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09/12/89 the People of the State of v. Elizabeth M. Kennedy

September 12, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ELIZABETH M. KENNEDY, DEFENDANT-APPELLANT



Before addressing the merits of defendant's arguments on appeal, we note that defendant did not file a motion to reconsider her sentence. We must determine, in light of People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, and our previous decision in People v. Favelli (1988), 176 Ill. App. 3d 618, 531 N.E.2d 386, whether the failure to file a motion to reconsider the sentence either deprives this court of jurisdiction or waives the sentencing issues for review.

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

543 N.E.2d 617, 188 Ill. App. 3d 1, 135 Ill. Dec. 234 1989.IL.1415

Appeal from the Circuit Court of Boone County; the Hon. David A. Englund, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. NASH, J., concurs. JUSTICE McLAREN, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Defendant, Elizabeth M. Kennedy, pleaded guilty in the circuit court of Boone County to the felony offense of driving while her driver's license was revoked, having previously been convicted of this same offense (Ill. Rev. Stat. 1987, ch. 95 1/2, pars. 6-303(a), (d)), and was sentenced to a 2 1/2-year term of probation with the condition, among others, that she serve 18 months' of periodic imprisonment without eligibility for credit for the time served on periodic imprisonment.

On appeal, defendant raises two sentencing issues: (1) whether the 18-month periodic imprisonment condition was excessive, and (2) whether the circuit court improperly denied her good-time credit on the periodic-imprisonment portion of the sentence.

Subsequent to her plea of guilty, a sentencing hearing was held during which several witnesses testified and a presentence report was submitted to the court. The presentence report states that defendant was the driver of an automobile involved in an accident where two persons in the other automobile were injured. Defendant appeared to have been drinking alcohol, open beer cans were recovered from her vehicle, and she had a .20 blood-alcohol test reading. Her driver's license had been revoked for a previous driving while under the influence of alcohol conviction. She has a prior history of numerous convictions of various traffic offenses, including DUI convictions, and for driving while her license was revoked and suspended. Several witnesses, including family members, testified in defendant's behalf. Essentially, their testimony was that defendant was an alcoholic, that subsequent to the accident here defendant had undergone extensive inpatient and outpatient treatment for her alcohol problem, and that she was successfully recovering from her alcohol addiction.

In People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, our supreme court distinguished between cases where defendants who had pleaded guilty sought to challenge their guilty pleas on appeal but had not filed a motion to withdraw their pleas in the trial court from cases where defendants had pleaded guilty and did not challenge their guilty pleas but only appealed the trial court's denial of their motion to reconsider their sentences. In the former cases, the court held that the filing of a motion to withdraw the plea in the trial court in conformance with Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)) was a condition precedent to an appeal requiring dismissal of the appeal in the absence of such a motion. (Wilk, 124 Ill. 2d at 107, 529 N.E.2d at 222; see also People v. Frey (1977), 67 Ill. 2d 77, 364 N.E.2d 46.) Rule 604(d) is, therefore, jurisdictional. (People v. Partee (1988), 125 Ill. 2d 24, 33, 530 N.E.2d 460.) On the other hand, defendants only appealing the trial court's denial of their motion to reconsider their sentences are not required to file a motion to withdraw their guilty pleas under Rule 604(d). (Wilk, 124 Ill. 2d at 110, 529 N.E.2d at 224.) The court further disavowed the prior holding in People v. Stacey (1977), 68 Ill. 2d 261, 369 N.E.2d 1254, as inconsistent with its opinion, wherein the filing of a Rule 604(d) motion was held to be a condition precedent to an appeal of a sentence only. Wilk, 124 Ill. 2d at 110, 529 N.E.2d at 224.

Thus, where, as here, defendants only appeal the sentence imposed, the jurisdictional step of filing a Rule 604(d) motion is not required. "No step in the perfection of the appeal other than the filing of the notice of appeal is jurisdictional" (107 Ill. 2d R. 606(a)), except where the rules specifically so provide, as in the case of an appeal of a guilty plea under Rule 604(d). (Partee, 125 Ill. 2d at 33, 530 N.E.2d at 464.) As no appeals rule of our supreme court specifically requires any step other than the filing of a notice of appeal to perfect an appeal raising a sentencing issue after a plea of guilty, the failure to file a motion to reconsider the sentence is not a jurisdictional step.

We next consider, however, whether a motion to reconsider the sentence following a guilty plea and sentence, although not jurisdictional, is necessary to preserve the issue for review such that the failure to do so constitutes a waiver of the issue. No supreme court rule requires such a motion. Neither Rule 604(d) nor Rule 605(b) mentions a motion to reconsider the sentence, and the clear purpose of Rule 604(d) is to ascertain contentions of error in the entry of the plea of guilty which could be readily corrected in the trial court, if called to the attention of the trial court, and to make a record of such allegations of error. (Wilk, 124 Ill. 2d at 104, 529 N.E.2d at 222.) Nor is there a statutory requirement that a motion to reconsider the sentence be filed, as is the case in a trial where there has been a guilty finding or verdict and a post-trial motion is required to preserve trial errors. (See Ill. Rev. Stat. 1987, ch. 38, par. 116-1(b); People v. Enoch (1988), 122 Ill. 2d 176, 185-89, 522 N.E.2d 1124.) A motion to reduce a sentence of imprisonment is permitted by statute (Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-1(c)), but is inapplicable to the situation here.

In Wilk, the defendants who sought to have their sentences reviewed on appeal did file motions to reconsider the sentences in the trial court. (Wilk, 124 Ill. 2d at 110, 529 N.E.2d at 224.) Nevertheless, while the supreme court in Wilk distinguished that fact from the other cases before it where the guilty plea only was challenged, we do not read Wilk as establishing a rule of procedure requiring a motion to reconsider the sentence be filed in the trial court in cases where there has been a plea of guilty. The reviewing court will have the record of the sentencing hearing before it, and there is no necessity for a motion to reconsider a sentence. Indeed, there is no requirement for a motion to reconsider the sentence imposed after a guilty finding, and we see no reason to differentiate between that situation and one where a sentence is imposed after a guilty plea, absent an express direction by rule, statute, or supreme court decision.

We recognize that certain claims of error on appeal concerning the sentencing hearing have been found to be waived if not objected to because they could have been corrected if brought to the attention of the trial court. (See, e.g., People v. Davis (1982), 93 Ill. 2d 155, 442 N.E.2d 855 (failure to request a statement of the trial court's reasons for the sentence imposed); People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9 (failure to object to sufficiency of presentence report).) Nonetheless, where the sentence only is challenged as excessive, we find no case law or other authority to support the proposition that there is a waiver of that issue if there is no motion to reconsider the sentence. The trial court has heard any evidence and arguments by counsel or a defendant ...


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