No. 3--04--0690
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2005
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 04--CF--308
)
WILLIAM L. HINTON, ) Honorable
) Robert P. Livas,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE BARRY delivered the Opinion of the court:
The defendant, William L. Hinton, was charged with twocounts of aggravated battery (720 ILCS 5/12--4(b)(6) (West 2004))and one count of domestic battery (720 ILCS 5/12--3.2(a)(2) (West2004)). He waived his sixth amendment (U.S. Const., amend. VI)right to counsel and proceeded pro se. The defendant then pledguilty to all three charges pursuant to a fully negotiatedagreement. The trial court sentenced the defendant to twoconcurrent two-year terms of imprisonment for the aggravatedbattery counts.
At the sentencing hearing, the trial court admonished thedefendant that if indigent, he would be appointed counselregarding proceedings on a postplea motion. The defendant thenfiled a pro se motion to withdraw his guilty plea. Thereafter,the court did not appoint counsel for the defendant regarding themotion. The court dismissed the defendant's motion.
On appeal, the defendant argues that the trial court did notcomply with Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d))because it failed to appoint counsel concerning his motion towithdraw the plea. The State contends that the defendant'searlier waiver of the right to counsel applied to the proceedingsregarding his postplea motion. We hold that the defendant'sprevious waiver of the right to counsel was inapplicable to thepostplea proceedings. Thus, we reverse and remand.
BACKGROUND
When the complaint was filed, the trial court appointedcounsel for the defendant. Later, the court granted theappointed attorney's motion to withdraw from the case. Thedefendant stated that he did not wish to be represented bycounsel and that he intended to proceed pro se to a jury trial. The judge questioned the defendant extensively concerning hiswaiver of the right to counsel and repeatedly admonished himregarding the consequences of proceeding pro se. The court thenfound that the defendant had knowingly and intelligently waivedhis right to counsel. The defendant represented himself duringjury selection.
On the date set for trial, the defendant announced to thecourt that he wished to speak with the prosecutor. After thedefendant and the prosecutor conferred, the prosecutor informedthe court that the parties had reached a plea agreement. Thedefendant agreed to plead guilty to the offenses in exchange forthe State's recommendation of a two-year prison sentence. Afterhearing the State's factual basis, the court accepted thedefendant's guilty plea.
The trial court imposed the two-year sentence, and the judgethen admonished the defendant concerning the procedures necessaryto perfect an appeal. Among these admonishments, the judge said,"[I]f you are indigent, *** [a]n attorney would be appointed ***to assist you in the preparation of [a postplea] motion." Thedefendant indicated that he understood the admonishments.
The trial court issued its sentencing order on August 2,2004. On August 10, 2004, the defendant filed a pro se documentwith the court titled "Affidavit." In this document, thedefendant stated, "I *** will like to withdraw, my 'plea ofguilty,' to 'not guilty,' *** and will like to proceed, with a'bench trial'." The court construed the document as a motion towithdraw the guilty plea.
The trial court held a hearing on the defendant's motion onAugust 11, 2004, at which the defendant proceeded pro se. Thejudge asked the defendant to state the reason he wished towithdraw his guilty plea. The defendant said that he was waivinghis right to a jury trial and wished to proceed with a benchtrial. The judge explained to the defendant that he hadpreviously waived his right to a jury trial when he pled guilty. When the judge asked the defendant again for the legal basis towithdraw his guilty plea, the defendant repeated his desire for abench trial. The prosecutor asked the court to strike thedefendant's motion because "[i]t doesn't plead anything that youcan grant relief upon." After further discussion among thejudge, the prosecutor, and the defendant, the judge said, "Atthis moment the motion that [the defendant] has filed has beendismissed. You still have an opportunity to file a legal reasonto allow me to withdraw your guilty plea and sentence imposed." The defendant appealed.
ANALYSIS
The defendant submits that the trial court failed to complywith Rule 604(d) because it did not appoint counsel regarding hismotion to withdraw the guilty plea. The State asserts that thedefendant's earlier waiver of the right to counsel applied to theproceedings concerning the motion to withdraw the guilty plea.
We review a trial court's compliance with supreme courtrules de novo. People v. Jones, 349 Ill. App. 3d 255, 812 N.E.2d32 (2004).
At the time the trial court ruled on the defendant's motion,Rule 604(d) stated that "[n]o appeal from a judgment entered upona plea of guilty shall be taken unless the defendant, within 30days of the date on which sentence is imposed, files in the trialcourt[,] *** if the plea is being challenged, a motion towithdraw the plea." 188 Ill. 2d R. 604(d). When such a motionis filed, "[t]he trial court shall then determine whether thedefendant is represented by counsel, and if the defendant isindigent and desires counsel, the trial court shall appointcounsel." 188 Ill. 2d R. 604(d).
In People v. Wilk, 124 Ill. 2d 93, 529 N.E.2d 218 (1988),the Illinois Supreme Court said that Rules 604(d) and 605(b) mustbe read together. Rule 605(b) states that after a defendant haspled guilty and has been sentenced, the trial court must givecertain admonishments concerning how to perfect an appeal. Amongother admonishments, the court must advise the defendantconcerning the postplea motions he is to file. The court is alsoto admonish the defendant "that if the defendant is indigent, ***counsel will be appointed to assist the defendant with thepreparation of the motions." Official Reports Advance Sheet No.21 (October 17, 2001), R. 605(b)(5), eff. October 1, 2001.
The court in People v. Ledbetter, 174 Ill. App. 3d 234, 528N.E.2d 375 (1988), observed that although Rule 604(d) containslanguage concerning whether an indigent defendant "desirescounsel," Rule 605(b) lacks the "desires counsel" languageregarding appointing counsel. The Ledbetter court pointed outthat, under Rule 605(b), the trial court was required to admonisha defendant that "counsel will be appointed" for an indigentdefendant. Reading the two rules together, the Ledbetter courtheld that a trial court is required to appoint counsel to anindigent defendant, unless the defendant knowingly andintelligently waives the right to counsel granted by Rule 604(d). Citing Ledbetter, this court said that, "the trial judge isobligated to appoint counsel in post-plea proceedings, evenwithout a specific request from an indigent defendant, unless[the court] finds that the defendant knowingly waives the rightto appointed counsel." People v. Barnes, 291 Ill. App. 3d 545,550, 684 N.E.2d 416, 420 (1997).
In this case, the State contends that the defendant'searlier waiver of counsel was applicable to the proceedingsregarding his postplea motion. In other words, the State arguesthat the defendant knowingly waived his right to postplea counselby knowingly waiving his right to counsel at an earlier stage inhis criminal proceedings. See Barnes, 291 Ill. App. 3d 545, 684N.E.2d 416.
The State cites People v. Baker, 92 Ill. 2d 85, 440 N.E.2d856 (1982); People v. Redd, 173 Ill. 2d 1, 670 N.E.2d 583 (1996);and People v. Cunningham, 294 Ill. App. 3d 702, 690 N.E.2d 1389(1997), for the proposition that the defendant's waiver of theright to counsel carried through the proceedings concerning hispostplea motion. Though Baker and Redd concerned whether adefendant's waiver of the right to counsel at trial carriedthrough the sentencing hearing, these two cases did not concernguilty plea proceedings, Rule 605(b) admonishments, Rule 604(d)requirements, and postplea motion proceedings, as in the instantcase. We find Baker and Redd to be procedurally distinguishablefrom the present case, and therefore inapplicable.
In Cunningham, 294 Ill. App. 3d 702, 690 N.E.2d 1389, thedefendant waived his right to counsel and proceeded pro se. Thetrial court accepted the defendant's guilty plea, and he wassentenced. Three days later, the defendant sent a pro se letterto the court asking for a copy of the type of motion an attorneywould file in order to withdraw his guilty plea. In the letter,the defendant indicated that he wished to act as his own attorneyregarding the motion to withdraw the plea. The Cunningham courtruled that, under the circumstances of the case, the trial courtdid not err by failing to ask the defendant if he wished to havecounsel appointed for his motion to withdraw the plea.
We find Cunningham to be factually distinguishable from thepresent case. Unlike the defendant in Cunningham, the defendantin the instant case did not indicate to the trial court that hewished to act as his own attorney regarding the motion towithdraw the guilty plea. Thus, we also find the holding ofCunningham to be inapposite to the present case.
The Illinois Supreme Court has stated that, " '[b]ecause ofthe strict waiver requirements of Rule 604(d) (any issue notraised by the defendant in his motion to withdraw his guilty pleais deemed waived), fundamental fairness requires that thedefendant have the assistance of counsel in preparing andpresenting his [postplea] motion.' " People v. Janes, 158 Ill.2d 27, 35, 630 N.E.2d 790, 793 (1994) (quoting People v.Dickerson, 212 Ill. App. 3d 168, 570 N.E.2d 902 (1991), withapproval).
In this case, the record shows that the defendant knowinglywaived his sixth amendment right to counsel and proceeded pro sethrough the sentencing hearing. However, after the defendant wassentenced, the trial court admonished him, according to Rule605(b), that if he wished to appeal and was indigent "[a]nattorney would be appointed for" him regarding his motion towithdraw the guilty plea. Because the trial court advised thedefendant that counsel "would be appointed" concerning hispostplea motion, the defendant's earlier waiver of counsel wasinapplicable. The trial judge was obligated to appoint counselin the postplea proceedings, even without a specific request fromthe defendant, absent a finding that the defendant had knowinglywaived the right to appointed counsel. See Barnes, 291 Ill. App.3d 545, 684 N.E.2d 416. Because the court did not appointcounsel or obtain a knowing waiver of the defendant's right tocounsel to assist him with his postplea motion, we hold that thetrial court erred as a matter of law by failing to comply withRule 604(d).
CONCLUSION
For the foregoing reasons, we reverse the judgment of theWill County circuit court dismissing the defendant's motion towithdraw the guilty plea, and remand the cause for furtherproceedings.
Reversed and remanded.
LYTTON and SCHMIDT, J. J. concurring.