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09/07/89 the People of the State of v. John Wayde Patrick

September 7, 1989





544 N.E.2d 1042, 188 Ill. App. 3d 542, 136 Ill. Dec. 267 1989.IL.1390

Appeal from the Circuit Court of Cook County; the Hon. Vincent Bentivenga, Judge, presiding.


JUSTICE JOHNSON delivered the opinion of the court. LINN and McMORROW, JJ., concur.


Defendant entered a negotiated plea of guilty to a charge of burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-1(a)), and in accordance with the terms of that agreement, was sentenced to five years' imprisonment to run concurrently with the five-year term previously imposed on his separate jury conviction of possession of a stolen motor vehicle. Defendant now requests that his cause be remanded so that he may be given an opportunity to file a motion to withdraw his guilty plea because the trial court failed to admonish him in accordance with Supreme Court Rule 605(b) (107 Ill. 2d R. 605(b)).

We remand.

The record shows that defendant was separately charged with the offenses of burglary and possession of a stolen motor vehicle which occurred at different times and places. A jury found defendant guilty of the possession charge, and on March 6, 1987, he was sentenced to a term of five years' imprisonment. Following that judgment the court advised defendant of his appeal rights, including the necessity of filing a written notice of appeal within the next 30 days. The court also told him that counsel would be available to assist him if he did not have the means to hire his own attorney.

At that point in the proceedings, the court inquired about the pending burglary case, then proceeded to other matters. On the next call defense counsel informed the court that pursuant to his conference with the State, defendant had decided to change his plea on the burglary charge in exchange for the State's recommendation that he be sentenced to a five-year term concurrent with the term imposed on the prior conviction.

The court then meticulously admonished defendant in accordance with Supreme Court Rule 402 (107 Ill. 2d R. 402) and specifically inquired as to whether counsel had an adequate opportunity to discuss the change of plea with defendant, defendant's wife and other members of defendant's family. Counsel responded:

"Yes, I have. In addition, your Honor, I would also indicate that by virtue of the fact that we are entering a plea of guilty to the second charge I have discussed with Mr. Patrick, as the court has explained, his Appellate rights and he has indicated he does not direct me to file a Notice of Appeal with respect to either one of these cases."

The court then continued the admonitions and accepted defendant's plea based on defendant's perceived understanding of the proceedings, the facts which substantiated the charge of burglary, and defendant's representations as to the voluntariness of his plea. The court then sentenced defendant in accordance with the plea agreement, and the parties discussed the time defendant would be credited on this charge.

The record further shows that judgment was entered on this plea on March 6, 1987, and that no further action was taken until August 6, 1987, when this court granted defendant leave to file a late notice of appeal from the judgment. Meanwhile, defendant filed a timely notice of appeal from his possession conviction, and that judgment was affirmed in an unpublished order filed on June 30, 1989. People v. Patrick (1st Dist. 1989), No. 1--87--0975 (unpublished order under Supreme Court Rule 23).

Defendant contends solely that his cause should be remanded to the circuit court for further proceedings because the trial court failed, inter alia, to admonish him of the necessity of filing a motion to withdraw his plea within 30 days of the imposition of sentence prior to taking an appeal, and that any claim of error or issue not raised in that motion would be deemed waived for purposes of appeal. (107 Ill. 2d R. 605(b).) The State responds that defendant was properly admonished as to his appellate rights in the case which concluded shortly before this one began, and that since he failed to file a timely notice of appeal, he has waived his right to appeal. In the event that this argument is rejected, the State adds that defendant's appeal should be dismissed because he failed to include facts showing the basis for ...

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