People v. Petty ( 2006 )

NO. 4-05-0213 Filed 8/2/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
STEPHEN PETTY, ) No. 99CF1219
Defendant-Appellant. )
) Honorable
) John R. Kennedy,
) Judge Presiding.
__________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
In September 2004, defendant, Stephen Petty, filed an
amended postconviction petition. In March 2005, following an
evidentiary hearing, the trial court denied the petition. On
appeal, defendant argues the trial court's denial of his
postconviction petition was manifestly erroneous because his
counsel failed to file a Rule 604(d) certificate (188 Ill. 2d R.
604(d)) prior to the hearing on his first motion to withdraw his
guilty plea. We affirm.
I. BACKGROUND
In August 1999, a grand jury indicted defendant on two
counts of unlawful delivery of a controlled substance (cocaine)
in an amount more than 15 but less than 100 grams, both Class X
felonies (720 ILCS 570/401(a)(2)(A) (West 1998)). In November
1999, the State also charged defendant with a separate count of
unlawful delivery of a controlled substance (cocaine) in an
amount more than 1 but less than 15 grams, a Class 1 felony (720
ILCS 570/401(c)(2) (West 1998)).
In November 1999, defendant entered into a plea agree-
ment with the State whereby defendant agreed to plead guilty to
the Class 1 felony of unlawful delivery of a controlled substance
(5 to 15 grams), in exchange for the State's promise to dismiss
the two-count indictment for the separate Class X felony charges
of unlawful delivery of a controlled substance (15 to 100 grams)
and recommend a sentencing cap of 11 1/2 years. The trial court
accepted defendant's plea, finding that defendant entered into it
knowingly and voluntarily.
In November 1999, defendant sent to the trial judge certain pro se
documents, including a letter indicating he did not wish to plead guilty. Thereafter,
defendant's attorney, Edwin K. Piraino, filed a motion to withdraw the guilty plea or, in
the alternative, a motion to reconsider the sentence. Counsel also filed a Rule 604(d)
certificate.
At the December 1, 1999, hearing on the motion, defen-
dant withdrew his motion to withdraw his guilty plea. On Decem-
ber 10, 1999, the trial court sentenced defendant to an 11 1/2-
year prison term within the State's recommended sentencing cap.
Thereafter, defendant filed a pro se motion to withdraw
his guilty plea. On January 14, 2000, attorney Piraino filed a
motion to reconsider the sentence or, in the alternative, a
motion to withdraw the guilty plea. Counsel did not file a Rule
604(d) certificate.
In February 2000, the trial court held a hearing on
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defendant's motion to withdraw his guilty plea. The State
confessed the motion, stating that the agreed-upon 11 1/2-year
sentencing cap was too lenient. The court granted defendant's
motion to withdraw his guilty plea and informed defendant that
the State would reinstate the two previously dismissed Class X
charges. In February 2000, Piraino withdrew as defendant's
counsel, and Malcolm Barnes was appointed as defendant's counsel.
On June 14, 2000, the day of defendant's trial, defen-
dant entered a second negotiated guilty plea, under which the
State agreed to (1) dismiss count II of the indictment and (2)
forego recommending a discretionary doubling of defendant's
sentence, which would have made defendant eligible for a 30- to
60-year prison term (720 ILCS 570/408 (West 1998)). The trial
court accepted the negotiated plea.
Prior to sentencing, defendant filed a motion to
reinstate his first plea agreement and the respective 11 1/2-year
sentence. The trial court denied the motion.
At the July 7, 2000, sentencing hearing, the trial
court noted that defendant had filed pro se motions to withdraw
his guilty plea and to dismiss the indictments and that defense
counsel had filed a supplemental motion to reinstate defendant's
original plea and sentence. The court found defendant's pro se
motion to withdraw his guilty plea premature since sentencing had
not yet occurred. The court also found defendant's motion to
dismiss the indictments meritless. The court sentenced defendant
to a 30-year prison sentence in accordance with defendant's plea
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agreement.
Following the appointment of new counsel and the denial
of defendant's motion for reconsideration of his sentence and
motion to vacate the second plea, defendant filed a direct
appeal. Defendant argued (1) he received ineffective assistance
of counsel at the time of his second plea agreement, (2) the
trial court failed to admonish him of the consequences of with-
drawing his first guilty plea, and (3) the State failed to
include his prior convictions in the charging instrument as a
basis for seeking an enhanced sentence. This court rejected
defendant's arguments and affirmed the conviction and sentence.
People v. Petty, No. 4-00-0777 (January 3, 2002) (unpublished order under
Supreme Court Rule 23).
In August 2002, defendant filed a pro se verified petition for postconviction
relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-8
(West 2002)). In his petition, defendant alleged that (1) the
attorney that handled his first guilty plea failed to file a
certificate in compliance with Supreme Court Rule 604(d) (188
Ill. 2d R. 604(d)), (2) he was denied due process because he was
not admonished at the time of his plea that a term of mandatory
supervised release was part of the negotiated sentence, and (3)
he received ineffective assistance of counsel prior to his first
guilty plea when his counsel failed to advise or communicate to
him an offer by the State of nine years. The trial court
summarily dismissed defendant=s petition, finding the petition
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frivolous and patently without merit.
On appeal, this court found that defendant's allegation
that his attorney failed to convey a nine-year offer stated a
gist of a constitutional claim. People v. Petty, No. 4-02-0872
(May 25, 2004) (unpublished order under Supreme Court Rule 23).
Therefore, we remanded the cause to the trial court with direc-
tions to appoint counsel for defendant and for the entire peti-
tion to be docketed for second-stage review. Petty, No. 4-02-
0872.
On September 21, 2004, following remand, defendant
filed an amended postconviction petition. The petition realleged
the original three claims. The petition also alleged attorney
Piraino rendered ineffective assistance of counsel because he
failed to file the Rule 604(d) certificate and determine defen-
dant understood the mandatory-supervised-release requirement.
On March 1, 2005, the trial court held an evidentiary
third-stage hearing on the postconviction petition. As is
relevant to the issue on appeal, defendant testified as follows.
Prior to pleading guilty on November 9, 1999, defendant
met with Piraino only once or twice. According to defendant,
Piraino never discussed with him the motion to withdraw the
guilty plea.
However, on cross-examination, defendant admitted
receiving a letter from Piraino dated November 24, 1999. A copy
of that letter is contained in the record on appeal. In that
letter, Piraino advised defendant not to withdraw his guilty
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plea. Piraino also informed defendant that if the trial court
allowed him to withdraw his guilty plea, he would be tried on the
two Class X felonies, each of which carried a penalty of 6 to 30
years' imprisonment. Defendant testified he decided to withdraw
his motion to withdraw his guilty plea and proceed to sentencing.
After the trial court sentenced him to 11 1/2 years'
imprisonment, defendant testified he again filed a pro se motion
to withdraw his guilty plea. Piraino subsequently filed a motion
to withdraw the guilty plea on defendant's behalf but, according
to defendant, never discussed the motion with him. On February
24, 2000, the court held the hearing on the motion and allowed
defendant to withdraw his guilty plea.
The trial court took judicial notice of the court file
and transcripts. Defendant rested, and the State presented its
case. Piraino testified he met with defendant eight or nine
times. After defendant pleaded guilty, defendant told Piraino
that he thought the 11 1/2-year cap was too high, and he wanted
to withdraw his guilty plea. Piraino spoke to defendant in
person to try to talk him out of withdrawing his guilty plea.
Piraino also wrote him a letter asking him to reconsider because
if defendant withdrew his guilty plea, he would receive a
greater sentence. A day before writing that letter, Piraino
prepared the motion to withdraw the guilty plea and filed a Rule
604(d) certificate. Defendant later withdrew that motion to
withdraw the guilty plea.
Piraino testified that after the trial court sentenced
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defendant to 11 1/2 years' imprisonment, defendant would not
speak to Piraino. Piraino believed he was fired. He admitted,
however, that before he withdrew as counsel, he appeared on the
motion to withdraw the guilty plea, which was granted.
On cross-examination, Piraino stated he filed the first
motion to withdraw the guilty plea immediately after getting a
copy of defendant's pro se motion. He did not talk to defendant
prior to filing that motion, despite filing a Rule 604(d) certif-
icate saying he consulted with defendant about the grounds.
Piraino did not recall whether he filed a second motion to
withdraw the guilty plea but admitted he would have followed the
same procedure as he did with the first. He did not recall
filing a second Rule 604(d) certificate because he did not think
he still represented defendant.
Following argument, the trial court found that the
second motion to withdraw the guilty plea did not have an accom-
panying Rule 604(d) certificate. However, the court found that
defendant was not prejudiced by his counsel's failure to file the
certificate because the motion was granted. The court further
found that defendant forfeited the issue by failing to raise it
on direct appeal. Finally, the court noted the failure to file a
Rule 604(d) certificate does not raise an issue of constitutional
deprivation of rights.
This appeal followed.
II. ANALYSIS
The Act (725 ILCS 5/122-1 through 122-8 (West 2004)) provides a means
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by which a defendant may challenge his conviction for violations of federal or state
constitutional rights. People v. Orange, 195 Ill. 2d 437, 447, 749 N.E.2d 932, 938
(2001). To be entitled to postconviction relief, a defendant must establish a substantial
deprivation of federal or state constitutional rights in the proceedings that resulted in the
conviction or sentence being challenged. Orange, 195 Ill. 2d at 447, 749 N.E.2d at 938.
Trial court determinations on postconviction petitions made
after an evidentiary hearing will not be disturbed unless
manifestly erroneous. People v. Morgan, 187 Ill. 2d 500, 528,
719 N.E.2d 681, 697 (1999).
Defendant argues the absence of a Rule 604(d) certifi-
cate renders the withdrawal of defendant's original guilty plea
void. Defendant seeks vacation of his current sentence and a
remand for proceedings on his original motion to withdraw his
guilty plea.
Defendant has forfeited the issue by failing to raise
it on his direct appeal. A postconviction proceeding only addresses
constitutional issues that were not, and could not have been, raised and adjudicated on
direct appeal. People v. Pitsonbarger, 205 Ill. 2d 444, 456, 793 N.E.2d 609, 619 (2002).
The doctrine of res judicata bars issues raised on direct appeal, and issues that could
have been raised, but were not, are forfeited. Pitsonbarger, 205 Ill. 2d at 456, 793
N.E.2d at 619. Because defendant could have raised the issue in his
direct appeal but did not, the issue is forfeited.
Even if we were to address the issue on the merits, we
would find defendant is not entitled to the relief requested.
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Pursuant to Rule 604(d), a defendant may not appeal from a judgment entered on a
plea without first filing a motion to withdraw the guilty plea. 188 Ill. 2d R. 604(d). If only
the sentence is challenged, the defendant must file a motion to reconsider the sentence.
188 Ill. 2d R. 604(d). Counsel representing a defendant who has pleaded guilty must
file in the trial court a certificate stating the following:
"[T]he attorney has consulted with the defendant either by
mail or in person to ascertain defendant's contentions of
error in the sentence or the entry of the plea of guilty, has
examined the trial court file and report of proceedings of the
plea of guilty, and has made any amendments to the motion
necessary for adequate presentation of any defects in those
proceedings." 188 Ill. 2d R. 604(d).
The purpose of the Rule 604(d) motion requirement is to permit the trial
judge who accepted the plea and imposed the sentence to consider any allegations of
impropriety that took place outside the record and correct any error that may have led to
the guilty plea. People v. Shirley, 181 Ill. 2d 359, 361, 692 N.E.2d 1189, 1191 (1998).
The purpose of this certificate requirement is to ensure "counsel has reviewed the
defendant's claim and considered all relevant bases for the motion to withdraw the guilty
plea or to reconsider the sentence." Shirley, 181 Ill. 2d at 361, 692 N.E.2d at 1191.
The certificate requirement "encourages the preservation of a clear record *** of the
reasons why a defendant is moving to withdraw his plea or to reduce sentence."
Shirley, 181 Ill. 2d at 361, 692 N.E.2d at 1191. When Rule 604(d) is violated, the
remedy is to remand for the filing of a new motion and for a new hearing on the motion.
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People v. Janes, 158 Ill. 2d 27, 33, 630 N.E.2d 790, 792 (1994) (reversing trial court's
denial of a motion to withdraw a guilty plea where counsel failed to strictly comply with
Rule 604(d) certificate requirement); People v. Dismuke, 355 Ill. App. 3d 606, 611, 823
N.E.2d 1131, 1135 (2005) (involving insufficient Rule 604(d) certificate).
Whether strict compliance with the Rule 604(d) certificate requirement is
necessary when the trial court grants the motion to withdraw the guilty plea is a matter
of first impression. Given the purpose of the certificate requirement, we conclude that
when the motion to withdraw the guilty plea is granted, the Rule 604(d) certificate
requirement becomes irrelevant. Cf. People v. McCaskill, 298 Ill. App. 3d 260, 268, 698
N.E.2d 690, 695 (1998) (finding that where the defendant did not file a motion to
withdraw his negotiated guilty plea before moving to reduce his sentence, counsel's
alleged failure to file a Rule 604(d) certificate was irrelevant). It makes no sense to
remand the cause for another hearing on a motion to withdraw a guilty plea that has
previously been granted.
Defendant argues that compliance with Rule 604(d) would have provided
him the opportunity to make a fully informed decision about his plan to withdraw his
guilty plea. However, the purpose of the rule is not to protect defendants from their own
poor judgment. The rule ensures that counsel considered all arguments in support of
the motion to withdraw the guilty plea. Whether defense counsel reviewed defendant's
claim and considered all relevant bases for the motion to withdraw the guilty plea is
irrelevant because defendant received the relief he sought in the motion--withdrawal of
his guilty plea.
Moreover, the testimony at the evidentiary hearing
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demonstrated defendant did know the ramifications of withdrawing
his guilty plea so as to permit him to make an informed decision.
Defendant admitted receiving the November 24, 1999, letter from
Piraino informing defendant that if he withdrew his guilty plea,
he would be tried on the two Class X felonies, each of which
carried a penalty of 6 to 30 years' imprisonment.
Defendant also argues that because the filing of a Rule
604(d) certificate is a prerequisite to holding the hearing on
the motion to withdraw the guilty plea, all subsequent procedures
were void. In support of his proposition, defendant cites People
v. Oliver, 276 Ill. App. 3d 929, 932, 659 N.E.2d 435, 438 (1995)
(noting that Janes, 158 Ill. 2d 27, 630 N.E.2d 790, "implicitly
held that the proceedings below were fundamentally flawed, not
merely void due to a technicality").
"A void judgment is one entered by a court that lacks
the power to make or enter a particular order." People v.
Johnson, 338 Ill. App. 3d 213, 215, 788 N.E.2d 152, 154 (2003).
A voidable order is "one entered erroneously by a court having
jurisdiction." People v. Davis, 156 Ill. 2d 149, 155-56, 619
N.E.2d 750, 754 (1993).
A trial court that proceeds with a hearing on a motion
to withdraw a guilty plea without confirming that counsel filed a
Rule 604(d) certificate proceeds in error. See, e.g., Dismuke,
355 Ill. App. 3d at 608, 823 N.E.2d at 1133 (the filing of a Rule 604(d) certificate is a
condition precedent to a hearing on the motion to withdraw the guilty plea). This
does not render the ruling on the motion void. If the court
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denies the motion to withdraw, the cause must be remanded for the
filing of a new motion and for a new hearing on the motion. Dismuke, 355 Ill. App. 3d at
611, 823 N.E.2d at 1135. However, if the court grants the motion, it
is immaterial whether counsel filed a Rule 604(d) certificate
because the defendant received the relief requested.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
TURNER, P.J., and McCULLOUGH, J., concur.
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