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02/28/94 PEOPLE STATE ILLINOIS v. BRYAN E. HOULE

February 28, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
BRYAN E. HOULE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Ogle County. Nos. 90-CF-130, 90-CF-130A-C. Honorable Robin A. Minnis, Judge, Presiding.

Petition for Rehearing Denied March 16, 1994. Petition for Leave to Appeal Denied October 6, 1994.

PECCARELLI, Doyle, Colwell

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

Defendant, Bryan E. Houle, pleaded guilty to the offense of armed robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18-2(a) (now 720 ILCS 5/18-2(a) (West 1992))) in each of four counts and was sentenced to 17 years' imprisonment on each count. Each sentence was to be concurrent. Defendant filed a motion to withdraw his guilty plea and vacate the judgment of incarceration. The trial court denied defendant's motion to withdraw his guilty plea. Defendant appeals and contends that the trial court's order denying his motion to withdraw his guilty plea should be reversed and the cause remanded for a rehearing because defense counsel failed to comply with Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)) *fn1

The defendant was indicted on May 15, 1991, on one count of armed robbery. Informations were filed on August 12, 1991, charging defendant with three additional counts of armed robbery. Pursuant to plea negotiations the defendant waived his right to a jury trial and on August 12, 1991, pleaded guilty to the four counts of armed robbery. The plea agreement was that the defendant would plead guilty to four counts of armed robbery; would receive concurrent terms of 17 years' incarceration; would receive a concurrent term of not more than 17 years for a charge pending in Winnebago County; would waive all rights to appeal; would receive credit on the sentence in the instant cases for time served in Winnebago County; and the State's Attorney would recommend to the Department of Corrections that the defendant be placed in a medium security facility.

At the guilty plea hearing the trial court admonished defendant of various constitutional rights. The State's Attorney recited a factual basis for the plea. Defendant's counsel stipulated to the factual basis. The State's Attorney represented that if members of the Rochelle police department and the Ogle County sheriff's department, as well as the individual victims, were called as witnesses they would provide evidence implicating the defendant in each armed robbery. There would also be testimony from a codefendant, Kenneth Greer, who previously pleaded guilty to the armed robbery in the indictment.

On count I, the evidence would show that Kenneth Greer was present on December 11, 1990, in Bill's IGA grocery store when $2,700 was taken from the person of Lori Kramer and that the defendant used a gun.

On count II, the evidence would show that on November 13, 1989, the defendant entered Doc's Drug Store in Rochelle and took $750 from the person of Diane Frailey, an employee of Doc's Drug Store, and that defendant used a hunting knife.

On count III, the evidence would show that on January 13, 1990, the defendant entered a Wal-Mart store and took $700 from Joyce Meyers and used a Crossman air gun.

On count IV, the evidence would show that the defendant took $120 from an employee of the Outer Limits Tavern and that he threatened the employee with a Crossman air gun. Defendant's counsel stipulated to the factual basis. The court found there was a sufficient factual basis for the plea and there had been a knowing and voluntary waiver of the right to trial. The court sentenced the defendant to 17 years on each count and the sentences were to run concurrently. On September 11, 1991, defendant filed a motion to withdraw his guilty plea and vacate the judgment of incarceration.

On November 12, 1991, a hearing was conducted on the motion to withdraw his guilty plea and to vacate the judgment of incarceration. Defendant was represented by defense counsel George Fisher who had been defendant's counsel at the time defendant pleaded guilty. The defendant testified. During the hearing it appeared that defense counsel George Fisher might have a conflict of interest. He requested leave to withdraw from the case. The court granted that motion and the hearing was rescheduled. On November 13, 1991, Attorney Donald J. Miller of Forreston, Illinois, was assigned to represent the defendant. On December 19, 1991, another hearing on the defendant's motion to withdraw his plea of guilty occurred. The defendant testified. The court heard the arguments of counsel. On May 26, 1992, defendant's motion to withdraw the guilty plea and vacate the judgment of incarceration was denied.

On appeal, defendant contends that the cause must be remanded for a rehearing on his motion to withdraw his guilty plea and to vacate the judgment of incarceration because defense counsel failed to file a Rule 604(d) certificate. In this case no certificate was filed.

The State contends that the defendant waived his right to bring an appeal pursuant to his negotiated plea agreement, that such a waiver is enforceable, and that defendant is estopped from maintaining the instant appeal by virtue of the waiver ...


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