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02/17/88 the People of the State of v. Allen B. Lev

February 17, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ALLEN B. LEV, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

519 N.E.2d 1168, 166 Ill. App. 3d 173, 117 Ill. Dec. 1 1988.IL.219

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

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. UNVERZAGT and HOPF, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendant, Allen Lev, appeals from the order of the circuit court of Du Page County denying his motion to vacate his guilty plea pursuant to Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)). Defendant pleaded guilty to the charge of attempted possession of a controlled substance with the intent to deliver and was sentenced to 30 months' probation subject to service of 90 days' work release, a $500 fine, and forfeiture of $30,000. On appeal, defendant argues that his conviction must be vacated since the offense for which he stands convicted does not exist under Illinois law and is illusory.

The State charged defendant with attempted unlawful possession with the intent to deliver a controlled substance and conspiracy to commit unlawful possession of a controlled substance with the intent to deliver. These charges stem from defendant's attempting to purchase 30 grams of cocaine from an undercover agent, Kenneth Kaupas. Kaupas would have testified that he met with Frank O'Brien, a codefendant, on April 15, 1985, who sought a cocaine supplier for large scale drug transactions. O'Brien discussed with Kaupas the purchase of a kilogram of cocaine at a cost of $44,000.

In June 1985, O'Brien contacted Kaupas indicating that he knew someone who was interested in purchasing cocaine. Kaupas and O'Brien arranged to transact the narcotics deal in Naperville, Illinois. Kaupas also spoke with someone who identified himself as "Al." Al told Kaupas that he had the money for the purchase and further discussed the quality and quantity of cocaine and the opportunity to conduct future transactions.

Kaupas arrived at Dominick's Food Store in Naperville at 4 p.m. and approached O'Brien, who was seated in a car. O'Brien introduced defendant and Ronald Nemerow as the person who contributed money for the purchase. Defendant discussed the quality of the cocaine and the possibility of conducting future transactions. Defendant produced a large sum of money from the front seat of the car and proceeded to walk with Kaupas in order to pick up the cocaine. Kaupas gave the prearranged arrest signal, at which time the surveilling agents effected the arrest. The search of the vehicle belonging to O'Brien revealed a triple beam scale as well as a four-ounce bottle of inositol powder and a one-half ounce bottle of superior inositol, which is usually combined with cocaine before it is sold.

Defendant, waiving his Miranda rights, admitted that approximately $30,000 of the purchase money belonged to him. According to the defendant, the balance was Ronald Nemerow's money.

On June 9, 1986, after being advised of his rights, defendant pleaded guilty as a result of a plea agreement with the State. The agreement provided that defendant would waive his interest in the $44,000, receive 30 months' probation and 90 days' work release, pay $12 daily room and board charges, and pay a $500 fine. The State nolprossed the charge of conspiracy. The court, advising defendant of his right to appeal, stated:

"If you do decide to appeal, in order to appeal, you must file a motion in this Court within 30 days of today's date asking leave to withdraw the plea of guilty and vacate the sentence and conviction listing legal grounds. If you are unable to afford an attorney and you are indigent, I will appoint an attorney to represent you, and a record of all court proceedings will be made available to you free of charge."

On July 7, 1986, defendant filed a pro se notice of motion which stated that on July 11 defendant planned to "move the court for an extension of time in which to file a motion to vacate plea of guilty." On July 11 the court appointed the public defender to represent defendant on his motion to withdraw his plea of guilty. The public defender filed a motion to vacate the guilty plea on July 14, 1986. On July 17 the court granted defendant leave to amend his motion to include facts supporting his request, i.e., that the charge as stated was not a violation of a criminal statute and that the court was without jurisdiction to enter judgment on defendant's plea of guilty. The State did not object to the amendment but stated for the record that since 30 days had passed since sentencing, the court lacked jurisdiction to entertain the motion. The court thereafter denied defendant's motion, and defendant appeals.

The State urges us to dismiss the appeal for lack of jurisdiction in that the defendant failed to perfect his appeal by timely filing a motion to vacate his sentence and withdraw his guilty plea. The argument that a criminal charge is void can be raised at any time, regardless of whether it was properly preserved for review. (People v. Pride (1986), 144 Ill. App. 3d 612, 614, 494 N.E.2d 509, 511, citing People v. McCarty (1983), 94 Ill. 2d 28, 445 N.E.2d 298.) Where a defendant was convicted of and sentenced for a charge that has no statutory authority, the judgment is void. (Pride, 144 Ill. App. 3d at 614, 494 N.E.2d at 511.) In Pride, the court found that a conviction and a sentence for an offense that did not exist violated a defendant's constitutional right to due process so it decided to address ...


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