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06/20/88 the People of the State of v. David Wilk

June 20, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

DAVID WILK, APPELLANT. -- THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

HEIDI ERICKSON, APPELLANT. -- THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE, V. DANNY G. BROWN, APPELLANT. -- THE

PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

EDDIE WRIGHT, APPELLANT



SUPREME COURT OF ILLINOIS

529 N.E.2d 218, 124 Ill. 2d 93, 124 Ill. Dec. 398 1988.IL.958

No. 64738. -- Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. John J. Bowman, Judge, presiding. No. 64739. -- Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Winnebago County, the Hon. John W. Nielson, Judge, presiding. No. 64742. -- Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Lake County, the Hon. John Hughes, Judge, presiding. No. 64744. -- Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. John J. Nelligan, Judge, presiding.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. JUSTICE CLARK, Concurring in part and Dissenting in part. JUSTICE STAMOS joins in this partial concurrence and partial Dissent.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

The defendants, David Wilk, Heidi Erickson, Danny Brown and Eddie Wright, pleaded guilty, and were convicted and sentenced on separate and unrelated charges. Their cases were consolidated for the purpose of this appeal because they raise similar questions of law related to Illinois Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)). Each of these defendants had filed a notice of appeal to the appellate court. Each of the appeals was dismissed for failure to comply with the requirements of Rule 604(d) that a motion to withdraw the guilty plea must be filed before taking an appeal. Rule 604(d) provides:

"(d) Appeal by Defendant From a Judgment Entered Upon a Plea of Guilty. No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment. The motion shall be in writing and shall state the grounds therefor." (107 Ill. 2d R. 604(d).)

Each defendant has raised the issue that the appellate court erred in dismissing his appeal. Although these defendants individually raise issues peculiar to the facts of their own cases, they all claim that their attorneys' failure to comply with Rule 604(d) amounts to ineffective assistance of counsel. They claim the appellate court should have granted their requests for remand to the trial court, to afford them the opportunity to comply with Rule 604(d), rather than dismiss their appeals. The facts and procedures in each defendant's case are different, and we will briefly outline them.

In No. 64738, defendant David Wilk, represented by an assistant public defender, pleaded guilty to residential burglary. He was sentenced to eight years' imprisonment on March 14, 1986. At sentencing, the court admonished the defendant in accordance with Rule 605(b) concerning his appeal rights and the fact that, under Rule 604(d), he would have to move to withdraw his plea prior to taking an appeal. Wilk filed a pro se motion to withdraw his guilty plea in accordance with Rule 604(d), having first executed a pro se affidavit on April 9 requesting an extension of time to file the motion. It cannot be ascertained from the record whether this document was timely filed. Defendant alleged the State failed to comply with the terms of a plea negotiation. An assistant public defender was appointed to help defendant with the motion to withdraw his plea. Eventually, the assistant public defender moved to dismiss the Rule 604(d) motion because it was not timely filed. This motion was granted. Wilk then filed a pro se notice of appeal. A State appellate defender was appointed to assist with this appeal and filed a motion for a remand to the trial court so that a Rule 604(d) motion could be filed there. The State did not oppose the motion for remand, but requested the appeal be dismissed to completely revest jurisdiction in the trial court. The appellate court denied the motion for remand and dismissed the appeal for failure to originally comply with Rule 604(d). After defendant's motion to reconsider that ruling was denied, we granted leave to appeal.

In No. 64744, defendant Eddie Wright pleaded guilty to retail theft. On April 18, 1986, he was sentenced to five years' imprisonment. He and his attorney were admonished at that time, in accordance with both Rules 605(b) and 604(d). On May 2, 1986, defendant's attorney appeared before the trial Judge and informed him of defendant's desire to appeal. The attorney filed a notice of appeal, without first filing a Rule 604(d) motion, and a State appellate defender was appointed. The appellate defender later filed a motion for remand to file a Rule 604(d) motion, citing trial counsel's incompetence as the reason for failure to comply with Rule 604(d). He also alleged that defendant's guilty plea was involuntary and that an impermissible consecutive sentence had been imposed. Again, the State did not oppose the remand but requested jurisdiction be totally revested in the trial court by dismissing the appeal. The remand motion was denied and the appeal dismissed. We granted leave to appeal after the appellate court denied defendant's motion to reconsider.

In No. 64742, the defendant Danny Brown, represented by an assistant public defender, pleaded guilty to aggravated battery of a three-year-old child. On May 7, 1986, he was sentenced to seven years' imprisonment and in the presence of counsel was admonished according to Rule 605(b) and Rule 604(d). On June 4, counsel filed a motion to reconsider the sentence, claiming it was excessive and failed to consider defendant's rehabilitative potential. The trial court denied the motion on June 6, whereupon counsel requested an appellate defender be appointed to appeal the sentence but not the issue of guilt. Counsel did not file a Rule 604(d) motion. Later, the appellate defender filed a motion for remand so that a Rule 604(d) motion could be filed. He alleged the failure of counsel to protect defendant's appeal rights amounted to ineffective assistance of counsel, and a remand would allow defendant to comply with Rule 604(d) so that defendant could appeal his sentence. The appellate court dismissed the appeal after denying the motion to remand.

In No. 64739, the defendant, Heidi Erickson, pleaded guilty to criminal trespass to land and disorderly conduct. Neither the plea proceedings nor the sentencing hearing was reported, so it is impossible to determine what admonishments defendant received. The defendant was represented by a public defender, who filed a motion to reconsider or modify defendant's two consecutive 30-day sentences. The motion alleged defendant's acts were part of a single course of conduct, making consecutive sentences improper and excessive. No Rule 604(d) motion was filed, but a notice of appeal was filed and an appellate defender was appointed. Subsequently, the appellate defender filed a motion for remand for filing a Rule 604(d) motion alleging ineffective assistance of counsel for failure to preserve defendant's appeal rights. The appellate defender further asserted a remand would provide a hearing record from which the appellate court could later take review. The State objected to the motion, declaring the failure to produce a record was the defendant's fault. The State also requested jurisdiction be revested in the trial court, should the remand motion be granted. The appellate court dismissed the appeal after denying the remand motion.

Although each case here is different on its facts, the central issue that each raises is what should be the effect of counsel's failure to comply with Rule 604(d). Wilk and Wright each filed a notice of appeal of their guilty pleas without a prior Rule 604(d) motion to withdraw the guilty plea. Brown and Erickson, however, first filed motions to reconsider the sentence imposed, then proceeded to appeal their sentencing. Because of this distinction, we find it necessary to consider People v. Brown and People v. Erickson separate from People v. Wilk and People v. Wright.

In examining the cases of Wilk and Wright, we observe that over the past decade, a somewhat confusing practice has arisen concerning Rule 604(d). Some of the divisions of our appellate court have declared that counsel's failure to file a Rule 604(d) motion is so serious a defect that it amounts to ineffective assistance of counsel (People v. Meacham (1977), 53 Ill. App. 3d 762), or amounts to no representation (People v. Morguez (1980), 90 Ill. App. 3d 471). It seems the practice of not filing a Rule 604(d) motion prior to filing a notice of appeal has become so widespread that divisions of the appellate court routinely allow motions to remand to file a motion to withdraw the plea, or the division retains the appeal and decides it on its merits even though Rule 604(d) has not been complied with. (People v. Meacham (1977), 53 Ill. App. 3d 762; People v. Morguez (1980), 90 Ill. App. 3d 471; People v. Porter (1978), 61 Ill. App. 3d 941; People v. Wren (1985), 131 Ill. App. 3d 678.) We note the State here raised no objections to the remand motions. This indicates to us that ...


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