Opinion
No. 1-04-1392
September 12, 2006. Opinion Withdrawn by the Court September 13, 2006.
Appeal from the Circuit Court of Cook County, Catherine M. Haberkorn, Judge, presiding.
Defendant Joe Ford entered a negotiated plea of guilty to a charge of retail theft and was sentenced to one year of probation. The trial court subsequently found that defendant had violated his probation and sentenced him to five years' incarceration. On appeal, defendant contends that the trial court: (1) failed to admonish him pursuant to Supreme Court Rule 605(b) (188 Ill. 2d R. 605(b)) at the time he entered his guilty plea; (2) improperly rejected his pro se claims of ineffective assistance of counsel during probation violation hearings without examining the basis of his allegations; (3) sentenced him to an excessive five-year term of imprisonment; and (4) failed to admonish him pursuant to Supreme Court Rule 605(a) (Official Reports Advance Sheet No. 21 (October 17, 2001) R. 605(a), eff. October 1, 2001) following the imposition of that sentence.
On February 19, 2003, defendant entered a negotiated guilty plea to a charge of retail theft, a Class 3 felony. The charge was made in connection with an incident that occurred about 3:40 p.m. on January 5, 2002. The factual basis provided for the plea showed that defendant removed three pairs of sunglasses from the Nieman Marcus store on North Michigan Avenue in Chicago, and walked past the last cashier without paying for them. In exchange for his plea of guilty, defendant was sentenced to one year of probation.
The trial court then admonished defendant as follows,
"You have a right to appeal. If you feel I've been wrong or unfair in my decision today, you have a right to appeal that. If you cannot afford a lawyer, I'll appoint one for your [ sic]. If you need a copy of a transcript, I'll get that to you, also. Once thirty days passes by, you waive your rights to appeal. You must motion the case back up before me within the next thirty days and give me some grounds why you wish to do that."
Defendant did not file a motion to withdraw his guilty plea or attempt to perfect an appeal from the judgment entered on it.
On August 11, 2003, the State was granted leave to file a violation of probation (VOP) petition alleging that defendant had committed the offense of retail theft on August 1, 2003. Counsel was appointed to represent defendant on the VOP petition and the new charge. At the status hearings that ensued, defendant complained multiple times about his appointed counsel. Defendant orally alleged that he had no confidence in counsel and questioned counsel's professionalism. Defendant also complained that counsel failed to meet with him and that he did not inform him about his probation violation. The trial court addressed defendant's concerns each time, and defendant affirmed his faith in counsel's abilities. The court also informed defendant that he had, in fact, been arraigned on his probation violation during a previous hearing.
On February 26, 2004, the trial court conducted a hearing on the VOP petition. The parties first stipulated that defendant previously pleaded guilty to felony retail theft in case No. 02 CR 1814. The State then presented evidence which showed that about 12:50 p.m. on August 1, 2003, Obi Uwakwe, a prevention investigator at the Sak's Fifth Avenue store on North Michigan Avenue in Chicago, saw defendant enter the men's store, pick up a white Burberry hat, place it in his left pant pocket, and start to leave the store. Uwakwe observed this action while watching a security monitor in the store's loss prevention office and radioed investigator Jeijuan Bouldin, who was located across the street. After defendant left the store, Bouldin and other investigators detained defendant on Michigan Avenue. Uwakwe then identified defendant, reached into his left pant pocket, and removed the white hat he had stolen from the store. Uwakwe confirmed that the hat was for sale by Sak's Fifth Avenue for $95. Based on this evidence, the trial court found that defendant had violated his probation in case No. 02 CR 1814.
At a presentence hearing on March 24, 2004, defendant again complained about his counsel. He specifically alleged that counsel would not allow him to talk to her supervisor. Counsel denied this accusation, and the assistant State's Attorney confirmed counsel's statement informing the court that she heard counsel tell defendant to call her supervisor. Defendant also alleged in the presentence investigation report:
"I was deprived of my due process rights. I didn't know what evidence was going to be used against me and I have a right to know. There was no fairness. My counsel did not provide effective representation."
On April 22, 2004, the trial court conducted a sentencing hearing. Defense counsel presented an argument in mitigation, and defendant declined the court's invitation to add anything in allocution. The court then sentenced defendant to five years' imprisonment on his conviction of retail theft, and admonished him as follows:
"You have a right to appeal. If you feel that I've been wrong or unfair in the decision of your case today, you have a right to appeal. If you can't afford a lawyer, I'll get one for you. If you can't afford a transcript of the proceedings today, I'll get to that you [ sic], also. Once thirty days passes by, you waive your rights to appeal."
On appeal, defendant contends that the circuit court failed to admonish him under Rule 605(b) at the time he entered his guilty plea. The State initially responds that defendant's failure to file a postplea motion is a jurisdictional defect which requires the dismissal of his appeal. We agree.
The supreme court recently made clear that "[i]n noncapital cases an appeal is perfected by the timely filing of a notice of appeal, and it is this step which vests the appellate court with jurisdiction." In re J.T., 221 Ill. 2d 338, 346 (2006), citing 188 Ill. 2d R. 606(a). Supreme Court Rule 604(d) provides that in order to appeal from a judgment entered on a guilty plea, defendant is required to file in the circuit court a written motion to withdraw his plea or reconsider his sentence. Official Reports Advance Sheet No. 4 (February 16, 2005), R. 604(d), eff. February 1, 2005.
In J.T., 221 Ill. 2d at 346-47, the supreme court held that where defendant has not filed a timely notice of appeal from the order sentencing him to probation, a written motion to withdraw his plea or reconsider his sentence, or a motion for leave to file late notice of appeal, "the appellate court ha[s] no jurisdiction to consider any issues arising from either his guilty plea or his sentence." Consistent with that ruling, we find here that defendant's failure to file any of the aforementioned documents leaves us without jurisdiction to consider any of the issues raised by defendant in this appeal. Accordingly, we dismiss defendant's appeal.
Dismissed.
WOLFSON, P.J., and KARNEZIS, J., concur.