" signed by defendant which states that, "[u]nder penalties as provided by law pursuant to sec. 1-109 of the Code of Civil Procedure, I certify that the statements set forth in the foregoing motion and this affidavit are true and correct except as to matters therein stated to be on information and belief, and as to such matters I certify that I believe the same to be true." Neither the proof of service nor the verification is notarized. Finally, a handwritten note is attached to the motion in which defendant states that, "I'm very sorry, but I couldn't send this papers on time, because I am in in-take so I couldn't get this paper before my deadline. I don't have any movement, I cannot go to the law library."

After receiving defendant's motion, the trial court appointed the public defender to represent her. The State then made an oral motion to dismiss defendant's motion as untimely. Defense counsel responded that the proof of service demonstrated that the motion was timely filed and stated that he had spoken with defendant, who indicated that she did "hand it to the CO in her division on the proper date." The trial court found that the proof of service attached to defendant's motion was "not sufficient to establish that it was properly placed in the U.S. mail in a timely manner," and granted the State's motion to dismiss. The court noted that the proof of service lacked "notarization," and that defendant's own handwritten statement indicated that the motion was not placed in the prison mail prior to the 30-day deadline. This appeal followed.

Defendant first contends that the trial court erred in dismissing her motion to withdraw her guilty plea as untimely.

Supreme Court Rule 604(d) requires that a motion to withdraw a guilty plea and vacate the judgment be filed within 30 days of the date on which sentence is imposed. 210 Ill.2d R. 604(d). The lapse of more than 30 days from sentencing divests the circuit court of jurisdiction to entertain the motion. People v. Flowers, 208 Ill.2d 291, 303, 280 Ill.Dec. 653, 802 N.E.2d 1174 (2003). If, however, such a motion is filed within the 30-day time limit, Rule 604(d) instructs the circuit court to appoint counsel and promptly hear the motion. 210 Ill.2d R. 604(d).

In this case, defendant pled guilty and was sentenced on February 21, 2006. Accordingly, she had until March 23, 2006, to file a motion to withdraw her guilty plea.¹ Defendant's motion was file-stamped by the clerk of the court on March 27, 2006, which is after the 30-day filing period.

However, an incarcerated defendant's motion to withdraw a guilty plea is considered timely filed if it is placed in the prison mail system within the 30-day period, regardless of the date on which the motion is received or file-stamped. People v. Aldridge, 219 Ill.App.3d 520, 523, 162 Ill.Dec. 532, 580 N.E.2d 158 (1991); People v. Pagel, 197 Ill.App.3d 305, 308, 143 Ill. Dec. 124, 553 N.E.2d 1110 (1990). The envelope that contained defendant's motion to withdraw her guilty plea is postmarked March 24, 2006, which is also after the 30-day filing period. However, the "proof of service" attached to defendant's motion states that defendant placed the motion in the prison mail system on March 15, 2006, which is within the 30-day filing period and would therefore render defendant's motion timely.

The primary issue in this case is whether defendant's mailing was sufficient to preserve a timely filing date. This issue necessarily requires us to further determine the manner by which defendant was required to prove that her motion was deposited into the prison mail system on a timely date when the motion...