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04/09/87 the People of the State of v. Tracy Liedtke

April 9, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

TRACY LIEDTKE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

506 N.E.2d 984, 154 Ill. App. 3d 604, 107 Ill. Dec. 93 1987.IL.468

Appeal from the Circuit Court of Du Page County; the Hon. Donald J. Hennessy, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. NASH, J., concurs. JUSTICE UNVERZAGT, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Defendant, Tracy A. Liedtke, entered a plea of guilty to driving while driver's license is suspended (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 6-303) and leaving the scene of an accident resulting in injury or death without giving information and rendering aid (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-401(a)). Following a sentencing hearing, defendant was fined $200 on the former offense and sentenced to a six-month term in jail for the latter offense. Within 30 days after sentencing, defendant filed a "Motion to Reconsider Sentence" contending that the jail sentence for leaving the scene of an accident resulting in injury or death without giving information and rendering aid was an abuse of discretion and requesting a sentence of probation. The sentence for this offense was vacated by the trial court, and a new sentence of one-year probation, three months in jail, and a $300 fine was imposed.

The sole issue defendant raises on appeal is that the trial court abused its discretion in imposing a three-month jail term in addition to the sentence of probation and a fine. While the State has responded to this contention, it also asserts in its brief that defendant's appeal be dismissed because she failed to move to withdraw her plea of guilty and vacate the judgment pursuant to Supreme Court Rule 604(d) (103 Ill. 2d R. 604(d)). We must initially address this jurisdictional issue.

Defendant responds to the State's argument that the appeal should be dismissed by first contending that her "Motion to Reconsider Sentence" should be considered as satisfying the requirement of filing a 604(d) motion, and that where a negotiated plea is not involved, as here, the requirement of Rule 604(d) motion should not apply. Our resolution of these arguments is controlled by the decision of our supreme court in People v. Stacey (1977), 68 Ill. 2d 261, 369 N.E.2d 1254. In Stacey, as in the instant case, one of the defendants filed only a motion to reduce the sentence. The court held this motion did not comply with the requirements of the rule and that Rule 604(d) makes no distinction between a negotiated and nonnegotiated sentence imposed after a plea of guilty. (68 Ill. 2d 261, 264-67, 369 N.E.2d 1254; see also People v. Dorsey (1985), 136 Ill. App. 3d 1037, 1039, 483 N.E.2d 1065.) Thus, the appeal was dismissed.

The dismissal of an appeal for failure to file a proper motion under Rule 604(d) has been relaxed in appellate court decisions where the defendant has not been properly admonished by the trial court pursuant to the rule that such a motion must be filed in order to preserve the right to appeal (see People v. Potts (1985), 136 Ill. App. 3d 1059, 1061, 484 N.E.2d 306; People v. Lundeen (1977), 55 Ill. App. 3d 799, 801, 371 N.E.2d 329), where ineffective assistance of counsel for failure to file the motion contrary to defendant's wishes has been shown on the record (see People v. Morguez (1980), 90 Ill. App. 3d 471, 476-77, 413 N.E.2d 128; People v. Brownell (1980), 86 Ill. App. 3d 697, 698, 408 N.E.2d 304; People v. Meacham (1977), 53 Ill. App. 3d 762, 766-67, 368 N.E.2d 400), and where the criminal charge is void (see People v. Pride (1986), 144 Ill. App. 3d 612, 614-15, 494 N.E.2d 509). It also appears that the practice has developed that where trial counsel has failed to file the requisite Rule 604(d) motion, a motion in the appellate court to remand to the trial court to allow the filing of a late Rule 604(a) motion has been allowed in some instances. (See, e.g., People v. Joy (1986), 150 Ill. App. 3d 310, 312-14, 501 N.E.2d 1325.) Such motions have been filed in this court in several cases. This procedure, although not provided for by the supreme court rules, may have developed because ineffective-assistance-of-counsel arguments have been advanced against trial counsel for the failure to file the Rule 604(d) motion.

We need not determine the wisdom of this remandment procedure as that situation does not confront us here. Suffice it to say that we do not believe every failure to file the Rule 604(d) motion is per se a denial of the effective assistance of counsel which requires remandment. In many instances, a defendant may have elected not to file such a motion and only belatedly, when later dissatisfied, seeks a review of his sentence on direct appeal without timely filing the required Rule 604(d) motion. To allow defendants to circumvent Rule 604(d) in this way is not in the interests of finality in criminal cases nor consistent with the rule.

Thus, in the case before us we reject defendant's argument that her "Motion to Reconsider Sentence" satisfied the requirements of Rule 604(d). However, defendant has raised an additional contention in her reply brief that her counsel was ineffective for failing to file a proper Rule 604(d) motion. We note that she has the same counsel on appeal as she did in the trial court proceedings. She requests that we should determine the substantive issue raised concerning the sentence because of counsel's ineffective assistance in failing to file the Rule 604(d) motion.

From our examination of the record, it is evident that the trial court properly advised defendant upon her pleas of guilty according to Supreme Court Rule 605(b), including the requirement to file a motion to withdraw the plea of guilty and the consequences of a failure to file the motion. The record also shows that defendant wished to appeal from the denial of her "Motion to Reconsider Sentence," as the setting of an appeal bond was immediately requested, and defendant's counsel indicated defendant would be seeking review of the sentence. A notice of appeal was timely filed. Under this particular circumstance, where the record indicates that the sentencing issue would be appealed, defendant has shown the ineffective assistance of counsel by her trial counsel's failure to properly file a Rule 604(d) motion which would provide the only way to raise the sentencing issue on appeal.

As the complete record is before us and the parties have briefed the sentencing issue, for the reasons stated above, we deny the State's request to dismiss the appeal in these limited circumstances and proceed to decide the substantive issue raised on the merits. See People v. Morguez (1980), 90 Ill. App. 3d 471, 476-77, 413 N.E.2d 128.

Defendant contends that the three-month jail sentence as a condition of probation was an abuse of sentencing discretion. Essentially, she maintains that the trial Judge failed to consider her personal circumstances and the needs of the public and, instead, based the sentence on the fact that a fatality occurred. She argues that the accident was unavoidable, that the deceased was jogging or walking in the roadway, that she reported the accident shortly afterwards, that she was remorseful after the accident, and that she is a caring, ...


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