Opinion
No. 1-12-0088
06-28-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NICO LEWIS, 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. 08 CR 10442
Honorable
Nicholas R. Ford,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Sterba and Pierce concurred in the judgment.
ORDER
¶ 1 Held: Denial of defendant's motion to withdraw his guilty plea is affirmed where defendant's motion was untimely filed. ¶ 2 Pursuant to a fully negotiated guilty plea, defendant, Nico Lewis, was convicted of first degree murder and aggravated kidnaping and sentenced to consecutive terms of 36 years' and 10 years' imprisonment, respectively. Defendant filed a motion to withdraw his guilty plea more than 30 days later. The trial court ultimately determined that it lacked jurisdiction over defendant's motion and denied the motion without addressing its merits. On appeal, defendant concedes that his motion was untimely under Supreme Court Rule 604(d) (eff. July 1, 2006), but argues that the trial court's admonitions under Supreme Court Rule 605(c) (eff. Oct. 1, 2001) were defective and that we should invoke the "admonition exception" to Rule 604(d) and remand for proper admonishments. We affirm the trial court's denial of defendant's motion to withdraw his guilty plea. ¶ 3 On February 23, 2011, defendant pled guilty to one count of first degree murder and one count of aggravated kidnaping for the strangulation death of Tenika Hinton. After finding that the parties' stipulation to the factual basis for the plea was sufficient to prove defendant guilty beyond a reasonable doubt, the trial court sentenced defendant to 36 years' imprisonment for the first degree murder count and 10 years' imprisonment for the aggravated kidnaping count, to be served consecutively. After sentencing defendant, the trial court told defendant,
"It's important you understand, Nico, that although you pled guilty here today, you still enjoy an absolute right to appeal. In order to appeal you must first, within 30 days, file in this court a written motion to have the judgment vacated and for leave to withdraw your plea of guilt."The trial court further told defendant that "[i]f [the motion to vacate judgment and leave to withdraw guilty plea] were denied, you'd have 30 days to appeal that denial. You'd have to give notice of that appeal to the Clerk of the Court. In that circumstance we'd get you a free attorney and a free transcript of today's plea." Defendant filed his motion to withdraw the guilty plea on May 2, 2011, more than 30 days after pleading guilty. Defendant claimed that he mailed the motion on April 12, 2011. Even accepting this earlier date, the motion was filed more than 30 days after the guilty plea, which was entered on February 23, 2011. ¶ 4 On appeal, defendant argues that this admonition regarding his right to an attorney did not substantially comply with Rule 605(c) where the judge never informed defendant that he had the right to assistance of counsel in preparing the motion to withdraw his plea and also in affirmatively stating that defendant would only be provided assistance of counsel in the event his motion to withdraw was denied and defendant sought to appeal that denial. Therefore, defendant argues, his untimely filing should be excused because had he been properly admonished regarding his right to an attorney's assistance in preparing his post-plea motion, then his motion would have been timely filed. ¶ 5 Although the parties arguments focus on the admonition exception, we believe a more fundamental question is the trial court's jurisdiction to consider this challenge to defendant's guilty plea. We find that the trial court properly ruled that it lacked jurisdiction over defendant's motion to withdraw his guilty plea because it was divested of subject matter jurisdiction after 30 days elapsed from the date that defendant was sentenced. See People v. Flowers, 208 Ill. 2d 291, 303 (2003). Because the circuit court had no jurisdiction to consider defendant's Rule 604(d) motion, the appellate court, in turn, has no authority to consider the merits of defendant's appeal. Flowers, 208 Ill. 2d at 307. Therefore, we affirm the trial court's denial of defendant's motion to withdraw his guilty plea. See People v. Price, 364 Ill. App. 3d 543, 546 (2006) (affirming the trial court's denial on jurisdictional grounds of an untimely filed motion to withdraw a guilty plea). ¶ 6 We therefore affirm the judgment of the circuit court of Cook County. ¶ 7 Affirmed.