Opinion
No. 1-15-0896
06-28-2017
PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PABLO TEJADA, 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 21652
Honorable Joseph G. Kazmierski, Jr., Judge, presiding.
JUSTICE PUCINKSI delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.
ORDER
¶ 1 Held: Defendant's appeal must be dismissed when, although he was admonished in substantial compliance with Supreme Court Rule 605(c) (eff. Oct. 1, 2001), he failed to file a postplea motion prior to filing a notice of appeal.
¶ 2 Defendant Pablo Tejada entered a negotiated plea of guilty to aggravated battery and was sentenced to 18 months of probation. On appeal, defendant contends that because the trial court failed to adequately admonish him pursuant to Supreme Court Rule 605(c) (eff. Oct. 1, 2001),
the case must be remanded for strict compliance with the rule and an opportunity to file a motion to withdraw the plea. We dismiss.
¶ 3 On February 13, 2015, defendant entered a negotiated plea of guilty to one count of aggravated battery and was sentenced to 18 months of probation. After sentencing defendant, the trial court admonished him:
"You have the right to appeal. However, if you wish to file an appeal or any challenge to your sentence, you must first file in the trial court within 30 days of today's date a motion to withdraw your plea of guilty.
In that motion, you must state all the reasons why you want to withdraw your plea of guilty.
If you cannot afford the cost of an attorney to prepare and present the motion, an attorney would be provided for you free of cost. If I granted your motion, I would vacate your plea of guilty, the sentence, the judgment of conviction and allow you to withdraw your plea of guilty and set your case for trial.
If I denied your motion, then within 30 days of that denial you must file or request the clerk of the court to prepare and file in the trial court a written notice of appeal. You would then be limited, however, on you [sic] right to appeal to those claims of error that you first set out in your motion to withdraw your plea of guilty. If you cannot afford the cost of an attorney or the cost of any transcripts you would need for the motion or the appeal, they would be provided for you free of cost."
¶ 4 The trial court asked defendant if he understood and defendant indicated that he did. Defendant filed a pro se notice of appeal on March 13, 2015.
¶ 5 On appeal, defendant contends the trial court failed to comply with Rule 605(c) when it failed to admonish him that "any charges dismissed by the State pursuant to the plea would be reinstated" if the plea was withdrawn. See Ill. S. Ct. R. 605(c)(4) (eff. Oct. 1, 2001) ("upon the request of the State any charges that may have been dismissed as a part of a plea agreement will be reinstated and will also be set for trial"). He therefore argues that this case must be remanded for proper admonishments and the chance to file a motion to withdraw the plea.
¶ 6 A defendant who wishes to appeal from a judgment entered on a guilty plea must follow the procedure set forth in Supreme Court Rule 604(d), which provides that:
"No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw the plea of guilty and vacate the judgment." Ill. S. Ct. R. 604(d) (eff. Dec. 11, 2014).
¶ 7 In those cases, however, where a defendant appeals without first complying with Rule 604(d), and the circuit court failed to give the proper admonishments set forth in Rule 605, the appeal is not dismissed but remanded to the circuit court for strict compliance with Rule 604(d). People v. Flowers, 208 Ill. 2d 291, 301 (2004). Compliance with Rule 604(d) is a condition precedent to an appeal, and if the defendant fails to meet this requirement the appeal must be dismissed. People ex rel. Alvarez v. Skryd, 241 Ill. 2d 34, 40 (2011).
¶ 8 In the case at bar, defendant entered a negotiated guilty plea. The trial court was therefore required to:
"advise the defendant substantially as follows:
(1) that the defendant has a right to appeal;
(2) that prior to taking an appeal the defendant 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;
(3) that if the motion is allowed, the plea of guilty, sentence and judgment will be vacated and a trial date will be set on the charges to which the plea of guilty was made;
(4) that upon the request of the State any charges that may have been dismissed as a part of a plea agreement will be reinstated and will also be set for trial;
(5) 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; and
(6) that in any appeal taken from the judgment on the plea of guilty any issue or claim of error not raised in the motion to vacate the judgment and to withdraw the plea of guilty shall be deemed waived." Ill. S. Ct. R. 605(c) (eff. Oct. 1, 2001).
¶ 9 The trial court is not required to use the exact language of Rule 605. People v. Dominguez, 2012 IL 111336, ¶ 11. Rather, the court must "substantially" advise the defendant in such a way that he is put on notice of what he must do in order to preserve his right to appeal his guilty plea or sentence. Id. ¶ 22. "[I]n a Rule 605(b) or (c) setting, where a trial court has substantially complied with the rule so as to impart to the defendant the substance of the rule,
automatic remand is not necessary." (Emphasis in original.) Id. We review de novo the trial court's compliance with supreme court rules. Id. ¶ 13.
¶ 10 Here, the trial court told defendant that he had the right to appeal, that if defendant wanted to either appeal or challenge his sentence he must file a motion to withdraw the plea within 30 days and that such a motion must state all the reasons that defendant wanted to withdraw his plea. The court also stated that if defendant could not afford an attorney to prepare the motion, one would be provided for free. The court further stated that if it granted the motion the court would vacate defendant's plea and sentence, permit defendant to withdraw the plea and set the case for trial. We therefore find that the trial court substantially provided the admonishments required by Rule 605(c) when defendant was put on notice that he could challenge the guilty plea but that in order to do so an action on his part, i.e., the filing of a motion in the trial court within 30 days, was required. Id. ¶ 22 (a trial court has substantially complied with the rule when its "admonitions were sufficient to impart to a defendant the essence or substance of the rule"); see also In re J.T., 221 Ill. 2d 338, 347-48 (2006) (while the trial court's admonishments did not strictly comply with Rule 605(c), they were sufficient to put the minor on notice that he could challenge his guilty plea and that some "some action" on his part was required within 30 days if he wished to appeal).
¶ 11 We disagree with defendant that the admonishments were insufficient because the trial court failed to tell him that if his postplea motion was granted any charges dismissed by the State under the plea could be reinstated. Here, defendant was substantially advised of his appeal rights, especially the necessary first step of filing a postplea motion, and so he was not prejudiced by this "missing verbiage." See People v. Crump, 344 Ill. App. 3d 558, 563 (2003) (finding that the
defendant was substantially advised of his appeal rights even though the trial court did not admonish him that he would waive any issues not raised in the motion to withdraw his guilty plea and vacate the judgment or that any "nol-prossed" charges could be reinstated if the motion was granted). See also People v. Claudin, 369 Ill. App. 3d 532, 533-34 (2006) (the trial court substantially complied with Rule 605(c) even though it did not inform the defendant of the consequences of a successful motion to withdraw the plea and vacate the judgment).
¶ 12 We are unpersuaded by defendant's argument that Claudin and Crump were wrongly decided. In Dominguez, our supreme court cited Claudin favorably when determining whether a trial court's admonishments substantially complied with Rule 605(c). Dominguez, 2012 IL 111336, ¶ 54 (citing Claudin, 369 Ill. App. 3d at 534). In that case, the court clarified that the rule did not require admonishments to include "a strict verbatim reading of the rule," rather, "[s]o long as the [trial] court's admonitions were sufficient to impart to a defendant the essence or substance of the rule, the court has substantially complied with the rule." Id. ¶¶ 19-22. Given our supreme court's favorable treatment of Claudin, we disagree with defendant's assertion that the case is inapplicable to the present facts. We therefore decline to depart from these well-reasoned opinions.
¶ 13 For the foregoing reasons, we find that the trial court's admonishments substantially complied with Rule 605(c). Because we have found that defendant was substantially admonished in accordance with Rule 605(c), yet failed to comply with Rule 604(d) before filing a notice of appeal, we cannot consider this appeal on its merits; rather, we must dismiss it. See Flowers, 208 Ill. 2d at 301.
¶ 14 Appeal dismissed.