APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
540 N.E.2d 990, 184 Ill. App. 3d 1001, 133 Ill. Dec. 124 1989.IL.932
Appeal from the Circuit Court of Cook County; the Hon. Robert J. Sulski, Judge, presiding.
JUSTICE SCARIANO delivered the opinion of the court. BILANDIC, P.J., and DiVITO, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
Defendants were convicted at a bench trial of residential burglary. Before sentencing on this conviction, both defendants pleaded guilty to an earlier charge of possession of a stolen motor vehicle. The trial court then sentenced Ernie Belton to five years' and Ralph Powell to four years' imprisonment for the burglary, to run consecutively with the three-year sentence given both defendants for the possession charge. Defendants appeal, raising the following issues: (1) whether the trial court complied with Supreme Court Rule 402 (107 Ill. 2d R. 402) and determined that defendants' pleas of guilty to the charge of possession of a stolen motor vehicle were knowing and voluntary; (2) whether defendants were proven guilty of possession beyond a reasonable doubt; (3) whether section 5-8-4(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-4(h)) violates due process and the doctrine of separation of powers, and whether the sentences given defendants violate the prohibition against ex post facto laws; (4) whether the trial court erred in making Belton's sentences consecutive; and (5) whether the statute providing for the offense of possession of a stolen motor vehicle is unconstitutional.
Defendants were charged with two counts of theft and one count of residential burglary. During the hearing on their motion to dismiss the indictment, Belton testified that Powell came to his home at 635 West Barry in Chicago on November 1, 1985, at approximately 7 p.m. Defendants then went to a restaurant and later to a game room before returning to Belton's apartment; at approximately 9:30 p.m., they went out again. As they exited the lobby of Belton's building, they encountered Chicago police officer Albert Augustine, who asked them what they were doing. Belton replied that he lived in the building, and Augustine responded that they should go about their business. Powell corroborated this testimony; however, although Augustine stated that he went to 635 West Barry at 9:30 on November 1, 1985, to deal with a disturbance, he testified that he did not remember seeing Belton or Powell in the lobby at that time.
Belton further testified that, as defendants walked along Broadway towards a lounge at Addison and Broadway, approximately three minutes after they saw Augustine in the lobby, they noticed him driving a car north on Broadway. Powell saw the car turn onto Belmont. Augustine also testified that he turned north on Broadway after leaving the building. It began to rain, so defendants turned and began walking back towards Belton's apartment. They went south on Broadway to Briar Place, then turned right on Briar and left down an alley, toward the gangway of Belton's building. They stopped to urinate in the alley because the toilet in Belton's apartment was not working.
While they were in the alley, Augustine pulled up in his car. According to Belton, he and Augustine recognized one another, and Augustine told Belton that he had seen defendants turn down the alley and had followed them. Augustine conducted a pat down search and found a knife on Belton; he then went to the area where Powell was "taking a leak" and searched the area behind a fence, where he found a television set, video recorder and a bag of old clothes. Belton claimed that Augustine then handcuffed both him and Powell, and beat Powell "because he said he was taking a leak." Augustine called on his radio to determine whether there had been a burglary and, after learning there had been one at 614 Barry, he brought defendants to a parking lot near that address. Belton testified that Augustine began talking to a lady who claimed to have seen the burglars but, after looking at defendants, she indicated they were not the thieves.
In his testimony, Augustine denied telling defendants that he had followed them, denied that he had spoken to a woman at any time that night and stated that no one told him that he or she had seen the burglars. He testified that he and his partner were at Wellington and Broadway at approximately 10:30 p.m., on November 1, 1985, when they received a radio call that a burglary had just occurred. They proceeded north to Briar, and after turning left on Briar, as they passed an alley, they saw a black male, later identified as Powell, placing a television set behind a fence. Augustine backed the car up, shut off the lights, then pulled the car into the alley, where he saw two males walking toward him. He conducted a pat down search of Belton and found a small pocketknife as well as "other property" in a flap pocket in the waistband of his sweat pants. Augustine placed defendants under arrest and took them in his car to the area of 614 Barry, where he unsuccessfully "looked for witnesses."
The trial Judge denied the motion to dismiss the indictment. The parties then moved that relevant evidence taken in the motion to dismiss the indictment be incorporated with the evidence taken at trial. During the bench trial, Harold Gahan testified that he left his apartment at 614 Barry at 8 p.m. and returned at approximately 10:20 p.m. on the night of November 1, 1985. He saw that a television set, a video recorder and the cabinet in which they were stored were missing from the apartment, that the back door was open and that a stereo component was placed at the back door. Upon entering the master bedroom, he saw that a weight set in the room had been thrown on the waterbed, and that a pair of diamond cufflinks and a graduation ring were missing.
While waiting for the police, Gahan noticed that the screen on the left side front window was ripped open and that the frame of the front door was pulled away. When the police arrived, Gahan went to the back of the building and identified his television set, video recorder and cabinet. When his roommate, John Muller, arrived home they went to the police station, where Gahan identified his ring and cufflinks. Gahan stated that all their missing property was returned to them; however, Muller testified that he was missing a ring and a watch, that he had not noticed them missing until a month before trial, and that he was not certain whether they had been taken during the burglary.
Augustine testified that at approximately 10:30 p.m., he and his partner received a radio call that a burglary had just occurred at 614 Barry and that the offenders were possibly nearby. Augustine drove north on Broadway and turned left on Briar, which is one block north of Barry. He did not turn on Barry because he saw a squad car on that street. As he passed an alley, he saw a black male place a television set behind a fence. Augustine continued to testify to basically the same information he gave at the motion to dismiss the indictment. His partner, Bocconcelli, confirmed Augustine's testimony.
Belton's wife testified that on February 1, 1986, she went to the county jail and received the sweat pants Belton was wearing on the night of his arrest. She stated that the pants had no pockets; however, she also admitted that the pants were in Belton's possession from the time of his arrest until the date she received them.
The Judge found defendants guilty of residential burglary. At the sentencing hearing, both defendants pleaded guilty to a prior charge of possession of a stolen motor vehicle. The trial Judge then sentenced Belton to five years' and Powell to four years' imprisonment for the burglary, to run consecutively with a three-year sentence for the possession of a stolen motor vehicle for each defendant. They now appeal.
Defendants first argue that the trial court erred in not determining whether their guilty pleas were knowing and voluntary, pursuant to Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709, and Supreme Court Rules 402(a) and (b). However, defendants failed to bring a motion to withdraw their guilty pleas and to vacate the judgment, as required by Supreme Court Rule 604(d), which provides in pertinent part:
"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." (107 Ill. 2d R. 604(d).)
Such a failure "is a jurisdictional defect which prevents this court from entertaining an appeal from that judgment unless the defendant has not been properly admonished . . . that he must file such a motion in order to preserve his right to appeal." (People v. Potts (1985), 136 Ill. App. 3d 1059, 1061, 484 N.E.2d 306; see also People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218; People v. Stacey (1977), 68 Ill. 2d 261, 369 N.E.2d 1254; People v. Young (1977), 56 Ill. App. 3d 106, 371 N.E.2d 646.) Defendants were properly admonished in this case; therefore, this matter is not properly before this court.
However, even if we were to consider defendants' contentions, we would decline to grant them the relief they seek, for Supreme Court ...