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People v. Dean

OPINION FILED JUNE 5, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ROBERT DEAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Jasper County; the Hon. WILLIAM GINOS, Judge, presiding.

MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

Defendant, Robert Dean (a/k/a Robert Dean Melson), was charged in the circuit court of Jasper County with the offenses of burglary, possession of burglary tools and misdemeanor-theft. Defendant, while represented by Public Defender John Prusik, pleaded guilty as charged. The guilty pleas were accepted by the court and defendant was sentenced to a term of three to nine years imprisonment on the burglary conviction. However, no sentence was imposed on either of the two other convictions. Thereafter, on behalf of defendant, Prusik filed a motion, pursuant to Supreme Court Rule 604(d) (Ill. Rev. Stat. 1975, ch. 110A, par. 604(d)), to withdraw the guilty pleas and vacate the judgment based upon the alleged severity of the sentence imposed. Prusik, however, failed to file an attorney's certificate of compliance with Rule 604(d) prior to the hearing on the motion. Following the hearing, at which defendant was not present, the motion was denied. From the denial, defendant brings this appeal.

In his brief on appeal defendant presents the sole issue of whether the cause should be remanded for a new proceeding under Rule 604(d) because of Prusik's failure to file the certificate of compliance and because of the lack of any other record indication of his attorney's compliance with that Rule. Additionally, defendant filed in this court a motion for leave to supplement the record with two affidavits.

The first of these is by defendant wherein he states that:

"After I was sentenced, I was able to talk with Mr. Prusik for about two (2) minutes. I told him that I wanted to withdraw my guilty plea or, in the alternative, file an appeal. He said he would look into the matter and get back to me. He did not talk to me after that, but only sent me a copy of the motion he filed. * * *"

Further, defendant states that he had wished to raise three issues in his motion to withdraw his guilty pleas; that the sentence imposed was excessive; that the representation provided by Prusik during the plea proceedings was ineffective; and that he had been subject to coercion in pleading guilty.

In the second affidavit, by Assistant Appellate Defender John Reid, defendant's appointed appellate counsel, Reid states that Prusik had informed him that no issues with regard to the 604(d) motion had been discussed between Prusik and defendant during the conversation following the instant sentencing hearing.

In response to defendant's motion to supplement the record with the foregoing affidavits, the State has filed objections thereto and the motion has been taken with the case.

In turn, the State has also moved to supplement the record. This motion sought to file a belated certificate by Prusik. In the certificate, Prusik first relates a chronology of his activities in the lower court on behalf of defendant. He then states:

"9. After [the] sentencing [hearing], I did speak briefly with Mr. Dean, during which time he advised me of his displeasure with the sentence and his desire to appeal. However, at that time, and thereafter, I never specifically spoke to Mr. Dean concerning the issues that should be raised on the motion to vacate judgment and withdraw the plea of guilty, and thereafter on appeal.

10. It was my professional opinion that I had an active and thorough knowledge of the case, since I had been dealing with it for several months, and that I was therefore capable of raising all the legally cognizable issues possible * * *.

11. I drafted the motion * * * and raised all the legally cognizable issues I could think of. * * *

12. I sent Mr. Dean a copy of this motion * * *."

Although defendant received timely notice of the State's motion to supplement the record, no objection was raised thereto and the motion was consequently granted. The State then filed its brief on appeal contending that ...


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