APPEAL from the Circuit Court of Kane County; the Hon. JOHN S.
PETERSEN, Judge, presiding.
MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
The defendant was sentenced to the penitentiary for a term of 2 to 7 years for the offense of burglary, 2 to 5 years for the offense of theft of property exceeding $150 in value and 2 to 5 years for the offense of attempted escape, all terms to run concurrently. It is from the judgment of guilt and the order of sentencing in each instance that defendant appeals.
During the pendency of the appeal, defendant's appellate counsel, the Illinois Defender Project, filed a motion (supported by a brief) to withdraw as his attorney. The motion claims the appeal to be frivolous. The brief in support of the motion relates consideration of the following issues: (1) the three indictments were legally sufficient, (2) the procedures leading to the taking of the guilty plea were in accordance with Illinois law and no error occurred, (3) the trial judge fully admonished the defendant concerning a) the nature of the charges, b) the possible length of the sentence and the defendant knowingly and understandingly waived his rights, (4) the sentence was unambiguous and, (5) the sentences imposed were not excessive.
The brief further states: "that on the attempted escape charge, an admonishment as to the possible length of sentence does not appear in the report of proceedings; that the judgment order, however, does contain the statement that such admonition was made and, therefore offers a presumption that a proper admonishment did occur (citing, People v. Farris, 392 Ill. 267, 268-269 (1946), and People v. Fuhs, 390 Ill. 67, 69 (1945); that to upset the guilty plea on attempted escape would avail the defendant nothing since that sentence is being served concurrently with the sentences for burglary and theft."
The motion was filed on June 28, 1971, and a copy served upon the State and the defendant. On June 29, 1971, this Court ordered the motion continued until July 30, 1971, to allow the defendant to file any additional matters meritorious on his behalf. A copy of the order was forwarded to the defendant in the customary practice; however, the defendant has not, up to the date the cause was taken under advisement (November 23, 1971), filed any response.
On May 8, 1967, the U.S. Supreme Court in Anders v. California, 386 U.S. 738, 18 L.Ed. 493, 87 S.Ct. 1396, pronounced the procedure to be followed in those instances where counsel for a defendant in a criminal appeal believes that a review of the case would be frivolous and without merit. Counsel herein has followed the procedure established. When this is done, "the court not counsel then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if the state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." Anders, p. 744.
We have reviewed the records in each of the cases before us, as dictated by Anders, and question whether, on all three charges, proper admonition was afforded the defendant herein before the acceptance of the plea of guilty.
• 1 To avoid placing this Court in the position of an advocate and to allow the State the opportunity to respond to what might be a meritorious issue or issues, the Court will allow the motion of counsel to withdraw and, by supplemental order, appoint new counsel to proceed with the defendant's appeal.
Motion to withdraw allowed;
SEIDENFELD and GUILD, JJ., concur.
On December 16, 1971, after filing the previously unpublished opinion above, this Court appointed Roy Lasswell, public defender of Kane County; the records herein were delivered to him on February 28, 1972. An order of June 20, 1972, directed the public defender to file briefs, abstracts or excerpts of record before July 17, 1972. After failure to comply, present counsel was appointed on July 20, 1972, with directions to file briefs or other pleadings on or before August 25, 1972.
On August 24, 1972, present counsel filed a motion (supported by brief) to withdraw as attorney, stating the appeal to be frivolous, and arguing that the defendant was properly ...