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People v. Whitmore

May 04, 2000

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
V.
ANDRE L. WHITMORE,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County. No. 96--CF--2738 Honorable K. Craig Peterson, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Bowman

Defendant, Andre L. Whitmore, appeals the trial court's denial of his motion to withdraw his guilty plea. He argues that (1) the proceedings on his motion did not comply with this court's mandate following his prior appeal, and, alternatively, that (2) he is entitled to an additional day of credit against his sentence. We disagree with his first contention, agree with his second, and affirm the judgment as modified.

Pursuant to a partially negotiated plea agreement, defendant pleaded guilty to one count of armed robbery (720 ILCS 5/18--2(a) (West 1996)). He moved to withdraw his plea. After an evidentiary hearing, the trial court denied the motion and, in accordance with the plea agreement, sentenced defendant to 8 years' imprisonment with credit for 207 days already served. Defendant moved to reconsider his sentence, and the court denied that motion as well.

On appeal, we found error in the trial court's admonishments under Supreme Court Rule 605(b) (145 Ill. 2d R. 605(b)). Therefore, we remanded the cause with directions to provide proper admonishments; allow defendant to file, pursuant to Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)), a new motion to withdraw his guilty plea; and hold a hearing thereon. People v. Whitmore, No. 2--97--0568 (1998) (unpublished order under Supreme Court Rule 23).

On remand, the trial court provided new admonishments, and defendant filed a new motion to withdraw his guilty plea. At the hearing on the motion, the following exchange occurred: "THE COURT: Earlier this week Mr. Braun [defense counsel] *** gave to me the transcripts of Mr. Whitmore's case, including *** the initial Motion to Withdraw his plea of guilty ***. *** With that being said, Mr. Braun, do you have any testimony to present?

MR. BRAUN: Not at this time, Judge. *** I have reviewed with [defendant] the transcript that you made reference to, specifically the whole report of proceedings that [was] prepared for the appeal that was previously filed. *** [B]ased upon my discussions with him we would be willing to *** stipulate that if we were to re-conduct the motion to withdraw the guilty plea *** we would stipulate to the previous testimony *** and the previous arguments ***.

THE COURT: Mr. Yarbrough [assistant State's Attorney]?

MR. YARBROUGH: That's agreed, [Y]our Honor.

THE COURT: All right. Having reviewed the transcripts, the Motion *** is heard and denied. I believe the Defendant was properly admonished of his rights, that he knowingly and intelligently and voluntarily waived his rights to trial, fully understood and acknowledged the advisements that I gave him under [Supreme Court] Rule 402 [(177 Ill. 2d R. 402)] *** and the Motion is heard and denied."

Defendant timely appealed.

Defendant argues that the proceedings on remand were so perfunctory that they failed to comply with our directions to hold a new hearing on a new motion. He claims that our decisions in People v. Porter, 258 Ill. App. 3d 200 (1994), and People v. Oliver, 276 Ill. App. 3d 929 (1995), require us to remand this cause once again. We find both cases distinguishable.

In Porter, we vacated the trial court's denial of the defendant's motion to withdraw his guilty plea because defense counsel had failed to file a certificate of compliance with Rule 604(d). After we remanded the cause for a new motion and hearing, defense counsel told the trial court: " 'I guess I'm asking basically to file [a Rule 604(d) certificate] and then that all the evidence that was heard therein be considered; and again make that motion to withdraw the plea based upon the motion I previously filed.' " Porter, 258 Ill. App. 3d at 202. Counsel then requested the filing of a notice of appeal, as " 'we had a prior hearing and everything was brought forth in that hearing except I failed to file the certificate.' " Porter, 258 Ill. App. 3d at 202.

The court ordered the clerk to file a notice of appeal, and the common-law record stated, " 'Oral motion by Defendant to withdraw plea of guilty. Said motion heard and denied.' " Porter, 258 Ill. App. 3d at 202. On appeal, we held that "this rather perfunctory proceeding was both incomplete and defective" and remanded the cause for another new motion and hearing. Porter, 258 Ill. App. 3d at 202-03.

In Oliver, we again vacated the trial court's denial of the defendant's motion to withdraw her guilty plea because her attorney had failed to file a Rule 604(d) certificate. On remand, counsel filed the certificate and stated that he would stand on the prior motion. The parties stipulated that the testimony presented at the prior hearing would be ...


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