Appeal from the Circuit Court of Marion County; the Hon.
Richard G. Hodson, Judge, presiding.
JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 8, 1987.
Defendant, Thomas F. Joy, pleaded guilty to a six-count bill of indictment, charging him with six separate deliveries of a controlled substance (five counts heroin; one count psilocyn) on August 30, 1983. There was no prior agreement as to sentence. On November 4, 1983, extensive evidence in aggravation and mitigation was heard by the trial judge. At the conclusion of the sentencing hearing, the trial court took the matter under advisement and continued the case until November 17, 1983. On November 17, the judge denied the defendant's request for probation and sentenced him to a minimum sentence to the Department of Corrections for three years. The defendant thereafter appealed the trial court's disposition (cause No. 5-83-0810); however, because trial counsel failed to file a Rule 604(d) motion (87 Ill.2d R. 604(d)) in the trial court, we remanded the case to the trial court under a mandate to allow the defendant to file for relief under Supreme Court Rule 604(d). The case has now returned to this court with the defendant appealing the trial court's ruling that it lacked jurisdiction and authority to consider a modification or reduction of his sentence.
• 1 Defendant's first contention on appeal is that the trial court erred in failing to consider the merits of his motion to reduce or modify his sentence. After his initial appeal was remanded to the trial court to enable counsel to file a Rule 604(d) motion, the defendant filed a motion entitled "Motion Pursuant to Rule 604." In this motion defendant incorporated a request under section 5-8-1(c) of the Unified Code of Corrections (hereinafter the Code) (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-1(c)), to reduce or modify his sentence. The trial judge refused to consider the merits of the motion based upon his conclusion that he had no jurisdiction to do so. The trial judge stated: "I'm finding that in reading the Appellate Court order to me which is at this juncture my only source of jurisdiction and authority to act * * * [t]hat I am not entitled to be thinking about, that is to be considering modifying or reducing the existing sentence." On appeal defendant renews his argument presented to the trial court that the appellate court mandate created jurisdiction in the trial court to consider a motion to reduce or modify the sentence made under section 5-8-1(c) of the Code when hearing a motion pursuant to Supreme Court Rule 604(d). The defendant assigns as error the trial court's findings that: (1) the appellate court mandate did not give it jurisdiction and authority to consider a modification or reduction of sentence, and (2) that the evidence presented was not sufficient for a withdrawal of the plea of guilty. It is noteworthy that the defendant is not requesting that his plea be vacated on appeal but rather defendant is only attacking the sentence.
Upon being sentenced, the defendant was admonished of his appeal rights. At that point, the trial court had jurisdiction to consider two separate and distinct motions by the defendant. One of these motions is pursuant to section 5-8-1(c) of the Code, requesting the trial court to reduce or modify the sentence of November 17, 1983. This motion must occur within 30 days of sentencing for the court to have jurisdiction. A motion to reduce or modify the sentence is not a prerequisite to an appeal nor does the failure to file such a motion in the trial court prejudice a defendant's appeal from a trial court's sentence. The second method is a direct appeal of the trial court's rulings. This was the method that defendant adopted to challenge his sentence. However, because his trial counsel failed to file a motion in the trial court under Supreme Court Rule 604(d) to withdraw his plea of guilty and vacate the judgment, this court remanded the case to the trial court under a mandate to allow the defendant to file for relief under Rule 604(d).
The Rule 604(d) motion is a procedural requirement of the Supreme Court Rules that "insures that constitutional claims which arise dehors the record * * * will be first directed to the trial court and at a time when witnesses are still available and their memories fresh." In this way, the record would contain matters demonstrating if a plea of guilty was not voluntarily made. (People v. Frey (1977), 67 Ill.2d 77, 84, 364 N.E.2d 46, 48-49.) The difference between a Rule 604(d) motion and a section 5-8-1(c) motion is demonstrated in the recognition that a plea of guilty is a bargain where both the defendant and the State obtain benefits and give up certain rights. As part of this bargain, both parties agree to accept whatever punishment the court might see fit to impose. (People v. Edwards (1977), 47 Ill. App.3d 206, 361 N.E.2d 1144; People v. Bryant (1977), 45 Ill. App.3d 428, 430-31, 359 N.E.2d 888, 890, affirmed (1977), 68 Ill.2d 261, 369 N.E.2d 1254.) Because of this agreement, allowing the defendant to attack only the sentence imposed without requesting withdrawal of his plea would result in the State receiving less than it bargained for. (People v. Stacey (1977), 68 Ill.2d 261, 265, 369 N.E.2d 1254, 1256.) The distinction between a request for a sentence modification under section 5-8-1(c) and a Rule 604(d) motion is further demonstrated in People v. DeSoto (1980), 84 Ill. App.3d 226, 405 N.E.2d 476. In DeSoto, the appellate court concluded that the filing of a motion under section 5-8-1(c) of the Code and a delay in filing a Rule 604(d) motion beyond 30 days from the sentence did not comply with the 30-day requirement. The court stated:
"We are of the opinion that Supreme Court Rule 604(d), read in conjunction with the foregoing statute (paragraph 1005-8-1(c)), does not allow the filing of a motion to modify sentence to toll the 30-day time period required for filing a motion to withdraw a guilty plea." 84 Ill. App.3d 226, 227, 405 N.E.2d 476, 477.
The defendant argues that the grounds for remanding this cause previously to permit defendant to file a Rule 604(d) motion was ineffective assistance of defendant's prior counsel and that such grounds should also justify consideration of a motion to modify sentence. This request overlooks the reason why remand was allowed based on the ineffective assistance of defendant's prior counsel. An appeal filed without compliance with Rule 604(d) deprives the defendant of his right to appeal after a plea of guilty by failing to vest jurisdiction in the appellate court. Thus, counsel's failure to file a Rule 604(d) motion constitutes a substantial flaw in his representation of a defendant desiring to appeal. However, a motion to modify or reduce a sentence pursuant to section 5-8-1(c) of the Code is not a prerequisite to an appeal and, accordingly, failure to file such a motion does not necessarily rise to ineffective assistance of counsel. An examination of the record in this cause leads us to conclude that defendant's trial counsel's failure to file the section 5-8-1(c) motion does not amount to ineffective assistance of counsel.
• 2 The defendant also argues that a mandate to allow a Rule 604(d) motion to be filed creates jurisdiction in the trial court to hear other matters, including a motion to modify or reduce the sentence. This argument was foreclosed by the Illinois Supreme Court in People ex rel. Daley v. Schreier (1982), 92 Ill.2d 271, 275-76, 442 N.E.2d 185, 187-89. The mandate in the Schreier case directed Judge Schreier to correct an erroneous sentence. Upon remand, Judge Schreier took the position that, since a court may vacate its finding within 30 days after final judgment, there being no sentence but only a conviction, he had consequently retained jurisdiction over the case and could properly grant a motion for a new trial. Although Judge Schreier correctly noted that a judgment includes both a conviction and a sentence, the Illinois Supreme Court, after considering these propositions, explained why there was no jurisdiction:
"Even if we were to assume the correctness of this proposition, it is not applicable in the instant case. It is irrelevant whether or not respondent had jurisdiction to vacate his findings because there was no longer a final judgment. Respondent's order failed to comply with our mandate, and for that reason he lacked jurisdiction to enter it." (92 Ill.2d 271, 279, 442 N.E.2d 185, 189.)
This court's mandate in the instant case was an unambiguous direction to the trial court "that this cause be and hereby is remanded to the circuit court of Marion County with instructions to allow defendant to file a motion to withdraw his plea of guilty." If the trial court found sufficient evidence to grant defendant's motion to withdraw his plea of guilty pursuant to Rule 604(d), the sentencing issue would have been moot. However, the trial court's finding that the evidence was insufficient precluded the trial court's consideration of a motion to modify the sentence because of the limited jurisdiction conferred by our mandate. In People v. Nicewanner (1981), 93 Ill. App.3d 1, 416 N.E.2d 776, the appellate court put the issue presented by the defendant in the instant case in proper procedural perspective when it remanded that case for filing a motion under Rule 604(d). The court stated:
"Should the court grant the defendant's motion to withdraw his plea and vacate the judgment, then the conviction and sentence will be vacated and the sentencing issue will no longer be relevant. Should the court deny the 604(d) motion on remandment, then the defendant can proceed with his appeal and raise the issues with respect to sentencing within such appeal." (93 Ill. App.3d 1, 6, 460 N.E.2d 776, 780.)
Similarly, in the case at bar the trial court's finding that the evidence was insufficient to grant defendant's motion to withdraw his plea of guilty precluded the trial court's consideration of a motion to modify the sentence.
• 3 We also note that in considering the guidelines used by the appellate courts in reviewing a motion to withdraw a plea, there is no distinction drawn between a negotiated and nonnegotiated sentence (as in the case at bar) imposed after a plea of guilty. (People v. Stacey (1977), 68 Ill.2d 261, 266, 369 N.E.2d 1254, 1256.) A guiding principal is to determine whether the refusal to grant a defendant's motion of withdrawal was an abuse of discretion when it appears that the plea of guilty was entered on a misapprehension of facts or the law. (People v. Hale (1979), 77 Ill. App.3d 721, 723-24, 396 N.E.2d 317, 319.) The courts have recognized that a plea may also be involuntary due to a misapprehension as to the sentencing alternatives. This was not an issue presented by the defendant in this case. However, a ...