Opinion
No. 1-12-3190
04-25-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD BRANCH, 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. 12 CR 6958
Honorable
Nicholas R. Ford,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Rochford and Justice Hall concurred in the judgment.
ORDER
¶ 1 Held: Defendant's failure to file a motion to vacate the judgment and withdraw his guilty plea pursuant to Supreme Court Rule 604(d) (eff. July 1, 2006) before filing a notice of appeal was not excused where the trial court properly admonished him under Supreme Court Rule 605(c) (eff. Oct. 1, 2001); appeal dismissed. ¶ 2 Defendant entered a negotiated guilty plea to being an armed habitual criminal and was sentenced to six years in prison. Defendant now appeals, contending the trial court failed to admonish him adequately under Supreme Court Rule 605(c) (eff. Oct. 1, 2001). We dismiss. ¶ 3 Defendant was charged in a six-count information with one count of being an armed habitual criminal and five other weapons counts. On June 11, 2012, pursuant to a fully negotiated plea agreement, defendant pleaded guilty to being an armed habitual criminal (Count 1) and was sentenced on that count to six years in prison of which he would have to serve 85 percent, plus three years of mandatory supervised release (MSR). Under the terms of the plea agreement, the State nol-prossed the remaining five counts. ¶ 4 After accepting defendant's guilty plea, the trial court admonished him:
"THE COURT: Seventy-seven days [sentencing credit]. Even though you've plead guilty and been sentenced, you still have an absolute right to appeal. In order to appeal, you must, within 30 days, file with the Court, a written motion asking to have the judgment vacated and leave to withdraw the plea.¶ 5 Defendant stated that he understood the court's admonishments. Defendant did not file a motion to withdraw his guilty plea nor did he file a timely notice of appeal. Subsequently, however, we allowed the filing of defendant's late notice of appeal and we appointed counsel. ¶ 6 On appeal, defendant argues that he is entitled to a remand for proper admonishments under Rule 605(c) and an opportunity to move to withdraw his plea because the trial court's admonishments were inadequate in failing to inform him that he had a right to appointed counsel to assist him with his postplea motions. The State responds that the trial court's admonishments substantially complied with Rule 605(c) and a remand is not required. We agree with the State. ¶ 7 This court reviews the proper interpretation of a supreme court rule de novo. People v. Dominguez, 2012 IL 111336, ¶ 13. Supreme Court Rule 604(d) (eff. July 1, 2006) requires that a defendant must file a written postplea motion asking to have the judgment vacated and for leave to withdraw the plea as a condition precedent to appeal from a negotiated guilty plea. Where, as here, defendant fails to file a timely postplea motion pursuant to Rule 604(d), normally we must dismiss the appeal. People v. Flowers, 208 Ill. 2d 291, 301 (2004). An exception to this requirement occurs, however, where the trial court has failed to admonish the defendant adequately of his appeal rights. Id. Where judgment has been entered on a negotiated plea of guilty, the trial court must substantially advise a defendant of his rights under Rule 605(c). Dominguez, 2012 IL 111336, ¶¶ 16-21, 43. The admonishments need not be a strict verbatim recitation of the rule so long as they are sufficient to impart to the defendant the essence or substance of the rule. Id. at ¶¶ 11, 19, 22, 51. If the court substantially complied with Rule 605(c), the appeal must be dismissed. People v. Claudin, 369 Ill. App. 3d 532, 534-35 (2006). If not, the proper remedy is to remand to the trial court so that the defendant may be properly admonished. Flowers, 208 Ill. 2d at 301. ¶ 8 Defendant argues that the trial court failed to admonish him pursuant to Rule 605(c) (5) of his right to assistance of appointed counsel in preparing his postplea motions, because the court's admonishments regarding appointment of counsel were given in the context of an appeal and not the preparation of postplea motions. Rule 605(c)(5) requires that a defendant be put on notice "that if the defendant is indigent, a copy of the transcript of the proceedings at the time of the defendant's plea of guilty and sentence will be provided without cost to the defendant and counsel will be appointed to assist the defendant with the preparation of the motions." ¶ 9 Here, the trial court admonished defendant of the necessity of filing within 30 days a written motion asking to have the judgment vacated and for leave to withdraw his guilty plea. Then the court advised him: "If the Court denies [the motion], you have 30 days to appeal that denial and file a notice of that appeal with the Clerk of the Court. If you couldn't afford it, I would give you a free attorney and free transcript." Our courts have held that a trial court can admonish a defendant sufficiently regarding his rights to transcripts and an attorney, even if the admonishment does not explicitly state that the attorney could assist him with postplea motions. Dominguez, 2012 IL 111336, ¶ 51; In re J.T., 221 Ill. 2d 338, 347-48 (2006); People v. Dunn, 342 Ill. App. 3d 872, 882 (2003). Defendant cites decisions of this court holding to the contrary, but all of those cases predate our supreme court's decision in Dominguez. Here, the court's admonition conveyed the substance of the rule to defendant and complied with Rule 605(c)(5). ¶ 10 Defendant attempts to distinguish Dominguez by arguing that in that case, the trial court complied with Rule 605(c) only because the defendant had also received written admonishments and that in the instant case, unlike Dominguez, there is no indication defendant received written admonishments. Defendant misinterprets the supreme court's holding. Even before referencing the written admonishments, the supreme court ruled that in that case, as in J.T. and Dunn, "the trial court's admonitions did convey the substance of the rule to defendant and complied with Rule 605(c)." Dominguez, 2012 IL 111336, ¶ 51. ¶ 11 Defendant also contends that the trial court failed to inform defendant that he needed to file his Rule 604(d) motion in the trial court as required by Rule 605(c)(2), as distinguished from the appellate court. However, while admonishing defendant, the trial court made no mention of the appellate court or any court other than the trial court in which the proceedings took place. Additionally, defendant asserts that the trial court also violated Rule 605(c)(4) by admonishing him that if his Rule 604(d) motion were allowed, "a trial date will be set on all the charges that were once pending against you." Defendant contends that the court should have admonished him that charges dropped by the State in exchange for his guilty plea would be reinstated and set for trial. We note that "all the charges that were once pending" were, in fact, the charge to which he pleaded guilty and the five charges dismissed by the State in accordance with the plea agreement. Defendant cites no authority to support his claim that these admonishments were not in substantial compliance with Rule 605(c). Bare contentions that fail to cite any authority do not merit consideration on appeal. People v. Nieves, 192 Ill. 2d 487, 503 (2000). ¶ 12 Accordingly, as defendant was admonished adequately pursuant to Rule 605(c), his failure to file a Rule 604(d) motion before filing a notice of appeal cannot be excused by the admonition exception, and we are required to dismiss the appeal. Flowers, 208 Ill. 2d at 301. ¶ 13 Because defendant waived his right to appeal, we cannot reach his argument that the trial court failed to make a finding on the record as to his criminal history as required by section 5-3-1 of the Unified Code of Corrections. 730 ILCS 5/5-3-1 (West 2012). ¶ 14 For the foregoing reasons, we dismiss the appeal. ¶ 15 Appeal dismissed.
That written motion must set forth the grounds and reasons you believe it should be granted in writing and filed within 30 days. If it's granted, the plea, sentence and judgment will be vacated -- excuse me[,] plea of guilty and judgment will be vacated and a trial date will be set on all the charges that were once pending against you.
If the Court denies, you have 30 days to appeal that denial and file a notice of that appeal with the Clerk of the Court. If you couldn't afford it, I would give you a free attorney and free transcript. Any issue or claim of error that you got, you didn't first raise in the motion to vacate the judgment and withdraw the plea of guilty will be waived or given up on appeal."