People v. Jogi , 317 Ill. App. 3d 532 ( 2000 )

6 December 2000 NO. 4-98-0623

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

TEJPAUL SINGH JOGI, ) No. 95CF1225

Defendant-Appellant. )

) Honorable

) Jeffrey B. Ford,

) Judge Presiding.

_________________________________________________________________

JUSTICE McCULLOUGH delivered the opinion of the court:

Defendant Tejpaul Singh Jogi appeals from the May 1998 order of the circuit court of Champaign County denying his November 1997 petition for relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-8 (West 1996)) following an evidentiary hearing.  In the underlying action, defendant pleaded guilty to aggravated battery with a firearm (720 ILCS 5/12-

4.2(a)(1) (West 1994)), and the trial court sentenced him to 12 years' imprisonment.  Defendant entered the partially negotiated guilty plea pursuant to negotiations in which the State agreed to request a sentence of no more than 25 years.  Defendant filed a motion to reconsider his sentence but did not file a motion to withdraw the guilty plea.  This court affirmed the conviction and sentence.   People v. Jogi , 291 Ill. App. 3d 1142 (September 24, 1997) (unpublished order under Supreme Court Rule 23) (No. 4-96-

0995).

In his direct appeal, defendant attempted to raise the issue of his sentence being excessive.  Because defendant failed to file a motion to withdraw his partially negotiated guilty plea, the issue was deemed waived on the basis of the rationale in People v. Evans , 174 Ill. 2d 320, 332, 673 N.E.2d 244, 250 (1996), and People v. Catron , 285 Ill. App. 3d 36, 37, 674 N.E.2d 141, 142 (1996).   People v. Jogi , slip order at 2-3.  Subsequently, the Supreme Court of Illinois, citing Catron with approval, decided that a defendant who pleaded guilty pursuant to a partially negotiated guilty plea may not raise on appeal the issue of whether his sentence is excessive unless he moves to withdraw his guilty plea, and the failure to do so requires the appellate court to dismiss the appeal.   People v. Linder , 186 Ill. 2d 67, 74, 708 N.E.2d 1169, 1172-73 (1999).

In this appeal from the denial of the postconviction petition, defendant argues this cause should be remanded to allow him to file a motion to withdraw his partially negotiated guilty plea because he was denied due process and the right to appeal.  In our original decision, we affirmed.   People v. Jogi , 308 Ill. App. 3d 302, 719 N.E.2d 798 (1999).  However, the supreme court in the exercise of its supervisory authority has vacated our original disposition and directed this court to reconsider the cause in light of its recent decision in People v. Diaz , 192 Ill. 2d 211, 735 N.E.2d 605 (2000).   People v. Jogi , 191 Ill. 2d 547 (2000) (nonprecedential supervisory order).  We find Diaz supportive of our original decision and continue to affirm.

Defendant argues that, since he filed a motion to reconsider the sentence rather than a motion to withdraw the guilty plea consistent with the admonitions he was given after pleading guilty, it was a constitutional violation for this court to refuse to consider on the merits the issue of the excessiveness of the sentence.  We disagree.  As the analysis in Linder demonstrates ( Linder , 186 Ill. 2d at 74, 708 N.E.2d at 1172-73), this court reached the correct result (refusal to consider the issue), although for the wrong reason (waiver).   Linder clearly indicates that this court was without authority to entertain that issue and could not have granted the relief sought on direct appeal.  The actions of this court did not violate defendant's rights to due process or to appeal.  

Diaz followed and applied the rationale in Linder .   Diaz , 192 Ill. 2d at 222-23, 735 N.E.2d at 610-11.  In Diaz , the supreme court explicitly stated that a motion to withdraw a guilty plea is required whenever the State makes a sentencing concession as part of the plea agreement.   Diaz , 192 Ill. 2d at 225, 735 N.E.2d at 612.

We note that defendant does not raise in this appeal an issue concern­ing ineffective assistance of appellate counsel on direct appeal in failing to raise an issue of the ineffectiveness of trial counsel based on the failure to file a motion to withdraw the guilty plea.  See People v. Salazar , 162 Ill. 2d 513, 520, 643 N.E.2d 698, 702 (1994) (the question of the effectiveness of appellate counsel on direct appeal may appropriately be addressed in a postconviction proceeding).  Defendant did allege in his postconviction petition that his trial counsel was ineffective for filing a motion to reconsider the sentence instead of a motion to withdraw the guilty plea.  On appeal, defendant concedes the trial court correctly rejected this claim because the supreme court's decision in Evans , 174 Ill. 2d at 332, 673 N.E.2d at 244 (requiring the filing of a motion to withdraw a negotiated guilty plea in order for an excessive sentence issue to be raised), was decided and not published until after defendant had filed his motion to reconsider the sentence.  Even assuming defendant has not waived the issue of ineffective assistance of trial counsel by failing to raise it on direct appeal (see People v. Tenner , 175 Ill. 2d 372, 378, 677 N.E.2d 859, 862 (1997) (issues that could have been raised on direct appeal but were not are waived for purposes of postconviction proceedings)), the Linder decision rejected the reasoning relied on by defendant in his concession.   Linder , 186 Ill. 2d at 75, 708 N.E.2d at 1173.

In this case, defendant pleaded guilty on July 9, 1996; the trial court sentenced him on August 29, 1996; the public defender filed the motion to reconsider the sentence on behalf of defendant on September 11, 1996, and private counsel entered an appearance on behalf of defendant on November 12, 1996; and the trial court denied it on November 22, 1996.  The Evans opinion was filed on September 19, 1996.   Evans , 174 Ill. 2d 320, 673 N.E.2d 244.  As stated in Linder , when Evans was announced it applied to all cases then pending and this court had no authority to find otherwise. Linder , 186 Ill. 2d at 75, 708 N.E.2d at 1173.

Defendant also contends that he was denied due process because the admonitions given after he pleaded guilty, although conforming to Supreme Court Rule 605(b) (145 Ill. 2d R. 605(b)), did not conform to the principles announced in Evans and Catron .  Defendant also argues this violated his right to appeal pursuant to section 6 of article VI of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VI, §6).

Generally, a voluntary guilty plea waives all errors or irregularities that are nonjurisdictional, including those relating to constitutional rights.   People v. Mendoza , 48 Ill. 2d 371, 374, 270 N.E.2d 30, 32 (1971); People v. Newell , 41 Ill. 2d 329, 331, 243 N.E.2d 200, 201 (1968); People v. Robinson , 25 Ill. App. 3d 52, 58, 322 N.E.2d 505, 508 (1975).  Nevertheless, Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)) provides defendants the opportunity to appeal following a guilty plea and sets forth the procedure for doing so.  In this case, defendant does not challenge the constitu­

tionality of the procedures set forth in Rule 604(d).  Defendant's argument concentrates on the admonitions given by the trial court as required by Rule 605(b), in spite of the fact that it is Rule 604(d) that has been modified by Evans and its progeny.

Rule 605(b) states, in relevant part:

"In all cases in which a judgment is entered upon a plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows:

(1) that he has a right to appeal;

(2) that prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the trial court reconsider the sentence or to have the judgment vacated and for leave to withdraw his plea of guilty, setting forth his grounds for the motion;

* * *

(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 recon­

sider the sentence or to vacate the judgment and to withdraw his plea of guilty shall be deemed waived."  145 Ill. 2d R. 605(b).

These admonitions must be given to a defendant by the trial judge when imposing sentence following a guilty plea.  "Rule 605(b) complements Rule 604(d) and serves as a corollary to the require­

ments of Rule 604(d)."   People v. Jamison , 181 Ill. 2d 24, 27, 690 N.E.2d 995, 997 (1998).  Although strict compliance with Rule 605(b) is required ( Jamison , 181 Ill. 2d at 31, 690 N.E.2d at 998), the failure to give such admonitions does not rise to the level of constitutional error ( People v. Cox , 53 Ill. 2d 101, 106, 291 N.E.2d 1, 4 (1972), overruled on other grounds by People v. Davis , 156 Ill. 2d 149, 159, 619 N.E.2d 750, 756 (1993); People v. Covington , 45 Ill. 2d 105, 108, 257 N.E.2d 106, 108 (1970)).  Therefore, even if Evans modifies Rule 604(d), the failure to give an admonition consistent with Evans is not constitutional error and did not violate defendant's rights to due process and appeal.  As a corollary matter, the failure to give an admonition not required by Rule 605(b) is also not a violation of defendant's right to due process and to appeal.  See People v. Rousey , 225 Ill. App. 3d 767, 769, 587 N.E.2d 557, 558 (1992).  Since postconviction relief is limited to constitutional depriva­tions ( People v. Coleman , 183 Ill. 2d 366, 380, 701 N.E.2d 1063, 1071 (1998)), the failure to admonish in accordance with Evans does not form the basis for postconviction relief.

Distinguishable from the case at bar is People v. Clark , 183 Ill. 2d 261, 271, 700 N.E.2d 1039, 1044 (1998), in which the supreme court reversed and remanded to allow the defendant to file a motion to withdraw the guilty plea.  In Clark , the proceedings in the trial court had taken place two years prior to the decision in Evans , and defense counsel and the trial court did not have the benefit of the Evans decision.   Clark , 183 Ill. 2d at 270, 700 N.E.2d at 1044.   Clark appears to be limited to the facts of that case.  In Linder , 186 Ill. 2d at 73-75, 708 N.E.2d at 1172-73, the court discussed Clark and, nevertheless, refused to remand to allow the filing of a motion to withdraw the guilty plea in a situation where Evans was decided while the defendant's case was still pending in the trial court.  In the case at bar, trial counsel had the opportunity to ask to modify the motion to reconsider the sentence to comply with the decision in Evans .  That was not done.

Also distinguishable from this case is defendant's supplemental authority of People v. Wright , 311 Ill. App. 3d 1042, 725 N.E.2d 811 (2000), and People v. Didier , 306 Ill. App. 3d 803, 806-07, 715 N.E.2d 321, 323-24 (1999).   Wright , 311 Ill. App. 3d at 1043, 725 N.E.2d at 812, and Didier , 306 Ill. App. 3d at 805, 715 N.E.2d at 322, involved direct appeals and not postconviction proceedings in which the challenge to the trial court's admonitions had not been raised on direct appeal.  In addition, the court in Didier distinguished that case from Linder because, in Didier , the sentence exceeded the statutory limit, an issue not waived by the failure to file a motion to withdraw a guilty plea ( Didier , 306 Ill. App. 3d at 806, 715 N.E.2d at 323).  

Similar to Clark , all of the relevant events in Diaz occurred before the decision in Evans .   Diaz , 192 Ill. 2d at 227, 735 N.E.2d at 613.  In this case, the Evans decision was "an

nounced" at a time when defense trial counsel had an opportunity to file a timely motion to withdraw the guilty plea.  In addition, defendant concedes that he was fully admonished pursuant to Rule 605(b).  Therefore, unlike Clark , this case does not involve misleading admonitions.  Again, the claim of ineffective assistance of defense trial counsel was waived by the failure to raise it on direct appeal, and defendant's postconviction petition does not allege ineffective assistance of appellate counsel in failing to raise the issue of ineffective assistance of trial counsel on direct appeal.  Moreover, the recent decision in Diaz does not state that the trial court's giving of admonitions in conformance with Rule 605(b) amounts to a violation of due process in light of Evans and its progeny.

The judgment of the circuit court of Champaign County is affirmed.

Affirmed.

STEIGMANN, P.J., and GARMAN, J., concur.