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03/18/94 PEOPLE STATE ILLINOIS v. GARY SAWYER

March 18, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GARY SAWYER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 92-CF-1185. Honorable John R. Goshgarian and Christopher C. Starck, Judges, Presiding.

Released for Publication April 19, 1994.

Doyle, Colwell, PECCARELLI

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Defendant, Gary Sawyer, pleaded guilty to one count of attempted robbery (Ill. Rev. Stat. 1991, ch. 38, pars. 8-4(a), 18-1(a) (now 720 ILCS 5/8-4(a), 5/18-1(a) (West 1992))). After the trial court denied his motion to withdraw his guilty plea, he was sentenced to an extended term of 10 years' imprisonment. On appeal, defendant argues that the trial court abused its discretion in refusing to allow him to withdraw his guilty plea.

We affirm the judgment of the circuit court.

On July 1, 1992, defendant was indicted on two counts of robbery. On July 10, 1992, Assistant Public Defender Carol Hodge was assigned to represent him. On July 13, 1992, defendant was arraigned and entered a plea of not guilty. On July 23, with defendant present in open court, Hodge informed Judge Goshgarian that defendant had rejected the State's offer of probation and county jail time in return for a guilty plea and that defendant would be proceeding to trial. On August 3, 1992, at another hearing before Judge Goshgarian, the assistant State's Attorney reported that the parties had no negotiations to present to the court. Attorney Hodge stated that she assumed the case would be going to a jury trial.

On August 10, 1992, after a hearing that defendant did not attend, the court entered an order transferring the case to Judge Starck, continuing the case for trial, and assigning defendant new counsel because Hodge no longer worked for the public defender.

On that same day, the court held a hearing at which defendant was present. Counsel for the parties agreed that, in return for the State dropping the two original robbery charges, defendant would enter an open plea of guilty to a newly added charge of attempted robbery. Pursuant to Supreme court Rule 402 (134 Ill. 2d R. 402), the court admonished defendant of the consequences of his plea. Defendant, who had conferred earlier with his new counsel, stated that he understood that he was giving up certain rights by pleading guilty, that he understood the possible penalties he faced, that there were no threats or promises other than the plea agreement that affected his decision to plead guilty, and that it was his voluntary decision to plead guilty to attempted robbery. Defendant told the court that Hodge had told him she was going to present a negotiated plea to the court, but that she had failed to do so. The prosecutor replied that no such offer was outstanding, and that heretofore defendant had rejected all plea bargains in favor of a trial.

After hearing a factual basis for the plea, the court asked defendant if he persisted in pleading guilty. Defendant said he did. The court accepted the guilty plea and continued the matter for sentencing.

On September 9, 1992, before the sentencing hearing, defendant filed his motion to withdraw the guilty plea. The motion alleged, in essence, that defendant had been coerced into pleading guilty because he had gone to the August 10 hearing under the impression that Hodge had worked out a deal that the State had accepted, and that when he arrived in court, he learned that the court would not accept this earlier negotiation. Defendant's motion was accompanied by his attorney's certification that counsel had examined the trial court file and the report of proceedings of the guilty plea hearing, had consulted defendant about the issues raised by the motion, and had made any amendments necessary to the presentation of any defects in the guilty plea proceedings.

On September 24, 1992, the trial court held a hearing on the motion to withdraw the guilty plea. Relying in part on his recollection of the hearing on the guilty plea, the Judge refused to allow defendant to withdraw his guilty plea. The Judge explained that he saw no reason to reject his earlier finding that defendant knowingly, intelligently, and voluntarily decided to plead guilty to attempted robbery.

On October 1, 1992, after a hearing at which defendant did not appear, the court entered its judgment sentencing defendant to 10 years' imprisonment with credit for time served. On October 30, 1992, defendant filed a motion entitled "Motion to Reconsider Sentence and Motion to Reconsider Withdraw [sic] Plea." Despite the title, the motion argued primarily that the sentence was excessive, and it stated only in passing, without any specific factual allegations, that the trial court abused its discretion in refusing to allow defendant to withdraw his guilty plea. Defendant's counsel did not file a new certificate of compliance with Rule 604(d)'s provisions for motions to withdraw guilty pleas.

At a hearing that same day at which defendant was not present, defendant's counsel stated defendant was incorporating into the motion "our grounds for the motion to withdraw the plea which was originally argued and the Court denied." Directly after ...


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