APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Following a plea of guilty in the circuit court of Cook County, defendant, William Miller, was convicted of murder, attempted murder, attempted armed robbery, and aggravated battery (Ill. Rev. Stat. 1979, ch. 38, pars. 9-1, 8-4, 18-2, and 12-4), and found not guilty of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2). Defendant was sentenced to 20 years in the Illinois Department of Corrections for the offense of murder, and to concurrent terms of 6 years for the offenses of attempted murder and attempted armed robbery and 4 years for the offense of aggravated battery.
Defendant asks this court to reverse his convictions, arguing that (1) defendant's failure to file a written motion to withdraw his guilty plea (73 Ill.2d R. 604(d)) is not a bar to this appeal because the trial judge failed to advise defendant how to preserve his right to appeal as required by Supreme Court Rule 605(b) (73 Ill.2d R. 605(b)); (2) the trial judge substantially failed to comply with Supreme Court Rule 402 (73 Ill.2d R. 402) in that the trial judge failed to instruct defendant as to (a) the mandatory supervised release periods that attached to defendant's convictions, (b) defendant's right to confront and cross-examine the witnesses against him, (c) defendant's privilege against self-incrimination, (d) the sentences applicable to the various convictions, and (e) defendant's right to persist in a plea of not guilty, and failed to inquire whether any threats or promises other than the plea agreement were used to obtain the plea; (3) the trial judge violated defendant's fourteenth amendment due process rights (U.S. Const., amend. XIV) by these same failures; (4) the trial judge abused his discretion by failing to conduct proceedings relevant to defendant's oral motion to withdraw his guilty plea.
On August 8, 1980, counsel for defendant sought leave in the circuit court of Cook County to withdraw defendant's previously entered plea of not guilty to the charges and enter a plea of guilty (Ill. Rev. Stat. 1979, ch. 38, par. 115-2). After defendant told the trial judge that he did wish to plead guilty, the trial judge admonished defendant that he was charged with murder, armed violence, attempted murder, attempted armed robbery, and aggravated battery. The trial judge informed defendant that the possible sentence for murder was 20 to 40 years; for armed violence and for attempted murder, 6 to 30 years; for attempted armed robbery, 3 to 7 years; and for aggravated battery, 2 to 5 years. The trial judge then stated, "As to each of these offenses, without murder being included, the Court can also impose what is called a mandatory supervised release period on you of up to a period of three years as to each of these — on each of these charges. Do you understand what you are charged with, and what the possible sentence is as to each of these charges?" Defendant answered yes.
The trial judge then told defendant that by pleading guilty defendant would give up his constitutional right to a jury trial or, if he wished, a bench trial. Defendant stated that it was his wish that he not go to trial. The trial judge thereupon informed defendant that as a result of the plea bargain conference defendant would receive a sentence of 20 years for the offense of murder, with the shorter sentences for each of the other offenses described above to be served concurrently. After defendant stated that he understood the sentences he would receive on his plea of guilty, the trial judge said, "Let the record show that the defendant has been duly warned of the consequences of his plea, and after being so warned, he persists."
The State's Attorney was then asked to set forth the factual basis for the guilty plea. He summarized as follows the anticipated testimony from several witnesses, to which defense counsel stipulated.
At 1:30 a.m. on October 22, 1979, five men were shot in an alley at 25th and California by a man armed with a pistol. One of the victims died of gunshot wounds to the chest. A statement made on October 25, 1979, by defendant to a police investigator was also admitted into evidence by stipulation. Defendant had stated that about 1:30 a.m. on October 22, 1979, he went to 25th and California with a co-defendant, Paco Rodriguez, after Rodriguez took a pistol from his house and said, "Let's rob somebody." Defendant said that he (defendant) trained the pistol on the five victims in an alley while Rodriguez told them to give him their money. When the victims refused to do so, defendant stated, he gave the gun to Rodriguez, who shot all five men.
One of the victims died. The other four victims sustained gunshot wounds. The bullet removed from the body of the deceased victim was analyzed at the police crime laboratory, which determined that it had come from the gun used by defendant and Rodriguez.
The trial judge ruled that these stipulated facts provided a sufficient basis for a plea of guilty, and accordingly accepted defendant's plea. The trial judge found defendant guilty of murder, attempted murder, attempted armed robbery, and aggravated battery and entered judgment on each of the findings.
At the sentencing hearing on April 22, 1980, defendant, who was represented by counsel, told the court, "I would like to withdraw my plea, because I didn't quite understand the proceedings." The trial judge denied this request and sentenced defendant to 20 years for the murder and shorter concurrent sentences for the other convictions as outlined above. The trial judge advised defendant that he had 30 days within which to file a written and sworn petition setting forth sufficient legal reasons why he should be permitted to withdraw his plea of guilty. Defendant filed no such petition; he filed a notice of appeal on May 13, 1980.
The first issue that must be addressed in this appeal is whether, in view of the trial judge's failure to advise defendant of his right to appeal as required by Supreme Court Rule 605(b), defendant has waived his right to appeal by failing to present to the trial court a motion under Supreme Court Rule 604(d) to withdraw his guilty plea and vacate the judgment. Supreme Court Rule 604(d) provides 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." (73 Ill.2d R. 604(d).) Accordingly, it has been held that a written motion to withdraw a guilty plea is a prerequisite to an appeal of a judgment of conviction entered on the plea. (People v. Stacey (1977), 68 Ill.2d 261, 369 N.E.2d 1254; People v. Frey (1977), 67 Ill.2d 77, 364 N.E.2d 46; People v. Newbolds (1981), 98 Ill. App.3d 1018, 425 N.E.2d 9.) A notice of appeal filed within the 30-day period does not satisfy the requirement of Rule 604(d). (People v. Frey.) However, an exception to the requirement exists where the trial court has failed to admonish the defendant in accordance with Supreme Court Rule 605(b). People v. Newbolds; People v. Gramlich (1979), 69 Ill. App.3d 23, 386 N.E.2d 1171; People v. Martin (1978), 58 Ill. App.3d 915, 374 N.E.2d 1156.
Rule 605(b) provides, in pertinent part, as follows:
"In all cases in which a judgment is entered upon a plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows:
(1) That he has a right to appeal;
(2) That prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the judgment vacated and for leave to withdraw his plea of guilty, setting forth his grounds for the motion;
(6) That in any appeal taken from the judgment on the plea of guilty any issue or claim of error not raised in the motion to vacate the judgment and to withdraw his plea of guilty shall be ...