APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The basic issue in this case is whether a defendant who pled guilty is barred from filing a post-conviction petition raising alleged trial court errors of constitutional proportions where he failed to file a motion in the trial court seeking to withdraw his guilty plea within 30 days after the sentence was imposed as required by Supreme Court Rule 604(d). We hold that he is not and that, accordingly, he should have been allowed to file an amended post-conviction petition. Since he was not allowed to file it, we do not rule on the sufficiency of the petition but remand for further proceedings.
The defendant, Orville Parker, was charged with four counts of burglary. On December 17, 1975, he pled guilty to all four counts. In response to the court's question, "You are entering this plea of your own free volition? There have been no threats, no coercion, no promises made to you to induce you to enter this plea of guilty?" he answered "Yes, Sir." He also responded that he understood that he was waiving such rights as his right to trial by jury. He was further informed that he could be sentenced to the Illinois Department of Corrections for a period of not less than one nor more than 20 years. Only then did the court accept his plea. He was sentenced to the Illinois Department of Corrections for a period of not less than three years nor more than nine years on each of the indictments, the sentences to run concurrently. The court then instructed the defendant that:
"The Court would also advise the defendant that in the event he is desirous of withdrawing his plea of guilty and is desirous of vacating the judgment of this court on this date, he must file with this court within 30 days from the date hereof his petition setting forth the facts and the grounds for vacating the judgment of sentence.
In the event that the judgment and the sentence is vacated by this court, the State may then proceed to prosecute the defendant on each of the said causes set forth in the respective indictments and each count contained therein.
In the event that the defendant is indigent, without funds with which to engage counsel, free counsel will be appointed to represent the defendant.
The Court would also see that a free transcript of the proceedings would be provided to aid and assist the defendant in filing such a petition.
I further advise the defendant if he fails to file his petition within 30 days from the date hereof, it will be presumed that he waives any and all rights that he may have with respect to error that may be contained in any of the proceedings contained herein."
What happened after December 17 is not entirely clear. According to the defendant's statements in his petition for post-conviction relief, he filed a notice of appeal with the trial court on December 17, 1975, which direct appeal was never acknowledged by the court. He also filed another pro se notice of appeal with the trial court. What is clear is that the Appellate Defender's office, apparently in March of 1976, at the request of the appellate court, moved to dismiss the appeal. The motion stated that on January 6, 1976, the defendant filed a notice of appeal but that no motion to vacate the plea of guilty was presented by the defendant in accordance with Supreme Court Rule 604(d). While there is nothing in the record to that effect, the parties agree that the motion was granted. In a letter written to the defendant on March 5, 1976, one of the attorneys from the State Appellate Defender's office informed him that his original notice of appeal should have been treated as a motion to vacate under Supreme Court Rule 604(d) but that the clerk of the court was still unfamiliar with the new rule and as a result, the notice of appeal was processed in the old way which invalidated it. (Neither notice of appeal is contained in the record so this court does not know what relief the defendant had in fact prayed for in the "notice.") The attorney further advised the defendant to write the chief judge and ask him to appoint a trial attorney to enter a motion to vacate the guilty plea nunc pro tunc as of January 6, 1976.
The defendant on March 15, 1976, filed the present petition for "post-conviction relief, et al" which he attached the March 5th letter and asked that the judgment be vacated pursuant to Supreme Court Rule 604(d). In the petition he alleged that his guilty plea was involuntary and secured in violation of due process in that it was based upon an unfulfilled promise of leniency that he would only receive a sentence of two to six years. He also claimed that he had been arbitrarily denied a substitution of judges in October 1975; had been denied counsel other than from the public defender's office and that he had been denied a fair suppression hearing on December 15, 1975. He further claimed that his constitutional right to a direct appeal had been denied him. An assistant state's attorney in an affidavit denied the defendant's contentions he had been promised from two to six years, stating that he had been promised from three to nine years which is what he received. The State also moved to dismiss the petition as insufficient to require an evidentiary hearing.
A hearing was held on June 24, 1976. Throughout the hearing the public defender indicated his belief that they were only present to determine whether the defendant could file an amended petition and that he (the public defender) was not prepared to argue the substantive issues. The court ruled that by not filing a motion pursuant to Rule 604(d) within the required 30 days the defendant waived anything that might have been raised. The court then added that the defendant failed to set forth sufficient facts in the petition to authorize relief.
Supreme Court Rule 604(d) (Ill. Rev. Stat. 1975, ch. 110A, par. 604(d)), provides:
"No 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, filed in the trial court a motion to withdraw his plea of guilty and vacate the judgment. The motion shall be in writing and shall state the grounds therefor. When the motion is based on facts that do not appear of record it shall be supported by affidavit. The motion shall be presented promptly to the trial judge by whom the defendant was sentenced, and if that judge is then not sitting in the court in which the judgment was entered, then to the chief judge of the circuit, or to such other judge as the chief judge shall designate. The trial judge 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. If the defendant is indigent, the trial court shall order a copy of the transcript as provided in Rule 402(e) be furnished the defendant without cost. The defendant's attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in 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. The motion shall be heard promptly, and if allowed, the trial court shall vacate the judgment and permit the ...