Appeal from the Circuit Court of Ogle County; the Hon. F.
Lawrence Lenz, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant, John Willis, appeals from an order of the circuit court of Ogle County denying his motion to withdraw his plea of guilty to the offense of burglary. (Ill. Rev. Stat. 1983, ch. 38, par. 19-1(a).) Defendant contends he is entitled to a new hearing on his motion to withdraw his guilty plea since he was represented at the original hearing by the same assistant public defender against whom he made specific allegations of inadequate representation. He requests that this court vacate the circuit court's order denying his motion and remand the cause for the appointment of counsel other than the public defender's office and a new hearing.
The defendant was charged by information with one count of burglary. At arraignment, he initially pleaded not guilty, but he later entered into a plea agreement with the State. A plea hearing was held, and the defendant was present in court, represented by his appointed public defender, Robert Chadwick. The State explained that under the terms of the agreement, the defendant would receive a sentence of five years' imprisonment in return for his plea, a statement of his involvement in the offense, and his cooperation in two cases in other counties. The State also promised that he would not be charged with offenses arising out of those other counties, and that agreement as to that from the other counties was in the process of being secured. In response to the trial judge's inquiry, the defendant stated he understood that the State's Attorney had no authority over cases in those other counties. The trial judge then ascertained from the defendant that all of the terms of the agreement had been stated, and that he understood his plea of guilty meant he gave up his right to trial by a judge or jury, his right to silence, to confront witnesses against him, and the presumption of innocence. Before the plea was accepted, the defendant told the court that, due to problems with his nerves, he was taking phenobarbitol and sleeping pills, and that he had taken a phenobarbitol that morning. He said the drugs did not affect his understanding of the proceedings.
The trial judge told the defendant that as the judge he was not bound by the agreement, and that a sentence of not less than three nor more than seven years could be imposed and, under certain circumstances, could be not less than seven years nor more than 14 years. In any case, the judge explained there would be a mandatory supervised release term of two years, and that a fine of not less than $1 nor more than $10,000 could be imposed.
When the defendant indicated he understood, the trial judge accepted the plea, and the State presented the factual basis for the offense. The defendant testified that he and five others drove to Peters' Garage in Rochelle, Ogle County, on January 17, 1984. The defendant broke into the garage in order to take "money and stuff." The State then said it would also prove that James Peters was the owner of the garage and that he had not given permission to anyone except police officers to enter his garage.
The trial judge then asked for evidence of the defendant's criminal history. The State indicated that although it had some difficulty obtaining the information, a "fairly accurate criminal history of the defendant" showed a 1981 conviction for felony theft and violation of bail bond, a 1982 conviction for possession of a stolen vehicle, and another felony theft conviction in eight counts for which he received a term in the Department of Corrections. The defendant stated he "never stole no vehicle," and that he was in Cook County jail in March of 1982 for bond jumping. He could not recall what the underlying charge was, but he and his brothers had some cases pending for which they received probation, but he got a 4 1/2-year term in the Department of Corrections. In mitigation, defense counsel stated the defendant had been very cooperative with the authorities, and had cooperated in a number of matters being resolved.
The trial judge then found the defendant guilty of burglary, and sentenced him to five years in the Department of Corrections. Pursuant to Supreme Court Rule 605(b) (87 Ill.2d R. 605(b)), the trial court admonished the defendant that prior to taking any appeal from his order, he must file within 30 days a written motion requesting leave to withdraw the guilty plea and that the trial court vacate the order entered; that he had the right to have an attorney help prepare the motion and that, if indigent, and he so requested, the court would appoint an attorney to help him prepare the motion; that he had a right to a copy of the report of proceedings, without cost if he could not afford to pay for it; that if the court allowed the plea to be withdrawn and the order vacated, the cause would proceed to trial; and that any charges agreed to be dismissed could be reinstated and set for trial. The trial court neglected to admonish the defendant that his motion to withdraw should include the grounds for the motion (87 Ill.2d R. 605(b)(2)), and that any issue or claim of error not raised in the motion would be deemed waived (87 Ill.2d R. 605(b)(6)).
Thereafter, the defendant's counsel, assistant public defender Robert Chadwick, filed a motion to withdraw the plea of guilty and vacate the judgment, alleging only that the defendant's plea was involuntarily entered.
The defendant then filed, pro se, a motion to withdraw guilty plea and to vacate judgment. Also filed pro se on that date were a notice of appeal, motion for appointment of counsel, motion to proceed in forma pauperis, designation of trial record to be included on appeal, a docketing statement, proof of service, and motion for trial transcript and common law records. In the docketing statement under "GENERAL STATEMENT OF ISSUES PROPOSED TO BE RAISED" was written: "Ineffective assistance of counsel in violation of equal protection and due process, improper charge of burglery [sic], excessive bond."
An amended motion to withdraw plea of guilty and vacate judgment was filed by defense counsel, stating that, in addition to the allegation that his plea was involuntary, the defendant alleged that he was inadequately represented by his court-appointed counsel and that the State reneged on a promise of a two-year sentence of imprisonment. Also filed on that date was counsel's certificate in compliance with Supreme Court Rule 604(d) stating that he had consulted with the defendant concerning his contentions of error, that he had examined the court file and the report of the plea proceedings, and that he had made amendments to the motion as necessary. 87 Ill.2d R. 604(d).
At the hearing on the defendant's motion to withdraw his plea, the defendant was the only witness to testify on his behalf, and his counsel was the same counsel who had represented him throughout the earlier proceedings, Robert Chadwick. Chadwick asked the defendant to specify the grounds on which he based his motion to withdraw his guilty plea. The defendant testified that he did not understand what he was doing on the day he pleaded guilty due to the effect of the drugs he was taking. The defendant testified:
"A. [Defendant] Well, I was taking medication and I copped out for five years because you told me if I didn't take the five and I come [sic] before the judge I may get maybe 13, 14 years.
Q. [Defense Counsel] Okay, go ahead, anything else you want to say about that?
A. No, I don't know too much about the law but that's why
Q. Okay. And you didn't understand what you were doing because
A. No, I didn't, I didn't.
Q. Those drugs had an effect on you?
A. The drugs, they made me drowsy ...