APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
528 N.E.2d 375, 174 Ill. App. 3d 234, 123 Ill. Dec. 830 1988.IL.1305
Appeal from the Circuit Court of Coles County; the Hon. Paul C. Komada, Judge, presiding.
JUSTICE McCULLOUGH delivered the opinion of the court. GREEN, P.J., and LUND, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH
Defendant James Leonard Ledbetter appeals a trial court order denying his pro se motion to withdraw his guilty plea. The court denied a similar motion presented at defendant's sentencing hearing, finding no factual basis to support the withdrawal of the plea and denied the second motion at a post-conviction hearing without the presence of defendant or appointment and presence of counsel for the defendant. Defendant argues that Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)) requires that counsel be appointed to assist an indigent defendant with a motion to vacate a guilty plea. We agree and vacate.
On March 5, 1987, defendant was charged with retail theft. At defendant's request, counsel was appointed to represent defendant on March 6, 1987. On March 16, 1987, defendant entered a plea of not guilty and requested a jury trial. On June 9, 1987, defendant appeared in court with counsel, withdrew his previous plea, and entered a plea of guilty to the charge.
Prior to acceptance of defendant's guilty plea, the court fully admonished the defendant in accordance with Supreme Court Rule 402(a) (107 Ill. 2d R. 402(a)).
At the sentencing hearing on October 5, 1987, defendant's counsel presented an oral motion to withdraw defendant's guilty plea. In support of the motion, defendant's counsel argued that the State statute elevating a retail theft offense from a misdemeanor to a felony where a defendant had a prior theft conviction requires that the prior conviction must involve retail theft and not any other theft offense. Defendant stated that his guilty plea was based on the assumption he would be sentenced as a misdemeanant, not a felon, because his prior conviction did not involve retail theft and, therefore, wished to withdraw his plea. The court denied the motion and advised the defendant of his right to appeal after sentencing.
Defendant was sentenced to two years' imprisonment with credit for time served. The court again advised defendant of his right to appeal the conviction and explained that to perfect an appeal, the defendant must file within 30 days a motion to vacate the judgment and withdraw the guilty plea. The court further advised the defendant that if he was indigent, counsel would be appointed to assist him in the preparation and presentment of the motion. Defendant was also told that if his motion was denied, an appeal could be taken and must be filed within 30 days of the denial.
On October 13, 1987, defendant filed, pro se, a motion to withdraw his guilty plea. At a hearing on October 19, 1987, the court denied defendant's motion. Neither defendant nor counsel for the defendant was present at this hearing.
Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)) provides:
"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 trial court shall then determine whether the defendant is represented by counsel, and if the defendant is indigent and desires counsel, the trial court shall appoint counsel."
Defendant argues that this rule, by its express language, requires that counsel be appointed for a defendant at the time a motion to withdraw a plea is filed. In the alternative, defendant urges that fairness requires counsel be appointed in this case, given that the court specifically advised the defendant that counsel would be appointed to assist him with his motion. The State argues that this appeal is without merit because the trial court properly denied defendant's motion the first time it was presented and that the second motion merely ...