IN THE APPELLATE COURT
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, | ) | Appeal from |
Plaintiff-Appellee, | ) | Circuit Court of |
v. | ) | Pike County |
MANUEL L. PRESSEY, | ) | No. 01CF85 |
Defendant-Appellant. | ) | |
) | Honorable | |
) | Richard D. Greenlief, | |
) | Judge Presiding. |
JUSTICE McCULLOUGH delivered the opinion of the court:
On June 27, 2002, defendant, Manuel L. Pressey, pleadedguilty to escape (720 ILCS 5/31-6(a) (West 2000)) in case No. 01-CF-85 and two charges of burglary (720 ILCS 5/19-1(a) (West2000)) in case No. 01-CF-96. In July 2002, the trial courtsentenced defendant to an extended term of 10 years' imprisonmentfor escape to be served concurrently with a 7-year prison termfor both charges of burglary. These sentences are consecutive toa 13-year sentence previously imposed for burglary in case No.01-CF-6. In August 2002, defendant filed a pro se motion toreconsider sentence. On September 5, 2002, following the appointment of counsel, the trial court denied the motion. OnSeptember 23, 2002, counsel filed a motion to reconsider. OnOctober 2, 2003, the trial court denied the counsel-filed motionon the merits.
Defendant appeals, contending this cause should beremanded to the circuit court because of (1) the failure of thetrial court to properly admonish defendant pursuant to SupremeCourt Rule 605(c) (Official Reports Advance Sheet No. 21 (October17, 2001), R. 605(c), eff. October 1, 2001) and (2) the failureof defendant's attorney to file a certificate of compliance thatstrictly complied with the requirements of Supreme Court Rule604(d) (188 Ill. 2d R. 604(d)). The State concedes defendant iscorrect, and we agree. Accordingly, we reverse the trial court'sjudgment and remand with directions.
As stated, defendant pleaded guilty to escape and twocounts of burglary. The plea was tendered as an open plea toescape. However, the State agreed the sentence would be servedconcurrently to the two charges of burglary for which defendantwas pleading guilty at that time.
The trial court admonished defendant of his appealrights as follows:
"Pursuant to Supreme Court Rule 605(b),Mr. Pressey, these are your appeal rights. You have the right to an appeal. Prior totaking appeal, you must file in the trialcourt with Circuit Clerk's Office within 30days of the date on which your sentence isimposed, in other words, 30 days from today'sdate, a written motion asking to have thetrial court reconsider the sentence or tohave the judgment vacated and for leave towithdraw the plea of guilty, setting forththe grounds for the motion. If the motion isallowed, the sentence will be modified or theplea of guilty, sentence[,] and judgment willbe vacated and a trial date will be set onthe charges to which the plea of guilty wasmade. Upon request by the State, any chargesthat may have been dismissed as part of aplea agreement will be reinstated and willalso be set for trial. If you are indigent,a copy of the transcript of the proceedingsat the time of your plea of guilty and sentence will be provided without cost to you,and counsel will be appointed to assist youwith the preparation of the motions. Youshould understand that any appeal taken fromthe judgment on the plea of guilty, any issueor claim of error not raised in the motion toreconsider the sentence or to vacate thejudgment and to withdraw your plea of guiltyshall be deemed waived, in other words, givenup."
In August 2002, defendant filed a pro se motion toreconsider sentence. The motion was denied following the appointment of counsel. On September 23, 2002, defense counselfiled a motion to reconsider. On September 24, 2002, defensecounsel filed a certificate of compliance with Rule 604(d). Counsel certified as follows:
"1.) [Counsel has] consulted with the[d]efendant by mail and in person to ascertain his contentions of error in the sentencing hearing.
2.) [Counsel has] examined the trialcourt file and report of proceedings of thesentencing hearing, and ha[s] made any amendments to the motion necessary for adequatepresentation of any defects in those proceedings."
The trial court denied counsel's motion for reconsideration. This appeal followed.
Defendant argues the trial court did not properlyadmonish defendant pursuant to Rule 605(c), which states:
"In all cases in which a judgment isentered upon a negotiated plea of guilty, atthe time of imposing sentence, the trialcourt shall advise the defendant substantially as follows:
***
(2) that prior to taking anappeal the defendant must file inthe trial court, within 30 days ofthe date on which sentence is imposed, a written motion asking tohave the judgment vacated and forleave to withdraw the plea ofguilty, setting forth the groundsfor the motion[.]" Official Reports Advance Sheet No. 21 (October17, 2001), R. 605(c), eff. October1, 2001.
Defendant and the State discussed and incorporated a sentencingconcession. Specifically, defendant agreed to plead guilty toone count of escape and two counts of burglary in return for hissentences running concurrently. Therefore, a motion to withdrawguilty plea is a precondition to an appeal. See People v. Diaz,192 Ill. 2d 211, 225, 735 N.E.2d 605, 612 (2000) ("if a pleaagreement limits or forecloses the State from arguing for asentence from the full range of penalties available under law, inorder to challenge his sentence, a defendant must first move towithdraw his plea in the trial court").
As stated, because the plea in this case was "negotiated" within the meaning of the rule (Official Reports AdvanceSheet No. 21 (October 17, 2001), R. 605(c), eff. October 1,2001), defendant was required to move to withdraw his guilty pleabefore perfecting an appeal. However, in this case, the trialcourt wrongly admonished defendant that prior to taking anappeal, he must file "a written motion asking to have the trialcourt reconsider the sentence or to have the judgment vacated andfor leave to withdraw the plea of guilty." When the trial courtfails to properly admonish a defendant how to perfect an appealfrom a negotiated guilty plea, and defendant fails to follow Rule604(d), it is appropriate to remand the cause to the trial courtfor proceedings consistent with Rule 605(c). See People v.Jamison, 181 Ill. 2d 24, 29-30, 690 N.E.2d 995, 998 (1998).
Next, defendant argues defense counsel's certificatefailed to comply with the requirements of Supreme Court Rule604(d). The State concedes this point, and we agree.
Supreme Court Rule 604(d) states in pertinent part asfollows:
"The defendant's attorney shall file with thetrial court a certificate stating that theattorney has consulted with the defendanteither by mail or in person to ascertaindefendant's contentions of error in the sentence or the entry of the plea of guilty, hasexamined the trial court file and report ofproceedings of the plea of guilty, and hasmade any amendments to the motion necessaryfor adequate presentation of any defects inthose proceedings." (Emphasis added.) 188Ill. 2d R. 604(d).
The failure to strictly comply with each of the provisions ofSupreme Court Rule 604(d) requires a "remand to the circuit courtfor the filing of a new motion to withdraw guilty plea or toreconsider sentence and a new hearing on the motion." People v.Janes, 158 Ill. 2d 27, 33, 630 N.E.2d 790, 792 (1994).
In conceding defendant is correct, the State citesPeople v. Mast, 305 Ill. App. 3d 727, 734-35, 713 N.E.2d 242,246-47 (1999) (Second District), for the proposition that acertificate stating counsel has examined the trial court file andreport of proceedings of the sentencing hearing is not sufficientto satisfy the strict interpretation of Rule 604(d) under Janes. In Mast, defense counsel filed a certificate of compliance verysimilar to the certificate counsel filed in this case. The Mastcertificate stated, "'I have consulted with the [d]efendant inperson to ascertain his contentions of error in this cause; and*** I have examined the trial court file and report of proceedings of the sentencing hearing.'" Mast, 305 Ill. App. 3d at 734,713 N.E.2d at 246. The Second District found defense counsel'scertificate failed to comply with the requirements of Rule604(d). Mast, 305 Ill. App. 3d at 734, 713 N.E.2d at 246.
Defense counsel's certificate in this case statescounsel has "examined the trial court file and report of proceedings of the sentencing hearing, and ha[s] made any amendments tothe motion necessary for adequate presentation of any defects inthose proceedings." (Emphasis added.) The certificate does notindicate defense counsel reviewed the report of the guilty pleaproceedings. The remedy for failure to strictly comply with therequirements of Rule 604(d) is to remand to the circuit court forthe filing of a new motion and a new hearing on that motion. Janes, 158 Ill. 2d at 33, 630 N.E.2d at 792.
In accordance with the reasons set forth above, wereverse the trial court's judgment and remand this cause forcompliance with Supreme Court Rules 605(c) and 604(d). Defendantshall be allowed to file a new motion to withdraw guilty plea andshall be allowed a new hearing on that motion.
Reversed and remanded with directions.
TURNER and KNECHT, JJ., concur.