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06/28/96 PEOPLE STATE ILLINOIS v. JEFFERY C. MCKAY

June 28, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JEFFERY C. MCKAY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of De Kalb County. No. 93--CF--185. Honorable Philip L. DiMarzio, Judge, Presiding.

Rehearing Denied August 21, 1996. Released for Publication August 21, 1996.

The Honorable Justice Hutchinson delivered the opinion of the court: McLAREN, P.j., and Inglis, J., concur.

The opinion of the court was delivered by: Hutchinson

JUSTICE HUTCHINSON delivered the opinion of the court:

Defendant, Jeffery McKay, appeals the denial of his motion to reconsider the sentence imposed by the trial court following the entry of defendant's guilty plea to two counts of burglary (720 ILCS 5/19--1(a) (West 1994)). Defendant's guilty plea was entered on January 12, 1994. On March 18, 1994, after hearing the mitigation testimony of defendant and his mother, the trial court imposed two consecutive six-year terms of imprisonment. Defendant filed a timely motion to reconsider sentence (see 145 Ill. 2d R. 604(d)) which was denied on May 6, 1994. This appeal followed.

On appeal, defendant contends he was taking a psychotropic medication during the proceedings below and therefore was entitled to a fitness hearing (see 725 ILCS 5/104--21(a) (West 1994) (now codified, as amended, at 725 ILCS Ann. 5/104--21(a) (Smith-Hurd Supp. 1996))). The State counters we lack jurisdiction to consider defendant's contention because defendant failed to file a motion to withdraw his guilty plea and vacate the judgment before filing his notice of appeal. We note that in its appellate brief the State does not address the merits of defendant's contention. We remand for further factual findings.

The presentence report contains several indications defendant may have been receiving psychotropic medication. The report quoted defendant as describing his mental state as being "'confused, meds problemy [sic] depresion [sic], agigity [sic], feel sucidel [sic].'" Additionally, the report contains the following passage: "defendant stated since age 17, he's been in and out of hospitals, and halfway houses, i.e. Mercy Center, Aurora, Chicago Reed Hospital, Elgin State Hospital, a nursing home. Since November 1991, he's been seeing a psychiatrist for medication monitoring."

The mitigation testimony of defendant's mother, Marsha Early (Early), also indicates defendant might have been receiving psychotropic medication. Early testified defendant suffered from schizophrenia, learning disabilities, borderline personality disorder, and dyslexia. Responding to defense counsel's question concerning whether medication had been prescribed for defendant, Early replied, "He's currently on Stelazine." Early stated Stelazine had been prescribed by a "Dr. Kirts." Defense counsel then asked Early, "How does [defendant's] behavior differ when he's not on his Stelazine?" Early answered, "When he's taking the medication he can think clearly and he is able to communicate with people. When he's not taking it he's--he just doesn't communicate very well."

Defendant also gave testimony indicating he may have been receiving psychotropic medication. Defendant testified, "I think better" when taking the medication. He also stated, "I don't care about too much" when he doesn't take the medication. Defendant replied, "Yes" when asked whether he had been taking his medication since being incarcerated. On cross-examination, defendant stated he had been on medications since childhood and that physicians had changed the types of medications he took from time to time.

We first consider whether we lack jurisdiction over this appeal because defendant failed to file a motion to withdraw his guilty plea and vacate the judgment before filing his notice of appeal. Supreme Court Rule 604(d) 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 reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw his plea of guilty and vacate the judgment." (Emphasis added.) 145 Ill. 2d R. 604(d).

Our supreme court has stated the filing of a Rule 604(d) motion is a "prerequisite" ( People v. Frey, 67 Ill. 2d 77, 85-86, 7 Ill. Dec. 59, 364 N.E.2d 46 (1977)), and a "condition precedent" ( People v. Foster, 171 Ill. 2d 469, 471, 216 Ill. Dec. 565, 665 N.E.2d 823 (1996); People v. Janes, 158 Ill. 2d 27, 32, 34, 196 Ill. Dec. 625, 630 N.E.2d 790 (1994); People v. Wilk, 124 Ill. 2d 93, 105, 107, 124 Ill. Dec. 398, 529 N.E.2d 218 (1988); People v. Stacey, 68 Ill. 2d 261, 267, 12 Ill. Dec. 240, 369 N.E.2d 1254 (1977)), to a defendant's right to appeal following the entry of a guilty plea. Nowhere in Foster, Janes, Wilk, Stacey, or Frey did the supreme court state the filing of a Rule 604(d) motion is required to vest the appellate court with jurisdiction over an appeal from a guilty plea. However, a number of appellate court opinions have construed the "condition precedent" language as indicating the filing of a Rule 604(d) motion is a jurisdictional requirement. See, e.g., People v. Clark, 276 Ill. App. 3d 1002, 1005, 659 N.E.2d 421, 213 Ill. Dec. 505 (1995); People v. Castillo, 243 Ill. App. 3d 818, 820-21, 183 Ill. Dec. 881, 612 N.E.2d 533 (1993). On other occasions, Wilk and its progeny have been construed as standing for the proposition that failure to file a Rule 604(d) motion results in the waiver of a defendant's right to appeal. See, e.g., People v. Cochrane, 257 Ill. App. 3d 1047, 1050, 196 Ill. Dec. 551, 630 N.E.2d 486 (1994); People v. Young, 250 Ill. App. 3d 55, 63, 189 Ill. Dec. 150, 619 N.E.2d 851 (1993).

A Rule 604(d) motion is not jurisdictional in the same sense as a notice of appeal is essential to vest the appellate court with jurisdiction over a civil appeal. Jurisdiction has been defined as a court's authority to "take cognizance of and decide cases" (Black's Law Dictionary 766 (5th ed. 1979)) and "exercise its power with respect to a particular matter" (Ballantine's Law Dictionary 690 (3d ed. 1969)). Notwithstanding its jurisdiction, an appellate court may find an issue is waived for a variety of reasons. See People v. Mahaffey, 166 Ill. 2d 1, 27, 209 Ill. Dec. 607, 651 N.E.2d 1055 (1995) (trial counsel must make a contemporaneous objection to preserve alleged error for appellate review); People v. Enoch, 122 Ill. 2d 176, 185-86, 119 Ill. Dec. 265, 522 N.E.2d 1124 (1988) (asserted error must be included in a post-trial motion); People v. Almo, 108 Ill. 2d 54, 66, 90 Ill. Dec. 885, 483 N.E.2d 203 (1985) (objection to jury instruction is waived if party does not object or tender an alternate instruction). The underlying purpose of waiver is to preserve finite judicial resources by creating an incentive for litigants to bring to trial courts' attention alleged errors, thereby giving trial courts an opportunity to correct their mistakes. See In re Marriage of Schlam, 271 Ill. App. 3d 788, 796-97, 207 Ill. Dec. 889, 648 N.E.2d 345 (1995). As such, the doctrine of waiver is an admonition to the parties, not a limitation on the appellate court's jurisdiction. American Federation of State, County, & Municipal Employees, Council 31 v. County of Cook, 145 Ill. 2d 475, 480, 164 Ill. Dec. 904, 584 N.E.2d 116 (1991).

We hold that Foster, Janes, Wilk, Stacey, and Frey mandate an appellate court find a waiver if a defendant fails to file a Rule 604(d) motion. In Wilk, our supreme court--concerned Rule 604(d) was widely ignored by both courts and attorneys--determined defendants who fail to file a Rule 604(d) motion may not pursue a direct appeal; instead, the Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq. (West 1994)) is the appropriate avenue of relief for such defendants. Wilk, 124 Ill. 2d at 107-09. From this proposition it does not inexorably follow that an appellate court lacks jurisdiction over an appeal taken from a guilty plea in the absence of a Rule 604(d) motion. Rather, the Wilk line of cases and Rule 604(d) represents an instruction from the supreme court requiring the appellate courts to find defendants waive their right to appeal by failing to file a Rule 604(d) motion. Wilk and its progeny, therefore, withdraw from an appellate court not jurisdiction, but rather the decision whether waiver should bar the appeal of a defendant who has not filed a Rule 604(d) motion. See Foster, 171 Ill. 2d at 471 ("though the appellate court may have jurisdiction, Rule 604(d) precludes ...


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