People v. Merriweather , 2013 IL App (1st) 113789 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Merriweather, 2013 IL App (1st) 113789
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JAMES MERRIWEATHER, Defendant-Appellant.
District & No. First District, First Division
Docket No. 1-11-3789
Rule 23 Order filed September 30, 2013
Rule 23 Order
withdrawn October 11, 2013
Opinion filed October 15, 2013
Held Defendant’s pro se notice of appeal filed following the entry of his
(Note: This syllabus negotiated guilty plea to aggravated unlawful use of a weapon required
constitutes no part of the dismissal of his appeal due to his failure to comply with the
the opinion of the court provisions of Supreme Court Rule 604(d), which prohibits appeals from
but has been prepared judgments entered on guilty pleas unless defendant first files a motion to
by the Reporter of reconsider his sentence, if defendant’s sentence is challenged, or a motion
Decisions for the to withdraw the plea, if defendant’s plea is challenged.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CR-20546; the
Review Hon. Stanley J. Sacks, Judge, presiding.
Judgment Appeal dismissed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Ginger Leigh Odom, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Michelle Katz, Veronica Calderon Malavia, and Kathleen Warnick,
Assistant State’s Attorneys, of counsel), for the People.
Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Presiding Justice Connors and Justice Hoffman concurred in the
judgment and opinion.
OPINION
¶1 Following the entry of a negotiated guilty plea for aggravated unlawful use of a weapon
in the circuit court of Cook County, defendant James Merriweather was sentenced to three
years of imprisonment and a mandatory supervised release (MSR) term of two years.
Subsequently, instead of filing a motion to withdraw his guilty plea, the defendant filed a pro
se notice of appeal before the circuit court. On appeal, the defendant argues that: (1) he had
an automatic constitutional right to counsel following the entry of his negotiated guilty plea,
regardless of whether he has filed a motion to withdraw his guilty plea; (2) his filing of a pro
se notice of appeal automatically triggered his constitutional right to counsel so that defense
counsel may file any necessary postplea motions before perfecting the defendant’s appeal;
and (3) alternatively, the aggravated unlawful use of a weapon statute (720 ILCS 5/24-
1.6(a)(1), (3)(A) (West 2010)) under which he pled guilty was unconstitutional and thus
rendered his conviction void. For the following reasons, we dismiss this appeal.
¶2 BACKGROUND
¶3 On November 5, 2010, the defendant was driving a van near 6105 South Eberhart
Avenue in Chicago, Illinois, when he was stopped by Chicago police officers for committing
a traffic violation. The defendant was unable to produce a valid driver’s license or proof of
insurance, and the police officers placed him under arrest. A search incident to the arrest
revealed a .22-caliber handgun in the defendant’s coat pocket. On November 19, 2010, the
defendant was charged with multiple counts of aggravated unlawful use of a weapon
(AUUW) (counts I to VI), unlawful use or possession of a weapon by a felon (UUWF)
(counts VII and VIII), and felony driving while his driver’s license was suspended or revoked
(count IX).
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¶4 On December 10, 2010, during a court hearing, the trial court appointed an assistant
public defender to represent the defendant. On January 26, 2011, the defendant, represented
by counsel, filed a motion to quash arrest and suppress evidence (motion to quash), in which
he argued that the police lacked probable cause to arrest him and sought to suppress any
evidence stemming from his arrest.
¶5 On April 1, 2011, a hearing on the motion to quash was conducted during which Officer
Caribou testified to the circumstances leading up to the defendant’s arrest. Officer Caribou
testified that at about 10:49 p.m. on November 5, 2010, he was near the intersection of
Eberhart Avenue and 62nd Street in Chicago when he observed the defendant driving a van
at a high speed. He also noticed that the defendant was not wearing a seatbelt. Officer
Caribou acknowledged that his police vehicle was not equipped with a radar device so he
was unable to determine how fast the defendant’s van was traveling. Officer Caribou, along
with his partner Officer Williams, stopped the defendant’s van as a result of the seatbelt
violation. The officers then approached the driver’s side of the defendant’s vehicle, where
Officer Caribou confirmed that the defendant was not wearing a seatbelt, and asked him to
produce a driver’s license and proof of insurance. The defendant was unable to produce these
items and was subsequently placed under arrest. Officer Caribou then searched the
defendant’s person and recovered a .22-caliber handgun from the defendant’s coat pocket.
He testified that the police did not issue any citations to the defendant for speeding. The trial
court then denied the motion to quash, finding that the defendant’s seatbelt violation was
sufficient to justify stopping the defendant’s vehicle, that probable cause existed to place the
defendant under arrest when he was unable to produce a driver’s license and proof of
insurance, and that the police discovered the handgun during a lawful search incident to his
arrest.
¶6 On April 15, 2011, at the next court date, the defendant informed the court that he wished
to file a pro se “motion to reconsider the evidence.” The trial court advised the defendant that
he was not allowed to file any pro se pleadings while he was represented by counsel. The
defendant then informed the court that he wished to proceed pro se. The trial court then
admonished the defendant regarding the charges against him, the possible range of penalties,
and his right to counsel. The defendant indicated that he understood the court’s
admonishments, and the trial court allowed him to proceed pro se.
¶7 On July 26, 2011, the defendant filed a pro se motion to suppress statements he made to
the police officers (motion to suppress), arguing that he was not properly advised of his
Miranda rights. On August 16, 2011, a hearing on the motion to suppress was held during
which Officer Caribou testified that he and his partner, Officer Williams, transported the
defendant to the police station after they arrested him. Officer Caribou advised the defendant
of his Miranda rights at the police station, and the defendant indicated that he understood
them. The defendant then made an incriminating statement to the officers about the
recovered handgun. On cross-examination by the defendant, Officer Caribou testified that
no written waiver of rights was signed. During closing arguments at the hearing, the
defendant argued that his statement to the police was not voluntary in the absence of a signed
written waiver form. Subsequently, the trial court denied the motion to suppress.
¶8 On September 14, 2011, the defendant filed a pro se motion to reconsider the trial court’s
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denial of the motion to quash, which the trial court denied. At the next court date on October
26, 2011, the defendant informed the court that he no longer wished to proceed pro se. The
trial court then reappointed counsel1 to represent the defendant.
¶9 On October 31, 2011, the defendant, represented by counsel, informed the court that he
had “submitted an appeal.” The trial court informed the defendant that he could not appeal
the case on his own because the case was still in progress and the defendant was now
represented by counsel.
¶ 10 On November 1, 2011, the defendant, represented by counsel, entered into a negotiated
plea of guilty to a single count of AUUW (count III), a Class 2 offense. All other charges
(counts I, II, IV to IX) were nol-prossed by the State. In exchange for the negotiated guilty
plea, the State recommended that a sentence of three years of imprisonment and two years
of MSR be imposed against the defendant. The parties also stipulated that the defendant had
a prior conviction for aggravated driving under the influence (aggravated DUI) (case No. 09
CR 05091). The trial court then admonished the defendant regarding the charge against him,
the possible range of sentence, and the constitutional rights he would be waiving by pleading
guilty–all of which the defendant acknowledged he understood and then expressed the desire
to plead guilty. The trial court then found that the evidence adduced in the April 2011
hearing on the motion to quash, and the parties’ stipulation that the defendant was a
convicted felon, were sufficient to establish the factual basis for the AUUW charge (count
III). The trial court also determined that the defendant’s plea of guilty was voluntary and
sentenced him in accordance with the terms of the plea agreement. The trial court then
admonished the defendant as follows:
“[THE COURT]: Mr. Merriweather, even though you’ve been sentenced to a period
of three years in the Department of Corrections based on your plea of guilty followed by
two years MSR once you get out of custody, you still have the right to appeal. Before you
can do that though, you must file in the trial court within 30 days of today’s date a written
motion asking that the judgment be vacated for leave to withdraw your plea of guilty,
setting forth any reasons you have for doing that in the motion in writing. Do you
understand me so far?
[THE DEFENDANT]: Yes, sir.
[THE COURT]: If the motion were made and the motion were allowed, the plea of
guilty, the sentence, the judgment vacated or taken back, the case will be set for trial on
the charge to which you just pled guilty. Do you understand that also[?]
[THE DEFENDANT]: Yes.
[THE COURT]: At the State’s request, any charge that might have been dismissed
as part of the plea agreement, those being Counts 1 and 2 and 4 through 9, will be
reinstated and set for trial also. Do you understand that as well?
[THE DEFENDANT]: Yes.
1
The defendant’s original assistant Public Defender was no longer available. Therefore,
another assistant Public Defender was appointed to represent the defendant.
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[THE COURT]: If you’re indigent, a copy of this transcript will be given to you free
of charge, a lawyer free of charge also, to assist you in preparing the motion if you decide
to file one. Do you understand that as well?
[THE DEFENDANT]: Yes.
[THE COURT]: Any appeal taken from the judgment of the plea of guilty, any issue
or claim of error not put in the motion to vacate the judgment, take back the guilty plea,
will be waived or given up. Do you understand that also?
[THE DEFENDANT]: Yes.”
¶ 11 Subsequently, the defendant did not file a motion to withdraw his guilty plea. Instead, on
November 29, 2011, the defendant filed a pro se notice of appeal, which alleged that defense
counsel provided ineffective assistance and that the State “failed to prove its burden [of]
proof” and requested that an attorney be provided to represent him. On December 9, 2011,
counsel from the Office of the State Appellate Defender was appointed to represent the
defendant on appeal.
¶ 12 ANALYSIS
¶ 13 We determine whether the defendant’s filing of a notice of appeal, instead of a motion
to withdraw his guilty plea pursuant to Illinois Supreme Court Rule 604(d) (eff. Feb. 10,
2006), is procedurally fatal and warrants dismissal of this case on appeal.
¶ 14 It is undisputed that on November 1, 2011, the defendant, while represented by counsel,
entered into a negotiated guilty plea on a charge of AUUW (count III). A negotiated plea is
“one in which the prosecution has bound itself to recommend a specific sentence, or a
specific range of sentence, or where the prosecution has made concessions relating to the
sentence to be imposed and not merely to the charge or charges then pending.” Ill. S. Ct. R.
605(c) (eff. Oct. 1, 2001). Illinois Supreme Court Rule 604(d) dictates that “[n]o appeal from
a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days
of the date on which [the] 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.
Feb. 10, 2006). The purpose of Rule 604(d) is “ ‘to ensure that before a criminal appeal can
be taken from a guilty plea, the trial judge who accepted the plea and imposed sentence be
given the opportunity to hear the allegations of improprieties that took place outside the
official proceedings and dehors the record, but nevertheless were unwittingly given sanction
in the courtroom.’ ” People v. Skyrd, 241 Ill. 2d 34, 39-40 (2011) (quoting People v. Wilk,
124 Ill. 2d 93, 104 (1988)). “The rule was designed to eliminate needless trips to the
appellate court and to give the circuit court an opportunity to consider the alleged errors and
to make a record for the appellate court to consider on review in cases where a defendant’s
claim is disallowed.” Skyrd, 241 Ill. 2d at 40. Accordingly, the procedural requirements
under Rule 604(d) are a “condition precedent” for an appeal from a defendant’s guilty plea.
(Internal quotation marks omitted.) Id. As a general rule, the failure to file a timely motion
under Rule 604(d) precludes the appellate court from considering the appeal on its merits.
Id. “Where a defendant has failed to file a motion to withdraw the guilty plea, the appellate
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court must dismiss the appeal.” Id.
¶ 15 In Wilk, our supreme court consolidated four cases and addressed whether the appellate
court properly dismissed the appeals from judgments entered on guilty pleas where the
defendants filed notices of appeal without first filing motions to withdraw their guilty pleas
as required under Rule 604(d). Wilk, 124 Ill. 2d at 99. Two of the defendants, Wilk and
Wright, filed their notices of appeal without first filing a Rule 604(d) motion to withdraw
their guilty pleas. Id. at 102. The remaining two defendants, Brown and Erickson, also failed
to file a Rule 604(d) motion to withdraw their guilty pleas, but did file a motion to reconsider
their sentences before proceeding to appeal their sentences. Id. Our supreme court held that
the appellate court properly dismissed the appeals filed by defendants Wilk and Wright
because they failed to first file a Rule 604(d) motion to withdraw their guilty pleas before
filing their notices of appeal from judgments entered on their guilty pleas. Id. at 107. This
holding, the Wilk court concluded, did not leave Wilk and Wright without a remedy because
they may raise constitutional claims in postconviction petitions. Id. However, the court
reversed the dismissal of appeals filed by defendants Brown and Erickson, finding that they
each had properly filed a motion to reconsider their sentences prior to filing their notices of
appeal, and that it was unnecessary for them to file a Rule 604(d) motion to withdraw their
guilty pleas because they were not appealing their guilty pleas. Id. at 109-10. The court then
affirmed dismissal of the appeals filed by Wilk and Wright, but reversed and remanded
Brown’s and Erickson’s cases to the appellate court for review of the sentences imposed. Id.
at 110.
¶ 16 Like defendants Wilk and Wright, the defendant in the instant case filed a notice of
appeal without first filing a motion to withdraw the guilty plea as required by Rule 304(d).
There is no indication in the record that the defendant was appealing only the sentence
imposed upon him, or that he had filed a motion to reconsider sentence prior to filing a notice
of appeal. Thus, we find that the defendant failed to comply with the requirements of Rule
604(d). See People v. Gougisha, 347 Ill. App. 3d 158, 161 (2004) (the Illinois Supreme Court
requires strict compliance with Rule 604(d)).
¶ 17 An exception exists to excuse a defendant’s noncompliance with Rule 604(d) when the
trial court fails to substantially admonish the defendant of the Rule 604(d) procedural
requirements. Under the “admonition exception” to the Rule 604(d) motion requirement, an
appellate court may consider an appeal despite the defendant’s noncompliance with Rule
604(d) in cases where the trial court fails to give sufficient admonishments under Rule
605(c). Gougisha, 347 Ill. App. 3d at 161. Rule 605(c) provides that, following the entry of
a negotiated guilty plea, the trial court shall admonish the defendant of the following:
“(1) that the defendant has the 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 the 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;
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(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).
¶ 18 A trial court is required to comply with the admonition requirements of Rule 605(c) and
must substantially advise the defendant of each subsection. Gougisha, 347 Ill. App. 3d at
162. However, the trial court is not required to use the exact language of the rule. Id.
¶ 19 On appeal, the defendant in this case does not challenge the propriety of the trial court’s
Rule 605(c) admonishments. Nor could he, where our review of the record shows that, during
the November 1, 2011 hearing, the trial court substantially advised the defendant on each of
the requirements under Rule 605(c). The court advised the defendant that he has a right to
appeal; that he must file a timely postplea motion to withdraw the guilty plea before
appealing; that if the postplea motion is granted, the plea will be vacated, a trial date will be
set, and any other charges may be reinstated; that if he is indigent, a transcript of the
proceedings and an attorney would be provided to the defendant free of charge; and that any
issue not raised in the postplea motion will be waived for appeal. Thus, the “admonition
exception” was not triggered to excuse the defendant from complying with the procedural
requirement of Rule 604(d), and the defendant should have filed a motion to withdraw his
guilty plea before appealing from the judgment.
¶ 20 In an attempt to avoid the consequences of failing to comply with Rule 604(d), the
defendant argues that the trial court’s Rule 605(c) oral admonishments were “packed full of
information,” “difficult to recall,” and that he followed the instructions as best he could. In
support of this contention, he contrasts the instant case with People v. Dominguez, 2012 IL
111336, in which a defendant was provided with both written and oral admonishments. We
find the defendant’s reliance on Dominguez to be misplaced. Dominguez involved a
defendant who did not speak English, received assistance from a Spanish language
interpreter, and was represented by counsel at the time he pled guilty to criminal sexual
assault of a child. Id. ¶¶ 3-6. The trial court provided both oral and written Rule 605(c)
admonishments to the defendant, and the defendant acknowledged his understanding of those
rights by signing the written admonishments form. Id. ¶ 6. Thereafter, the defendant filed a
pro se notice of appeal without filing a postplea motion. Id. ¶ 7. The appellate court
dismissed the appeal, finding that the defendant had failed to file proper postplea motions
to perfect his appeal. Id. ¶ 8. Our supreme court affirmed the appellate court’s dismissal of
the appeal, finding that the trial court adequately admonished the defendant under Rule
605(c) and that the written admonishments tendered to the defendant could be considered as
a supplement to, but not a substitute for, the trial court’s oral admonishments in determining
whether the defendant was substantially advised under Rule 605(c). Id. ¶ 27. We find nothing
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in Dominguez to suggest expanding Rule 605(c) to require the giving of written Rule 605(c)
admonishments to a defendant, as the defendant in this case seems to advocate. As discussed,
the defendant at bar was properly admonished by the trial court pursuant to Rule 605(c), and
could not be excused for failing to comply with the Rule 604(d) procedural requirements.
Thus, we reject the defendant’s arguments on this basis.
¶ 21 Likewise, the defendant argues that the pro se “notice of appeal” he filed was mislabeled
as a notice of appeal, when in fact the content of the document revealed his desire to
withdraw his guilty plea. We reject this contention. The content of the document at issue,
apart from its “notice of appeal” title, stated that the defendant “gives notice that an appeal
is taken from the order of judgment.” The document contained a heading for the “Appellate
Court of Illinois” and set forth the background of his case–including the trial court’s
disposition of his motion to quash and motion to reconsider the denial of the motion to
quash. It further alleged that defense attorney provided ineffective assistance of counsel, that
the State “failed to prove its burden [of] proof,” and that, “[t]herefore, with these issues ***
[defendant’s] motions should have been granted.” (Emphasis added.) We find no indication
in the pro se notice of appeal that the defendant desired to withdraw his guilty plea, but had
inadvertently mislabeled the document as a notice of appeal. The notice of appeal showed
that the defendant sought to directly appeal the order of judgment, and the denial of his
motion to quash and motion to reconsider, on the basis that his counsel was ineffective and
that the State somehow failed to carry its burden of proof during the pretrial proceedings.
Further, we find that although the notice of appeal referenced the absence of a speeding
citation and the lack of radar equipment in the police vehicle on the date of incident, this
could not be construed as a challenge to the factual basis for the AUUW charge, where the
trial court specifically found that the defendant’s seatbelt violation was sufficient to justify
stopping his vehicle and the police officers had probable cause to arrest and search the
defendant upon his failure to produce a valid driver’s license and proof of insurance. Thus,
we reject the defendant’s arguments on this basis.
¶ 22 Notwithstanding the defendant’s noncompliance with Rule 604(d), the defendant argues
that Rule 604(d) should be construed by this court to provide a defendant with an automatic
right to counsel during the 30-day period following a guilty plea, so that counsel could assist
the defendant in filing the requisite postplea motion. He contends that the 30-day period
following a guilty plea is a “critical stage” of the criminal process because a defendant could
lose his right to appellate review if he files a notice of appeal instead of a motion to withdraw
plea. Thus, he argues, Rule 604(d) should be interpreted to require the appointment of
counsel where a defendant files any pro se document in the trial court requesting the
appointment of counsel within the 30-day period. The defendant requests that this court
remand the case for appointment of counsel and further proceedings.
¶ 23 The State counters that the defendant’s attempts to circumvent the Rule 604(d)
requirements should be rejected and that his appeal should be dismissed for failing to file a
motion to withdraw the guilty plea within 30 days of pleading guilty. The State argues that
the 30-day period following the defendant’s guilty plea was not a critical stage of the
criminal proceedings during which he had a constitutional right to counsel. The State
contends that the request for counsel in the defendant’s notice of appeal was a request for
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appellate counsel, not trial counsel, and that jurisdiction was transferred to the appellate court
once the defendant filed a notice of appeal. The State further asserts that the trial court had
properly admonished the defendant under Rule 605(c) regarding the procedural requirements
of Rule 604(d), and that the defendant may raise any claims of ineffective assistance of
counsel in a postconviction petition.
¶ 24 Rule 604(d) provides that the appointment of counsel is conditioned upon the defendant’s
filing of a timely motion to withdraw the guilty plea. Ill. S. Ct. R. 604(d) (eff. Feb. 10, 2006)
(following a defendant’s filing of a timely postplea motion to withdraw the guilty plea or
motion to reconsider the sentence, the trial court “shall then determine whether the defendant
is represented by counsel, and if the defendant is indigent and desires counsel, the trial court
shall appoint counsel”). “The rules of statutory interpretation are applied with equal force to
supreme court rules.” Dominguez, 2012 IL 111336, ¶ 16. “The primary objective is to
ascertain and give effect to the rule’s drafters’ intent, the surest and most reliable indicator
of which is the language of the rule itself, given its plain and ordinary meaning.” Id. In
determining the plain meaning of the rule’s terms, we consider the rule in its entirety, and,
where the language of the rule is clear and unambiguous, we must apply it as written without
resort to extrinsic aids to statutory construction. Id. “We interpret the rule so that no part of
it is rendered meaningless or superfluous and we do not depart from the plain language of
the rule by reading into it exceptions, limitations, or conditions that conflict with the
expressed intent.” Id.
¶ 25 We find the plain language of Rule 604(d) to be clear and unambiguous. Reading the
terms of the rule in their entirety, we find that Rule 604(d) expressly states that the trial court
shall appoint counsel to represent an indigent defendant, if the defendant so chooses, after
he files a proper postplea motion. See Ill. S. Ct. R. 604(d) (eff. Feb. 10, 2006). The plain
language of the rule states that no appeal shall be taken from a judgment entered upon a
guilty plea unless the defendant files with the trial court within 30 days of sentencing either
a postplea motion to reconsider the sentence (if only the sentence is being challenged) or a
motion to withdraw the guilty plea and vacate the judgment (if the plea is being challenged).
Id. The rule further provides that counsel who is appointed to represent a defendant after the
defendant’s filing of a proper postplea motion shall file a certificate before the trial court
stating, inter alia, that counsel “has made any amendments to the motion necessary for
adequate presentation of any defects in those proceedings.” Id. To construe Rule 604(d) to
mean that a defendant has an automatic right to counsel during the 30-day period after
sentencing would render meaningless and superfluous the rule’s language specifically
requiring the defendant to first file a postplea motion to reconsider sentence or motion to
withdraw a guilty plea, as well as the rule’s language pertaining to an appointed counsel’s
amendments to the postplea motion that was initially filed by the defendant. We decline to
do so.
¶ 26 The defendant cites People v. Brooks, 233 Ill. 2d 146 (2009), in support of his contention
that counsel should have been appointed to represent him upon his filing of any pro se
documents in the trial court during the 30-day period following his guilty plea. We disagree
and instead find that Brooks supports dismissal of the defendant’s appeal. In Brooks, the
defendant pled guilty to criminal sexual assault and was properly admonished by the trial
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court of the procedural requirements under Rule 604(d). Id. at 148. Rather than file the
requisite postplea motion, the defendant sent a letter to the clerk of the circuit court stating
that he wanted to appeal his sentencing. Id. The clerk then filed the letter as a notice of
appeal. Id. Thereafter, the appellate court dismissed the appeal for failure to comply with
Rule 604(d) requirements. Id. The defendant then filed a pro se postconviction petition
seeking to have his sentence vacated. Id. The postconviction petition alleged that the trial
court violated his due process rights when it failed to appoint counsel to amend his letter to
the clerk as a motion to reconsider sentence, and that he had received ineffective assistance
of counsel because his trial attorney had told him to send the letter. Id. at 149. The circuit
court summarily dismissed the defendant’s postconviction petition but the appellate court
reversed and remanded the cause for further proceedings. Id. On the State’s petition for leave
to appeal, our supreme court affirmed the appellate court’s judgment, albeit on different
grounds, finding that the defendant could not argue that he was deprived of a right to counsel
when the defendant’s own postconviction petition made it clear that he had met with his
attorney after the sentencing hearing and had discussed the sentence that had been imposed.
Id. at 156. The Brooks court then found that the defendant’s postconviction petition had
stated the gist of a claim of ineffective assistance of counsel by alleging that his trial attorney
erroneously told him to send the letter to the clerk. Id. We find nothing in Brooks to suggest
that, in general, defendants have an absolute right to counsel during the 30-day period
following the entry of a judgment on a guilty plea and the imposition of a sentence, without
first filing the requisite postplea motion before the trial judge who imposed the sentence. To
find otherwise would be in direct contravention to the plain language of Rule 604(d). Rather,
in rejecting the defendant’s due process claim, the Brooks court reiterated that the defendant
must be held to the consequences of failing to comply with Rule 604(d). Id. at 155-56. Thus,
applying the same reasoning, we reject the defendant’s arguments on this basis.
¶ 27 Nor do we find applicable the defendant’s cited cases, People v. Griffin, 305 Ill. App. 3d
326 (1999), and People v. Barnes, 291 Ill. App. 3d 545 (1997), in support of his contention
that the trial court should have appointed counsel to represent him upon his filing of the pro
se notice of appeal. We find that neither the Griffin defendant nor the Barnes defendant filed
a notice of appeal, as did the defendant in the case at bar, prior to filing a postplea motion
under Rule 604(d). In Barnes, within 30 days following a guilty plea and the imposition of
sentence, the defendant submitted a handwritten letter addressed to the trial judge requesting
a modification of her sentence. Barnes, 291 Ill. App. 3d at 547. On appeal from the trial
court’s denial of the pro se postplea motion without affording the Barnes defendant a hearing
or the appointment of counsel, the reviewing court remanded the case for the appointment
of counsel and amendment of her postplea motion on the basis that the handwritten letter
triggered the trial court’s affirmative duty to inquire whether the defendant required counsel.
Id. at 548. In Griffin, the defendant, after being admonished by the trial court pursuant to
Rule 605(b), orally sought clarification of the Rule 604(d) motion requirements from the
court and asked whether he was entitled to the appointment of counsel. Griffin, 305 Ill. App.
3d at 329. The trial court responded that he was so entitled, but declined to advise him
further. Id. On appeal, the reviewing court remanded the case for the appointment of counsel
and the preparation of any postplea motions, finding that the trial court erred in failing to
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address the defendant’s questions concerning which motions were necessary to perfect an
appeal and to receive assistance of counsel, and that the trial court failed to make a
determination as to whether the defendant desired the assistance of counsel. Id. at 332. We
find Barnes and Griffin to be factually distinguishable from the instant case, where the
defendant made no verbal inquiry of the trial court during the sentencing proceedings nor did
he file a postplea motion pursuant to Rule 604(d) to trigger the trial court’s duty to inquire
whether the defendant required counsel. Further, we find that the request for counsel in the
defendant’s pro se notice of appeal was a request for the appointment of appellate counsel
to represent him on appeal, not a request for the appointment of trial counsel to help the
defendant vacate his guilty plea pursuant to Rule 604(d).
¶ 28 We further reject the defendant’s arguments that the 30-day period following a guilty plea
is a “critical stage” of the criminal process during which a defendant has an absolute right
to counsel. He contends that it is a critical stage of the proceedings because a defendant could
lose his right to appellate review if he files a notice of appeal instead of a motion to withdraw
plea. In support of this contention, the defendant cites Mempa v. Rhay, 389 U.S. 128 (1967),
and Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309 (2012). Mempa concerned a defendant
who was represented by an attorney when he pled guilty to “joyriding,” but was not
represented by counsel, nor asked by the trial court if he wished to be appointed counsel,
during a subsequent hearing at which the court revoked the defendant’s probation and
sentenced him to 10 years of imprisonment. Mempa, 389 U.S. at 130-31. The Mempa Court,
noting that certain legal rights could be lost if not exercised at the sentencing hearing, held
that the defendant had a right to counsel at this stage of the proceedings. Id. at 136. We find
Mempa to be inapposite and factually distinguishable from the instant case. Unlike Mempa,
the defendant in the case at bar was represented by counsel during both the negotiated guilty
plea phase and the sentencing stage of the proceedings. Likewise, the defendant’s reliance
on Martinez is misplaced, where, unlike the defendant in the instant case who pled guilty,
the Martinez defendant was tried by a jury under Arizona law and the case concerned
postconviction proceedings alleging ineffective assistance of counsel. Martinez, 566 U.S. at
___, 132 S. Ct. at 1320.
¶ 29 The defendant argues in the alternative that Illinois Supreme Court Rule 606(a) (eff. Sept.
1, 2006), which governs the perfection of appeals, should be construed by this court as
requiring the appointment of counsel to assist with perfecting an appeal whenever an indigent
defendant, who has pled guilty, files a pro se notice of appeal. He contends that because a
defendant has a constitutional right to counsel’s assistance in perfecting his appeal, Rule
606(a)’s language permitting a notice of appeal to be filed by a pro se defendant, without first
securing a knowing waiver of this right, would be rendered unconstitutional unless this court
construes Rule 606(a) as requiring the appointment of counsel to assist the defendant with
perfecting an appeal upon the defendant’s filing of a pro se notice of appeal–which he claims
is a “critical stage” of the criminal proceedings. Once counsel is appointed, he argues,
counsel could then file the necessary postplea motion and “the notice of appeal would be
struck and the court would hear the [postplea] motion, thereby removing any impediment to
the perfection of [his] appeal.” For support, the defendant cites Evitts v. Lucey, 469 U.S. 387
(1985), Roe v. Flores-Ortega, 528 U.S. 470 (2000), People v. Ross, 229 Ill. 2d 255 (2008),
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and Halbert v. Michigan, 545 U.S. 605 (2005).
¶ 30 The State counters that the filing of a notice of appeal was not a critical stage of the
proceedings because it was a ministerial act that only served to confer jurisdiction upon the
appellate court. The State argues that Rule 606(a) implicitly rejects the defendant’s argument
that he had a right to the appointment of counsel upon the filing of his pro se notice of
appeal, and that the defendant’s cited cases fail to advance his arguments.
¶ 31 Rule 606(a) provides the procedure for perfecting an appeal:
“[A]ppeals shall be perfected by filing a notice of appeal with the clerk of the trial court.
The notice may be signed by the appellant or his attorney. If the defendant so requests
in open court at the time he is advised of his right to appeal or subsequently in writing,
the clerk of the trial court shall prepare, sign, and file forthwith a notice of appeal for the
defendant. No step in the perfection of the appeal other than the filing of the notice of
appeal is jurisdictional.” Ill. S. Ct. R. 606(a) (eff. Sept. 1, 2006).
¶ 32 We find the plain language of Rule 606(a) to be clear and unambiguous, which allows
for the filing of a notice of appeal by either the appellant or his attorney. Based on this
language, Rule 606(a) permits the filing of the notice of appeal by a pro se defendant. We
decline to depart from the plain language of the rule by reading into it exceptions, limitations,
or conditions that conflict with the expressed intent. See Dominguez, 2012 IL 111336, ¶ 16.
¶ 33 We further find the defendant’s cited cases to be inapposite. The defendant argues that
Evitts, Flores-Ortega and Ross, which concerned claims of ineffective assistance of counsel,
support his contention that he had an automatic right to counsel in perfecting the appeal
because “where there is no constitutional right to counsel there can be no deprivation of
effective assistance.” See Coleman v. Thompson, 501 U.S. 722, 752 (1991). However, none
of these cases stand for the proposition that a defendant who pleads guilty and later defaults
on the procedural requirements of Rule 604(d), shall be entitled to the appointment of
counsel to assist him in perfecting an appeal upon the filing of a pro se notice of appeal
under Rule 606(a). Evitts involved a jury trial, rather than a plea of guilty, by which the
defendant was convicted of a drug offense under Kentucky law. Evitts, 469 U.S. at 387.
Defense counsel filed a notice of appeal, but failed to file a “statement of appeal” as required
by Kentucky appellate procedures. Id. The reviewing court then dismissed the direct appeal.
Id. at 390. Thereafter, the Evitts defendant filed a habeus corpus petition in the federal
district court, contending that he was denied the effective assistance of counsel because his
attorney had failed to file a statement of appeal which led to the dismissal of his appeal. Id.
In granting habeus corpus relief, the Evitts court held that the defendant was entitled to
effective assistance of counsel on first appeal as of right. Id. We find the defendant’s reliance
on Evitts to be misplaced. Unlike Evitts, the defendant in the case at bar, after entering into
a negotiated plea of guilty on a charge of AUUW, was subject to the procedural requirements
under Rule 604(d) and thus, did not have the same right to an automatic appeal as the Evitts
defendant who was convicted by jury trial. See People v. Wendt, 283 Ill. App. 3d 947, 956
(1996) (“a defendant who pleads guilty simply does not have the same right to an automatic
appeal as a defendant convicted after trial”). Further, Evitts differs from the instant case in
that it involved a collateral habeus corpus petition.
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¶ 34 Likewise, we find Flores-Ortega and Ross to be inapplicable, where they involved
collateral challenges to the defendant’s conviction. Flores-Ortega, 528 U.S. at 470
(petitioner, who had pled guilty to second-degree murder under California law, sought
habeus corpus relief alleging that defense counsel was ineffective for failing to file a notice
of appeal after promising petitioner to do so); Ross, 229 Ill. 2d at 258 (defendant, who was
convicted by trial and sentenced to eight years in prison, filed a pro se postconviction petition
alleging that defense counsel was ineffective for failing to file a timely notice of appeal).
Further, we find Halbert, another case the defendant references, to be distinguishable from
the case at bar where the defendant, after pleading nolo contendere to charges of criminal
sexual assault, filed a motion to withdraw his plea and, in accordance with Michigan law,
sought leave of court to file an appeal. Halbert, 545 U.S. at 614-16. Unlike Halbert, the
defendant in the case at bar, as discussed, failed to comply with this state’s procedural
requirements of first filing a motion to withdraw his guilty plea prior to appealing the
judgment entered upon his negotiated guilty plea. See Ill. S. Ct. R. 604(d) (eff. Feb. 10,
2006). Thus, we reject the defendant’s arguments that Rules 604(d) and Rule 606(a) should
be interpreted as anything other than what is expressly written in the plain language of the
rules. See Dominguez, 2012 IL 111336, ¶ 16 (a court must decline to depart from the plain
language of a supreme court rule by reading into it exceptions, limitations, or conditions that
conflict with the expressed intent).
¶ 35 Our supreme court has repeatedly observed that supreme court rules are not mere
suggestions. Skyrd, 241 Ill. 2d at 39. Rather, they have the force of law and that it must be
presumed that they will be obeyed and enforced as written. Id. “If the appellate court elects
to retain jurisdiction of the appeal and considers the merits of the defendant’s contentions,
the rule has been ignored. If the appellate court remands the case for a motion to withdraw,
to be filed and to be considered by the trial court, the case has taken a needless trip to the
appellate court, wasted that court’s time, extended the time within which the motion to
withdraw must be filed under Rule 604(d), and attaches no consequences to the ignoring of
the requirements of the rule of [our supreme] court.” Wilk, 124 Ill. 2d at 106-07. Therefore,
we must dismiss the defendant’s appeal for failing to comply with the mandates of Rule
604(d). While dismissal is a harsh result, we find that the harshness is lessened because the
defendant is not barred from raising constitutional claims in a postconviction petition
pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)). See
People v. Flowers, 208 Ill. 2d 291, 302 (2003) (“[t]he requirements of Rule 604(d) are
inapplicable to postconviction proceedings”); People v. Mathis, 357 Ill. App. 3d 45, 49
(2005). Accordingly, we need not address the defendant’s arguments on the merits of the
appeal that the AUUW statute was unconstitutional because it violated the right to bear arms.
¶ 36 For the foregoing reasons, we dismiss this appeal.
¶ 37 Appeal dismissed.
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