Opinion
No. 1-12-1212
12-18-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT NATHANIEL, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 10 CR 17687
Honorable
William J. Kunkle,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Hyman and Justice Pucinski concurred in the judgment.
ORDER
¶ 1 Held: Defendant's appeal must be dismissed when he failed to file a motion to withdraw his guilty plea and vacate the judgment prior to filing a pro se notice of appeal. ¶ 2 Defendant Robert Nathaniel entered a negotiated plea of guilty to the Class X felony of aggravated driving under the influence and was sentenced to six years in prison. Defendant then filed a pro se notice of appeal. On appeal, defendant contends that the trial court erred when it did not appoint counsel to assist him in withdrawing his guilty plea when he demonstrated, in a pro se notice of appeal, a desire to appeal from his guilty plea with the assistance of counsel. We dismiss. ¶ 3 On January 12, 2012, defendant entered a negotiated plea of guilty to the Class X felony of driving under the influence of alcohol, sixth or greater offense with a blood alcohol level in excess of .16, in exchange for a prison sentence of six years. After informing defendant of the possible penalties associated with the charge and hearing a recitation of the factual basis for the charge, the trial court accepted the plea. At sentencing, the court admonished defendant that although he had entered a guilty plea in this case, he had:
"the right to appeal. However, in order to appeal from the sentence and judgment, based on a plea of guilty, within 30 days of today's date, you must file with the Clerk of the Court a written motion asking to withdraw your plea of guilty and vacate the judgment. In that motion, you must set forth all the reasons why you want to withdraw your guilty plea. If you were to file such a motion, I would hold a hearing on that motion. If I granted it, we would start over and will have a trial. At such a trial, you should understand that the State would have the right to reinstate all of the counts that were dropped as part of the plea agreement and negotiations.¶ 4 The court then asked defendant if he understood these rights and defendant indicated that he did. On February 27, 2012, defendant was sentenced to six years in prison. ¶ 5 Defendant then filed, pro se, a notice of appeal and motion for appointment of appellate counsel with this court. The notice of appeal was then forwarded to the circuit court and filed on March 30, 2012. ¶ 6 On appeal, defendant contends that the trial court erred when it failed to appoint counsel to assist him in filing a motion to withdraw his guilty plea when he showed a clear desire to appeal from his guilty plea and to have counsel appointed for that appeal by filing a pro se notice of appeal. In other words, defendant contends that the filing of the pro se notice of appeal and accompanying request for appointed counsel should have been construed as "an expression of his desire for counsel to assist in preparation of his post-plea motion." (Emphasis in original). Defendant further contends that this cause must be remanded to the circuit court for postplea proceedings, including the appointment of counsel, in accordance with Supreme Court Rule 604(d). ¶ 7 Before addressing the merits of defendant's contentions on appeal, this court must address the State's argument that we lack jurisdiction over the appeal because defendant failed to file a timely notice of appeal. The State argues that although defendant contends that his notice of appeal was timely filed on March 22, 2012, the record indicates that the notice of appeal was file-stamped on March 30, 2012, two days after the 30-day filing deadline, that is, March 28, 2012. ¶ 8 Here, the parties agree that defendant's notice of appeal was due by March 28, 2012, 30 days after he was sentenced on February 27, 2012. Although it is true that the record reveals that defendant's pro se notice of appeal was filed in the circuit court on March 30, 2012, the record also contains a letter from this court, dated March 29, 2012, indicating that it had received defendant's notice of appeal and was forwarding it to the circuit court. This court has previously held that when a notice of appeal was "obviously" mailed within 30 days as specified by Rule 606(b), it was timely filed and the fact that the notice of appeal was initially received in the appellate court rather than the circuit court was "of no relevance." People v. White, 333 Ill. App. 3d 777, 780 (2002). In this case, for this court to have received defendant's pro se notice of appeal by March 29, 2012, defendant must have placed it in the prison mail system, at the latest, on the due date of March 28, 2012. See People v. Aldridge, 219 Ill. App. 3d 520, 522-23 (1991) (an incarcerated defendant's motion to withdraw a guilty plea was considered timely filed when defendant's proof of service showed a timely mailing date). Thus, the notice of appeal was timely filed and this court has jurisdiction to consider defendant's appeal. See Supreme Court Rule 606(b) (eff. Mar. 20, 2009) (except as stated in Rule 604(d), the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of that motion). ¶ 9 Turning to the merits of defendant's appeal, pursuant to Supreme Court Rule 604(d) (eff. July 1, 2006), before a defendant can appeal the judgment entered on a guilty plea, he must, within 30 days of the date upon which the sentence was imposed, file in the trial court a motion to withdraw the guilty plea and vacate the judgment. Our supreme court has held that the filing of a Rule 604(d) motion is a "condition precedent" to an appeal from the trial court's judgment on a guilty plea. People v. Flowers, 208 Ill. 2d 291, 300-01 (2003). Generally, the failure to file a Rule 604(d) motion precludes this court from considering a defendant's appeal, and the appeal must be dismissed. Flowers, 208 Ill. 2d at 301. ¶ 10 Here, defendant failed to comply with the requirements of Rule 604(d) when he filed a pro se notice of appeal instead of filing a motion to withdraw his guilty plea and vacate the judgment. Therefore, his appeal must be dismissed. Flowers, 208 Ill. 2d at 301. ¶ 11 Defendant, however, attempts to overcome his failure to file a motion to withdraw the guilty plea and vacate the judgment with two arguments. First, he contends that the trial court erred when it failed to appoint counsel to assist him in filing a motion to withdraw his guilty plea when he showed a clear desire to appeal from his guilty plea and to have counsel appointed for that appeal by filing a pro se notice of appeal requesting the appointment of counsel. In the alternative, he contends that he was not properly admonished pursuant to Rule 605(c) when the trial court told him to file his motion to withdraw the plea with the clerk of court rather than with the trial court. ¶ 12 Defendant first argues that the pro se "notice of appeal" he filed was merely mislabeled as a notice of appeal, when in fact the document was intended to show that he wanted to withdraw his plea and have postplea counsel appointed. ¶ 13 The record reveals that defendant's pro se notice of appeal was captioned "Notice of Appeal," and stated that an appeal was being taken from the circuit court of Cook County in Case No. 10 CR 176870 with a judgment date of February 27, 2012, and a sentence of six years. Consequently, the circuit court clerk and the trial court were not required to treat defendant's clearly titled pro se notice of appeal as a motion to withdraw guilty plea. Instead, the clerk and the trial court acted properly by treating defendant's pro se "Notice of Appeal" according to its caption and, thereafter, taking the steps necessary to make sure defendant was appointed appellate counsel for purposes of that appeal. There is no indication on the face of the document that defendant intended to withdraw his guilty plea and unwittingly labeled the document as a notice of appeal. Rather, the plain language of the document and its accompanying motion requesting appointment of appellate counsel demonstrate that defendant sought to appeal the order of judgment entered in the circuit court. ¶ 14 We reject defendant's claim that his pro se notice of appeal was a substitute for a conventional motion to withdraw his guilty plea. In People v. Frey, 67 Ill. 2d 77 (1977), defendant Frey filed a pro se document titled "notice of appeal" that he argued should have been treated as a motion to withdraw his plea because it was filed within the 30-day period following his conviction. See Frey, 67 Ill. 2d at 80, 83. Our supreme court rejected this argument because the document in question did not follow the requirements of Rule 604(d) or specifically request the withdrawal of the guilty plea. Frey, 67 Ill. 2d at 83. Here, as in Frey, defendant's notice of appeal does not conform to Rule 604(d) or request the withdrawal of his plea, and, consequently, defendant's pro se notice of appeal cannot function as a motion to withdraw the guilty plea pursuant to Rule 604(d). ¶ 15 This court is unpersuaded by defendant's reliance on People v. Barnes, 291 Ill. App. 3d 545 (1997), and People v. Griffin, 305 Ill. App. 3d 326 (1999). In Barnes, the defendant submitted a handwritten letter addressed to the trial judge requesting a modification of her sentence within 30 days following her guilty plea and sentencing. Barnes, 291 Ill. App. 3d at 547. The trial court denied the pro se postplea motion without a hearing or the appointment of counsel. On appeal, the court remanded the cause for the appointment of counsel and the amendment of the defendant's postplea motion because the handwritten letter triggered the trial court's affirmative duty to inquire whether the defendant desired appointed counsel. Barnes, 291 Ill. App. 3d at 550-51. In Griffin, after being admonished by the trial court pursuant to Rule 605(b), the defendant asked the court to clarify the motion requirements of Rule 604(d) and whether he was entitled to the appointment of counsel. Griffin, 305 Ill. App. 3d at 329. Although the trial court told the defendant that he was entitled to the appointment of counsel, it did not advise him further. On appeal, the court remanded the case for the appointment of counsel and the preparation of any postplea motions, finding that the trial court erred when it failed to address the defendant's questions regarding which motions were necessary to perfect an appeal and to receive assistance of counsel, and that the court failed to make a determination as to whether the defendant wanted the assistance of counsel. Griffin, 305 Ill. App. 3d at 330, 332. ¶ 16 Here, however, defendant did not request clarification of the requirements of Rule 604(d), nor did he file a postplea motion pursuant to Rule 604(d) so as to trigger the trial court's duty to inquire whether he required counsel; rather, defendant filed a pro se notice of appeal. Further, the request for counsel accompanying defendant's pro se notice of appeal was a request for the appointment of appellate counsel to represent him on appeal, not a request for the appointment of counsel to help him vacate his guilty plea pursuant to Rule 604(d). Therefore, we find that the trial court did not err when it treated defendant's pro se "Notice of Appeal" just as it was labeled. ¶ 17 Defendant alternatively contends that remand is required because he was not properly admonished pursuant to Rule 605(c)(2) when the trial court failed inform him that prior to taking an appeal, he must file a written motion in the trial court. He argues that instead the trial court told him to file his appeal with clerk of the court. In other words, defendant contends that his failure to comply with Rule 604(d) should be excused by the "admonition exception." ¶ 18 Pursuant to the admonition exception, if the trial court fails to admonish a defendant pursuant to Rule 605 and defendant then tries to appeal without first filing the motion required by Rule 604(d), the cause is remanded to the trial court for strict compliance with Rule 604(d). Flowers, 208 Ill. 2d at 301. This court reviews the proper interpretation of a Supreme Court rule de novo. People v. Dominguez, 2012 IL 111336, ¶ 13. ¶ 19 Here, defendant entered into a negotiated guilty plea. Thus, the trial court was required to admonish him pursuant to Rule 605© that: (1) he had the right to appeal; (2) before appealing, he must file within 30 days in the trial court a written motion that explained his grounds for vacating the judgment and withdrawing the guilty plea; (3) if the court granted the motion the sentence and judgment would be vacated and a trial date set upon those charges; (4) the State may request that charges dismissed as part of the plea be reinstated and set for trial; (5) an indigent defendant will be provided with a transcript of the plea hearing and counsel will be appointed to assist in the preparation of the motions; and (6) any claim not raised in the motion to vacate the judgment and withdraw the plea is waived on appeal. See Rule 605(c) (eff. Oct. 1, 2001). ¶ 20 In People v. Domínguez, 2012 IL 111336, ¶ 11, our supreme court stated that "based on the plain meaning of Rule 605(c), the rule must be strictly complied with in that the admonitions must be given to a defendant who has pled guilty." However, the trial court does not need to read the rule verbatim. Id. Rather, a defendant must be "substantially" advised of the actual content of the rule. Id. So long as a defendant is put on notice of what he must do in order to preserve his right to appeal his guilty plea or sentence, the admonitions are sufficient to impart the substance of the rule and the trial court has substantially complied with Rule 605. Id., ¶ 22. ¶ 21 Here, the trial court's admonishments were sufficient to put defendant on notice of how to perfect his appeal rights. Rule 605(c)(2) provides that a defendant must be informed that before taking an appeal he "must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the judgment vacated and for leave to withdraw the plea of guilty, setting forth the grounds for the motion." See Rule 605(c)(2) (eff. Oct. 1, 2001). The trial court here told defendant that "within 30 days of today's date, you must file with the Clerk of the Court a written motion asking to withdraw your plea of guilty and vacate the judgment. In that motion, you must set forth all the reasons why you want to withdraw your guilty plea. If you file such a motion, I would hold a hearing on that motion. If I granted it, we would start over and will have a trial." Although the trial court did not recite the rule verbatim, the court substantially advised defendant of his appeal rights because he was informed that he had to file a postplea motion within 30 days which included all of his reasons for the withdrawal of his plea and that the trial court would grant or deny such a motion. Dominguez, 2012 111336, ¶ 11. The trial court conveyed the substance of Rule 605(c) to defendant by telling him that he had certain appellate rights, but that he had to file a motion to withdraw his plea within 30 days in order to exercise those rights. See People v. Claudin, 369 Ill. App. 3d 532, 534 (2006) (defendant's failure to file a proper Rule 604(d) motion was not excused when, although the admonishments did not strictly comply with Rule 605(c), they put defendant on notice of the postplea action necessary to preserve his appeal and defendant indicated his understanding of this requirement). Ultimately, remand is not warranted because defendant was informed he had to file a postplea motion in order to exercise his appellate rights and he filed a pro se notice of appeal instead. See Dominguez, 2012 111336, ¶ ¶ 11, 22. "[B]ecause the circuit court properly admonished defendant under Rule 605(b), it was not a violation of defendant's procedural due process rights to hold him 'responsible for noncompliance with the strictures of Rule 604(d).' " People v. Brooks, 233 Ill. 2d 146, 156 (2009), quoting People v. Foster, 171 Ill. 2d 469, 473 (1996). Therefore, as defendant has failed to comply with the requirements of Rule 604(d), this court must dismiss his appeal. Flowers, 208 Ill. 2d at 301. ¶ 22 Appeal dismissed.
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If I were to deny a motion to withdraw your plea of guilty, then you would have 30 days from the date of that denial to file a written notice of appeal. That is what would actually get you a review in the Appellate Court of Illinois. Any issue you didn't raise in your motion to withdraw your plea would be waived for appeal purposes. If you were indigent at the time you wanted to
file a motion to withdraw your plea, a copy of the transcript of proceedings of today's plea of guilty would be provided to you without charge. You would also be provided with the services of an attorney to help you prepare and file such a motion without any cost to you."