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People v. Frey

OPINION FILED JUNE 1, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

MICHAEL FREY, APPELLANT. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

DAVID K. MELVIN, APPELLANT. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

LATHAN CURTIS RUFFIN, APPELLANT.



No. 48456. — Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Williamson County, the Hon. William A. Lewis, Judge, presiding.

No. 48457. — Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Williamson County, the Hon. William A. Lewis, Judge, presiding.

No. 48516. — Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County, the Hon. W.L. Beatty, Judge, presiding.

MR. JUSTICE DOOLEY DELIVERED THE OPINION OF THE COURT:

Michael J. Rosborough, Deputy Defender, and A. Michael Kopec, Assistant Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellant.

William J. Scott, Attorney General, of Springfield (James B. Zagel, Jayne A. Carr, and Victor M. Pilolla, Assistant Attorneys General, of Chicago, of counsel), for the People.

Stephen P. Hurley and Michael J. Rosborough, Deputy Defenders, and Ann H. Blandford and A. Michael Kopec, Assistant Defenders, of the Office of the State Appellate Defender, of Mt. Vernon, for appellant.

William J. Scott, Attorney General, of Springfield (James B. Zagel, Jayne A. Carr, and Victor M. Pilolla, Assistant Attorneys General, of Chicago, of counsel), for the People.

Defendants, Michael Frey, David K. Melvin, and Lathan C. Ruffin, were convicted on pleas of guilty in separate and unrelated proceedings. Each defendant filed a motion under Rule 604(d) (58 Ill.2d R. 604(d)) to withdraw his plea and vacate the judgment. In each case the trial court denied the motion, defendant appealed to the Appellate Court for the Fifth District, and that court dismissed the appeal. We granted defendants' petitions for leave to appeal, and consolidated the three appeals for argument and decision.

The critical issue in each case is the meaning to be given the clear language of Rule 604(d) 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 sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment" (58 Ill.2d R. 604(d)).

Since the procedural sequence differs in each case, we describe them individually. In No. 48456 defendant, Michael Frey, entered a negotiated plea of guilty on October 14, 1975. He was adjudged guilty and convicted on October 15. The report of proceedings shows that, prior to accepting his plea, the trial judge repeatedly advised him of his right to have counsel appointed, and that he refused that offer. The report of proceedings also shows that, after sentencing, the trial court advised Frey of his right to appeal, but that prior to taking an appeal Frey would have to file a motion to withdraw his plea within a period of 30 days. Frey was also told that, if he were indigent, he would be provided with an attorney to assist him in the preparation of that motion, should he so request. No such request was made at that time.

On November 14, Frey filed, pro se, a notice of appeal. The notice contained a request that counsel be appointed for the appeal. On the same date the court entered an order appointing the State appellate defender to represent Frey, and directed the clerk of the court to prepare and file the record on appeal. The notice of his appointment was mailed to the appellate defender the same day.

On November 18, Frey, pro se, filed a verified motion to withdraw his plea of guilty. The motion represented that he had not been properly advised of the consequences of his guilty plea; that the plea was coerced by the State's Attorney and by Kenneth T. Hubler, an attorney with the public defender's office whom Frey referred to as his court-appointed attorney; and that Hubler had failed to give Frey competent representation, in that he had, among other things, refused to make a motion for substitution of judges requested by Frey. We note that the report of proceedings shows no participation by attorney Hubler.

The motion came on for hearing on December 12, and on that date the trial judge denied it on two grounds: that Frey's plea had not been coerced, and that the motion had not been filed within 30 days.

A timely notice of appeal of that ruling was filed on behalf of Frey by the appellate defender on December 30. On March 5, 1976, the appellate court, on its own motion, dismissed the appeal, finding that Frey's motion to withdraw ...


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