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09/16/97 PEOPLE STATE ILLINOIS v. JOHNNY E. ROWE

September 16, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOHNNY E. ROWE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 94--CF--2916. Honorable Charles F. Scott, Judge, Presiding.

Released for Publication October 17, 1997.

The Honorable Justice Hutchinson delivered the opinion of the court. Bowman and Doyle, JJ., concur.

The opinion of the court was delivered by: Hutchinson

The Honorable Justice HUTCHINSON delivered the opinion of the court:

Defendant, Johnny E. Rowe, appeals his sentence, alleging various errors, including the ineffective assistance of counsel. We vacate the trial court's order striking defendant's pro se motion to reduce his sentence and remand the cause for further proceedings.

Defendant was charged by information with the offense of burglary of a vehicle (720 ILCS 5/19--1(a) (West 1994)). A jury found defendant guilty of the offense on March 7, 1995. The trial court entered judgment on the verdict, ordered a presentence investigation (PSI) report, an alcohol and substance abuse evaluation, and an intensive probation evaluation. Julie Koerner, the assistant public defender who was defendant's trial counsel, filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial. A hearing was held on April 25, 1995, in which the trial court denied the posttrial motion and sentenced defendant to five years' imprisonment. Defendant's notice of appeal was filed by the clerk of the circuit court on the same date.

The record reveals that, after the trial, in March 1995, defendant pro se and Koerner moved for the appointment of counsel other than the public defender. Defendant alleged the ineffective assistance of trial counsel and claimed certain witnesses had not been called. The trial court denied defendant's motion in part, but agreed to appoint attorney Alex Rafferty for sentencing purposes and to address any allegations of the ineffective assistance of trial counsel; Koerner remained appointed for any other posttrial motion.

At the April 25 hearing, Rafferty reported the results of his investigation to the court and stated he found no evidence of ineffective assistance of defendant's trial counsel, Koerner. The trial court denied defendant's oral motion to find trial counsel ineffective. After further argument by attorney Koerner, the trial court also denied defendant's written posttrial motion. During the sentencing portion of the hearing, attorney Rafferty moved for a continuance to complete the intensive probation interview. The trial court denied the motion, indicating it would not delay the proceeding for this reason.

The court then considered the factors in aggravation and mitigation. It noted, among other things, defendant's previous violations of probation stemming from prior battery offenses and his failure to complete treatment for level III alcohol abuse. Because defendant denied his problems and failed to take responsibility for his actions, the court did not find defendant amenable to further treatment. The PSI report recommended imprisonment, but the report also stated that, if the court should elect to sentence defendant to probation, defendant should be subject to periodic imprisonment, along with certain conditions, and should be released only for employment or substance abuse treatment. The court sentenced defendant to five years' imprisonment with credit for time served.

On May 22, 1995, defendant filed a pro se motion to reduce his sentence (730 ILCS 5/5--8--1(c) (West 1994)). The motion was accompanied by defendant's affidavit and a notice of motion. On May 23, 1995, the trial court entered an order striking defendant's motion, stating that it lacked jurisdiction because of defendant's previously filed notice of appeal.

On appeal, defendant argues that counsel appointed for his sentencing was ineffective for failing to file any motion to reduce his sentence of imprisonment; that the waiver rule should not preclude defendant from asserting that the trial court erred in refusing to allow the completion of an application for intensive probation during the PSI and relied on an incomplete report; and that, in sentencing him to imprisonment, the court erred in failing to make either of the statutorily required findings necessary to deny probation, where he was convicted of a nonviolent offense and could have been eligible for intensive probation. Those findings required by statute are that (1) the defendant's imprisonment or periodic imprisonment is necessary for the protection of the public or (2) probation or conditional discharge would deprecate the seriousness of the offender's conduct and would be inconsistent with the ends of justice. 730 ILCS 5/5--6--1(a) (West 1994).

Defendant also claims, in effect, that he has been prejudiced in raising his sentencing issues by the failure of counsel to file a postsentencing motion as provided by section 5--8--1(c) of the Unified Code of Corrections (the Code) (730 ILCS 5/5--8--1(c) (West 1994)). People v. Moncrief, 276 Ill. App. 3d 533, 213 Ill. Dec. 476, 659 N.E.2d 106 (1995) (statutory amendment subsequent to People v. Lewis, 158 Ill. 2d 386, 199 Ill. Dec. 664, 634 N.E.2d 717 (1994), appears to require written motion to preserve sentencing issues or waiver rule may be applied absent plain error); see People v. Beals, 162 Ill. 2d 497, 510, 205 Ill. Dec. 498, 643 N.E.2d 789 (1994) (sentencing issue waived); People v. Reed, 282 Ill. App. 3d 278, 217 Ill. Dec. 866, 668 N.E.2d 51 (1996) (citing waiver rule of Moncrief with approval), appeal allowed, 168 Ill. 2d 616 (1996).

Given the procedural posture of this case, we believe it would be improper to address the merits of defendant's sentencing issues. Instead, we conclude that the trial court erred in refusing to consider defendant's pro se motion to reduce his sentence because of its misperception that it did not have jurisdiction to consider the motion where a notice of appeal had already been filed. We remand the cause for further proceedings.

Ordinarily, the filing of a notice of appeal divests the trial court of jurisdiction to enter any order involving a matter of substance and causes the jurisdiction of the appellate court to attach instanter. People v. Curry, 167 Ill. App. 3d 146, 149, 117 Ill. Dec. 633, 520 N.E.2d 984 (1988). However, this court has held that the timely filing of a postsentencing motion (i.e., within 30 days of the judgment) acts as an implicit motion to dismiss the notice of appeal and renders the notice of appeal ineffectual. People v. Hook, 248 Ill. App. 3d 16, 18, 185 Ill. Dec. 711, 615 N.E.2d 6 (1993), relying in part on People v. Giles, 230 Ill. App. 3d 730, 172 Ill. Dec. 774, 596 N.E.2d 53 (1992) (postguilty-plea motions rendered notice of appeal ineffectual and did not deprive trial court of jurisdiction to consider and rule on motions; cause remanded for trial court to rule on pending motions); accord People v. Richmond, 278 Ill. App. 3d 1042, 1046-47, 215 Ill. Dec. 576, 663 N.E.2d 1090 (1996) (rule ...


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