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People v. Creek

OPINION FILED MARCH 3, 1983.

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

v.

KENNETH CREEK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Moultrie County; the Hon. John P. Shonkwiler, Judge, presiding.

JUSTICE LEWIS DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 4, 1983.

The defendant appeals an order entered by the circuit court of Moultrie County denying his motion for leave to file an amended motion to withdraw his guilty plea to a charge of attempted homicide and to vacate the judgment entered thereon.

Defendant was charged by information with the offenses of attempt (murder) and aggravated battery in violation of sections 8-4(a) and 12-4(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 8-4(a), 12-4(b)). On February 24, 1982, he entered a written plea of guilty to the attempted murder charge. After ascertaining that defendant understood the charge against him and knowingly waived all of his legal rights, that the plea was voluntary, and that there was a factual basis for it, the court accepted defendant's plea and sentenced him to eight years in the Department of Corrections followed by three years' mandatory supervised release. Following the imposition of sentence, the court admonished the defendant as follows:

"`Mr. Creek, it's my duty to advise you that you have a right to appeal this judgment. Prior to doing so, you must file with the trial court within 30 days of this date a written motion asking to have the judgment vacated, and for leave to withdraw your plea of guilty, setting forth your reasons and grounds for the motion. After hearing, if the motion is allowed,' * * * `the plea of guilty, sentence and judgment will be vacated and a trial date set on the charge to which the plea was made.'"

Furthermore, the record indicates that defendant was "advised as to [Supreme Court] Rule 605(b)," which provides in pertinent part:

"Advice to Defendant

(b) On Judgment and Sentence Entered on a Plea of Guilty.

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:

(5) That if he is indigent * * * counsel will be appointed to assist him with the preparation of the motions." 87 Ill.2d R. 605(b)(5).

On March 23, 1982, the Moultrie County circuit court received from defendant a pro se document entitled "Notice of Appeal." This document consists of a printed form which defendant filled in and conforms to all of the requirements for a notice of an appeal to the appellate court. In the space following a question as to whether the appellant is indigent and desires the appointment of appellate counsel, the defendant typed, "Yes!" Upon receipt of this document, the circuit court appointed the office of the State Appellate Defender to represent defendant on appeal. However, that office was not immediately notified of its appointment, and the record contains no positive indication as to when (or if) the State Appellate Defender's office was so notified.

On April 22, 1982, defendant filed a "Motion to Withdraw Plea of Guilty and Vacate the Judgment" and an affidavit in support thereof. The affidavit contains allegations that defendant's guilty plea was "induced by a promise of a charge of Aggravated Battery or a lesser charge;" that the Moultrie County State's Attorney labored under a conflict of interest with respect to the prosecution of defendant; and that the State withheld from defendant favorable evidence which negated the elements of intent and knowledge necessary to support the attempted murder charge. At the same time, the defendant filed a motion to proceed in forma pauperis together with a supporting affidavit of assets and liabilities. On the following day, the circuit court appointed a local attorney to represent the defendant on the above motions.

On April 28, 1982, defendant's appointed counsel filed a motion for leave to file an amended motion to withdraw defendant's guilty plea and vacate the judgment entered thereon, and also moved that the appeal which defendant had previously taken from his guilty plea and sentence be dismissed. A hearing on this motion was held on the same date. Arthur Freesh, Moultrie County circuit clerk, testified that on March 23, 1982, his office filed defendant's notice of appeal, and that on the next day the court appointed the office of the State Appellate Defender to represent defendant, but that that office was not notified of its appointment.

At the conclusion of the hearing, the court held that defendant's pro se notice of appeal did not constitute a motion to withdraw his guilty plea within the meaning of Supreme Court Rule 604(d) (87 Ill.2d R. 604(d)) and that the defendant thus did not file a valid motion to withdraw his guilty plea within 30 days of the date on which he was sentenced as required by the above rule. The court therefore denied defendant's motion for leave to file an ...


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