People v. Wright, No. 5-99-0082

5th District, 2 March 2000

JUSTICE KUEHN delivered the opinion of the court:

The defendant is unhappy with the five-year prison term that Judge Tungate imposed upon his plea of guilty to the offenseof criminal sexual assault. He feels that the sentence was too harsh and seeks its review on appeal.

His guilty plea was entered in return for a promise from the State that it would ask the judge for no more than a five-yearterm. At sentencing, the State was true to its word. It advised the judge that, in its opinion, imprisonment for five yearswould be a fit and proper sentence to impose. Of course, the defendant argued that less punishment was justified. The judgeagreed with the State.

The sentence no doubt displeases the defendant. However, he received the bargain for which he negotiated. He knew whenhe entered his guilty plea that his exposure to more punishment than five years in prison was lessened. The judge wasunlikely to impose more than the recommended punishment. He also knew that a distinct possibility existed that the judgewould follow the recommendation and impose a five-year prison sentence. Notwithstanding, the defendant balked at thepunishment imposed--punishment that should have been anticipated under the plea bargain. He asked the judge toreconsider her sentence. After she denied his written motion to reconsider, he appealed to us.

Clearly, we are not empowered to review the sentence. In order to perfect an appeal from the judgment entered, thedefendant had to first file a motion to withdraw his guilty plea and to vacate the judgment. See People v. Evans, 174 Ill. 2d320, 332, 673 N.E.2d 244, 250 (1996); People v. Linder, 186 Ill. 2d 67, 74, 708 N.E.2d 1169, 1173 (1999). The motion-to-reconsider-sentence provisions of Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)) do not apply to negotiated pleas. SeeEvans, 174 Ill. 2d at 332, 673 N.E.2d at 250. For a defendant to prevail on a challenge to a sentence pursuant to a negotiatedplea, the defendant must move to withdraw his plea and vacate the judgment and show that the relief sought is necessary tocorrect a manifest injustice. See Evans, 174 Ill. 2d at 332, 673 N.E.2d at 250. The rule announced in Evans applies in caseswhere a defendant pleads guilty in exchange for a sentence cap. See Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1172-73. Byagreeing to plead guilty in return for a recommended sentencing cap, the defendant agrees to abide any sentence that fallswithin the recommendation. See Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1172. If the sentence imposed is within the agreed-upon cap, the defendant must seek to withdraw his plea and to vacate judgment. See Linder, 186 Ill. 2d at 74, 708 N.E.2d at1172-73.

The defendant acknowledges the jurisdictional defect. However, he insists that his right to appeal should not lay forfeit. Heasks us to remand the matter to the trial court for proper advice on how to perfect an appeal from a negotiated guilty plea.

The defendant thought that his written motion to reconsider sentence was a necessary step to appellate review of hissentence. He had good reason to think so. The judge told him that before he could file a notice of appeal, he had to fileeither a written motion asking her to reconsider sentence or a motion asking her to allow a guilty plea withdrawal. Theadmonition tracked the warnings called for by Supreme Court Rule 605(b) (145 Ill. 2d R. 605(b)) (Rule 605(b)), a ruledesigned to "ensure, inter alia, that a defendant knows of Rule 604(d)'s requirements regarding appeals from sentencesimposed upon a plea of guilty." People v. Foster, 171 Ill. 2d 469, 473, 665 N.E.2d 823, 825 (1996).

We observe the problem. The judge complied with Rule 605(b) and issued the advice that it calls upon a judge to give afteran imposition of sentence upon a guilty plea. However, when the rule is followed and its admonition is given after asentence is imposed upon a negotiated guilty plea, a defendant is provided with seriously flawed advice on how to perfect adesired appeal. If the defendant follows the admonition and moves to reconsider a negotiated sentence rather than towithdraw the negotiated plea, the misinformation proves fatal to his intention. He fails to invoke appellate jurisdiction. Thatis what happened here.

It is a circumstance that mounts a question we now decide. Does the law provide any remedy to a defendant whose appealfails because he followed faulty information conveyed to him by a judge, even though that judge was mandated by supremecourt rule to provide such information? The defendant's right to appeal rests in the balance. If no remedy exists, thedefendant will not be afforded appellate review.

It is the State's position that those who negotiate a plea and subsequently fall prey to the misdirection of a Rule 605(b)admonition are simply out of luck. Their efforts fall short of what is required to invoke our powers of review. The Statemaintains that a failure to modify the rule's admonition with decisional case law beyond the rule is no excuse for adefendant's failure to file a proper postplea motion.

The State finds support for its position in an analogous situation that occurred after our supreme court decided People v.Wilk, 124 Ill. 2d 93, 529 N.E.2d 218 (1988), and People v. Wallace, 143 Ill. 2d 59, 570 N.E.2d 334 (1991). Those casesheld that the jurisdictional requirements of Supreme Court Rule 604(d) could be satisfied by filing a motion to reconsidersentence in lieu of a motion to vacate guilty plea and that the former was a prerequisite to an appeal if the defendant wishedto challenge his sentence. See Wilk, 124 Ill. 2d at 102-05, 529 N.E.2d at 221-22; Wallace, 143 Ill. 2d at 60, 529 N.E.2d at335.

For a period of time, Rule 605(b) did not conform with these decisions. It did not provide defendants with an admonishmentthat a motion to reconsider sentence was a jurisdictional requirement for an appeal of a guilty plea sentence. Until a changewas made to the rule, judges did not advise defendants on what needed to be done if they wanted to appeal their sentences.Judges simply followed the rule, and its admonitions contained none of the teachings of Wilk and Wallace.

Defendants who attempted to appeal guilty plea sentences awoke to the new jurisdictional requirement, by way of motionsto dismiss filed by the State. We repeatedly refused to fashion a remedy to excuse their failure to file the proper postpleamotion. We dismissed their appeals. We did so despite the fact that the defendants were not told of the proper postpleamotion to file in order to appeal their sentences. See People v. Root, 234 Ill. App. 3d 250, 600 N.E.2d 461 (1992); People v.Rousey, 225 Ill. App. 3d 767, 587 N.E.2d 557 (1992); People v. Theis, 220 Ill. App. 3d 24, 580 N.E.2d 547 (1991); Peoplev. Lawrence, 211 Ill. App. 3d 135, 569 N.E.2d 1175 (1991).

The State draws upon this body of law. It contends that it stands for the principle that where a judge's admonishmentscomply with Rule 605(b), a failure to admonish of intervening decisional law does not excuse a proper postplea motion.Moreover, the State reminds us that we are not the appropriate tribunal to determine the adequacy of rules promulgated bythe supreme court. It suggests that our task is limited to policing the circuit court's compliance with those rules and that, aspreviously noted, there was substantial compliance in this case.

The defendant counters that the State misses the point. The State relies upon cases where defendants were not told that inorder to challenge their sentences they had to file a motion to reconsider. Thus, defendants lost their right to appeal out ofignorance that flowed from an absence of judicial instruction. The defendant suggests that it is one thing to deny a remedywhere a defendant complains of incomplete information and that it is quite another to deny recourse to a defendant whorelies upon and follows inaccurate information tendered to him by a judge. The defendant challenges the State to produce acase where a defendant was penalized or lost rights by complying with legally inaccurate judicial instruction.

Our supreme court has recognized that a denial of the right to appeal in a criminal case can be subject to due process andequal protection challenge under the federal and state constitutions, even though the right to appeal is not, per se, ofconstitutional dimension. See Wilk, 124 Ill. 2d at 105, 529 N.E.2d at 222. The United States Constitution does not requirethe States to afford convicted defendants a right of appellate review. See Evitts v. Lucey, 469 U.S. 387, 393, 83 L. Ed. 2d821, 827, 105 S. Ct. 830, 834 (1985). If, however, a State creates appellate courts as "'an integral part of the *** system forfinally adjudicating the guilt or innocence of a defendant,' [citation], the procedures used in deciding appeals must comportwith the demands of the Due Process and Equal Protection Clauses of the Constitution." Evitts, 469 U.S. at 393, 83 L. Ed.2d at 827, 105 S. Ct. at 834.

In Illinois there is a constitutional and statutory right to appeal a criminal conviction. See Ill. Const. 1970, art. VI,