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People v. Zarka-Nevling

November 08, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CONNIE J. ZARKA-NEVLING, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Champaign County No. 98CF191 Honorable John G. Townsend, Judge Presiding.

The opinion of the court was delivered by: Justice Myerscough

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

8 November 1999

Defendant, Connie J. Zarka-Nevling, pleaded guilty to a Class 4 felony of driving under the influence of alcohol (DUI) (625 ILCS 5/11- 501(d)(1)(A) (West Supp. 1997)) in return for the State's promise to dismiss one count of felony driving while license revoked (DWR) (625 ILCS 5/6-303(d) (West Supp. 1997)) and was sentenced to 2½ years in prison. Defendant timely filed a motion to reconsider sentence, but the court denied it. Defendant appeals, arguing that (1) the trial court's post-guilty-plea admonitions were deficient; (2) defense counsel provided ineffective assistance of counsel because he failed to file the proper post-guilty-plea motion; and (3) the court abused its discretion by imposing an excessive prison sentence of 2½ years. We disagree and affirm the trial court.

I. BACKGROUND

Both parties presented evidence in support of their respective recommendations at defendant's sentencing hearing. The State explained that defendant had four prior convictions for DUI from three separate jurisdictions, a conviction for aggravated battery, and prior terms of court supervision and probation that had been revoked. Testimony also revealed that defendant resisted the arresting officer's attempts to help at the scene of her accident. Based on defendant's criminal history, the presentence report, and an alcohol and drug report summary, the State recommended a three-year prison term.

Defense counsel argued, however, that defendant suffered from serious mental health problems that went unaddressed by the court system until recently. Defendant also presented testimony of friends and family members who asserted that defendant had been attending counseling and had not consumed any alcohol since the accident. These witnesses further testified that a jail sentence would be inappropriate and potentially harmful, based on defendant's mental condition. The evidence in mitigation concluded with defendant's assertions that she could not actually recall the incident, due to a possible blackout, but that she was remorseful for her actions.

Based on the evidence presented, the trial court sentenced defendant to 2½ years in prison and, in accordance with Supreme Court Rule 605(b) (145 Ill. 2d R. 605(b)), admonished defendant of her right to appeal.

In September 1998, defendant timely filed a motion to reconsider sentence, in which she contended that her sentence was excessive and inappropriate. In October 1998, the trial court denied that motion. Defendant never moved to withdraw her guilty plea. This appeal followed.

II. ANALYSIS

The parties' briefs present two issues on appeal: (1) whether the trial court violated defendant's right to procedural due process by failing to admonish defendant that she must file a motion to withdraw her guilty plea to challenge her sentence, and (2) whether the trial court abused its discretion by sentencing defendant to 2½ years in prison.

A. Defendant Need Not Withdraw Guilty Plea To Contest Only Her Sentence on Appeal When Pleading Guilty Solely in Exchange for the State's Dismissal of Additional Charges

1. Supreme Court Rules 604(d), 605(b), and Evans Supreme Court Rule 604(d) reads, in pertinent part, as follows:

"(d) Appeal by Defendant From a Judgment Entered Upon a Plea of Guilty. 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. The motion shall be in writing and shall state the grounds therefor. *** The motion shall be heard promptly, and if allowed, the trial court shall modify the sentence or vacate the judgment and permit the defendant to withdraw his plea of guilty and plead anew. *** Upon appeal any issue not raised by the defendant in the motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be deemed waived." (Emphasis added.) 145 Ill. 2d R. 604(d) (emphasized language added April 1, 1992, eff. August 1, 1992).

Prior to the 1992 amendments to Rule 604(d), a defendant could not appeal from a guilty plea unless he first moved in the trial court to withdraw the guilty plea and vacate the judgment, even if he wished to challenge only his sentence. People v. Stacey, 68 Ill. 2d 261, 265, 369 N.E.2d 1254, 1256 (1977); People v. Evans, 174 Ill. 2d 320, 329-30, 673 N.E.2d 244, 249 (1996). The 1992 amendment to Rule 604(d) permitted a defendant who wished to challenge only his sentence without withdrawing his guilty plea to file a motion to that effect.

The supreme court similarly amended Rule 605(b)(2) at the same time as it amended Rule 604(d) to change the trial court's post-guilty-plea admonition to a defendant by explaining that he needed to file within 30 days a written motion asking either to reconsider the sentence or to have the judgment vacated and the guilty plea withdrawn. Supreme Court Rule 605(b) now reads, in pertinent part, as follows:

"(b) On Judgment and Sentence Entered on a Plea of Guilty. In all cases in which a judgment is entered upon a plea of guilty, at the time of imposing sentence, the trial court shall ...


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