APPEAL from the Circuit Court of Knox County; the Hon. GALE A.
MATHERS, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant Richard M. Adams appeals to this court from an order entered by the Circuit Court of Knox County, denying defendant's motion to withdraw a guilty plea and vacate the judgment of guilty and, likewise, denying defendant's various addenda to said motion and defendant's motion for a rehearing.
Defendant Adams was charged by information with having committed the offense of theft over $150 in violation of section 16-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 16-1(a)). Defendant waived his right to counsel at that time, entered a plea of guilty, and was sentenced by the circuit judge to 2 to 6 years in the penitentiary.
Within 30 days of sentencing, defendant filed a pro se "Motion for Appeal" and a letter with the trial court.
The letter stated the grounds for the motion and the motion asked the court to appoint counsel for defendant. The court then appointed counsel for defendant, to assist in the filing of a motion pursuant to Supreme Court Rule 604 (stated to be "605"). No such motion was ever filed, and, approximately one year later, on the motion of the State's Attorney, the trial court entered an order denying defendant's motion to withdraw his guilty plea and vacate the judgment of guilty, and denying defendant's various addenda to the motion, as well as his motion for rehearing.
The basic question before us is whether the appointed counsel for defendant rendered ineffective assistance to defendant in this cause and whether such ineffective assistance was prejudicial or harmless error.
Following the charge of theft, assertedly resulting from the theft of an automobile, defendant was arraigned before the Circuit Court of Knox County where, as we have noted, he waived his right to counsel and entered a plea of guilty. At the sentencing hearing on October 21, 1976, defendant again waived counsel. The State then recommended that defendant be sentenced to a term of from 2 to 6 years in the penitentiary, and the court sentenced defendant accordingly. After the sentencing, defendant was given the admonition pursuant to Supreme Court Rule 604 with respect to defendants who plead guilty.
On October 22, 1976, a note from defendant to the circuit judge stating that defendant was making a "Motion to Appeal," was filed in the circuit court. On November 18, 1976, defendant filed a letter and a pro se "Motion for Appeal" in the circuit court. The motion requested that counsel be appointed for defendant. In the letter, the defendant alleged that the State's Attorney had told him that he could not have an attorney if he entered a guilty plea and that the State's Attorney had also told defendant that he had a "good chance for probation. He conned me into believing that." On November 18, 1976, the circuit court appointed an attorney to assist defendant in filing his motion pursuant to Rule 604 (incorrectly referred to as "605"). In addition, the trial court entered an order extending the time for filing that motion to December 2, 1976.
Four days after his appointment, the court-appointed counsel sent a letter to defendant at the Joliet Correctional Center. The letter asked defendant to immediately inform the appointed attorney of the grounds for his motion to vacate. Two days later, on November 24, 1976, defendant received the letter in prison and responded by a letter dated November 24, 1976, according to defendant. The envelope in which defendant sent his letter is postmarked November 30, 1976. Defendant's brief suggests that the delay was due to the inefficiency of outgoing mail at the Joliet Correctional Center. The court-appointed counsel received a letter from defendant on December 6, 1976, 4 days after the December 2 deadline set by the court for filing a motion under Rule 604. The letter repeated the allegations which defendant had made to the trial judge in the previous letter, which was filed on November 18. The record indicates that the court-appointed counsel took no action with respect to defendant's letter.
On May 2, 1977, defendant wrote to the circuit clerk of Knox County informing him that the defendant had written his court-appointed attorney several times and had received no response. Defendant asked whether the court-appointed attorney was still representing him. The clerk sent a copy to the court-appointed attorney, and reminded that attorney that he had not yet filed the motion to vacate. On June 14, the defendant wrote the circuit clerk requesting that his pending motion "to withdraw my guilty plea" be called up for hearing. On July 8 defendant filed a pro se "addendum to motion to withdraw plea of guilty and to vacate judgment entered on the plea." On August 24, defendant filed a pro se motion for appointment of new counsel, as well as a motion to bring his pending motions before the Court. On August 25, the circuit judge wrote defendant that he, the judge, had asked the court-appointed attorney to contact the defendant. After defendant received no contact from the court-appointed attorney, defendant filed a pro se petition for post-conviction relief on the ground that the court-appointed counsel's representation of defendant on the motion to vacate was ineffective. (This motion is apparently being held in abeyance pending the outcome of the instant appeal.)
On November 2, 1977, the State filed a motion to dismiss defendant's motion to withdraw his plea of guilty and all addenda thereto, as we have noted. The State's motion asserted that defendant's motion was not timely and that it asserted no ground in fact or law for relief. On November 23, 1977, defendant filed a second "addendum to motion to withdraw plea of guilty" alleging that his court-appointed attorney was incompetent and requesting appointment of new counsel.
At the hearing on the State's motion to dismiss, held on November 30, defendant was not personally present (he was in prison) but was represented by the court-appointed attorney. That court-appointed attorney represented to the court that defendant's letter dated November 24, 1976, failed to disclose any facts which could support a motion to withdraw the plea of guilty and that, in any event, defendant's response to the court-appointed attorney's letter of November 22, 1976, was not made within the time ordered by the Court and that this constituted a waiver by defendant of a right to make the motion to withdraw the plea of guilty.
On December 5, 1977, the Circuit Judge entered an order denying defendant's "motion to withdraw his guilty plea and vacate judgment of guilty" and the "various addenda to said motion and defendant's motion for rehearing on said motion and addenda." The reasons stated for the order were that the defendant's motions "were not made within the time ordered by this Court and no extensions of time were sought from this Court" and "that said motions * * * assert no ground in fact or law for relief." (On September 8, 1978, the court-appointed attorney filed a "Certificate of Compliance Pursuant to Supreme Court Rule 604(d)" in the appellate court. In the certificate, the court-appointed attorney, under oath, stated that he consulted with defendant to ascertain defendant's contentions of deprivation of constitutional rights; that he examined the trial court file and the report of proceedings of the plea of guilty; that he made no amendments to defendant's pro se motion because he felt there were no defects in the guilty plea proceedings.)
Under Supreme Court Rule 604(d) (Ill. Rev. Stat. 1977, ch. 110A, par. 604(d), "[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. 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." It is clear from the record that defendant never filed a motion to withdraw the guilty plea and vacate judgment and that the only motion defendant filed within the 30-day period was a "Motion for Appeal," accompanied by a letter stating the grounds for the motion. The grounds stated did not appear in the record and were not, as is required by Rule 604, supported by affidavit.
The trial court, however, did not deny defendant's motion for this reason. Instead, the circuit judge issued an order stating that he was denying defendant's motion because it was not timely filed and because it asserted no ground in fact or law for relief. The judge's order thereby assumed that defendant did in fact file a motion to withdraw his guilty plea and vacate judgment. The only motion filed by defendant which would be so construed was his "Motion for Appeal" and that motion was timely filed within the 30-day period. Apparently the trial court construed ...