Appeal from Circuit Court of Moultrie County No. 98CF15 Honorable Frank W. Lincoln, Judge Presiding.
The opinion of the court was delivered by: Justice McCULLOUGH
On July 31, 1998, defendant John D. Harden entered a negotiated plea of guilty to a charge of possession with intent to deliver 15 grams or more, but not more than 100 grams, of a substance containing cocaine. 720 ILCS 570/401(a)(2)(A) (West 1996). The charges were brought following a controlled buy from defendant. Pursuant to the plea agreement, the State nol-prossed charges of unlawful possession of 15 grams or more, but not more than 100 grams, of a substance containing cocaine (720 ILCS 570/402(a)(2)(A) (West 1996)), and unlawful delivery of 1 gram or more, but less than 15 grams, of a substance containing cocaine (720 ILCS 570/401(c)(2) (West 1996)). The State also agreed to cap its sentencing recommendation at 20 years' imprisonment. The trial court imposed a 16-year sentence. Defendant filed a motion for reconsideration of sentence, which the trial court denied.
This court affirmed defendant's convictions and sentence on appeal. People v. Harden, 311 Ill. App. 3d 406, 724 N.E.2d 566 (2000). Defendant filed a petition for leave to appeal. The Supreme Court of Illinois denied that petition; however, in the exercise of that court's supervisory authority, it vacated this court's judgment and remanded for reconsideration in light of its decision in People v. Diaz, 192 Ill. 2d 211, 735 N.E.2d 605 (2000). People v. Harden, 191 Ill. 2d 545, 735 N.E.2d 1001 (2000) (nonprecedential supervisory order). We now reconsider our prior decision in light of Diaz and affirm.
At the guilty plea hearing, the prosecutor indicated that the sum of $644, which was the subject of a civil forfeiture proceeding against defendant, would be used to pay any fines, costs, and other assessments the trial court may impose at sentencing. At the September 4, 1998, sentencing hearing, the prosecutor advised the trial court that defendant had agreed that the money from the forfeiture proceeding would first be applied to defendant's restitution obligation to the East Central Illinois Task Force (Task Force). Defense counsel confirmed this agreement. Following presentation of evidence, arguments of counsel, and a statement in allocution by defendant, the trial court imposed a sentence of 16 years in prison. In addition, the court imposed a $3,000 statutory drug assessment, a $50 state drug lab fee, a $2,520 street-value fine, and $250 restitution to the Task Force for "buy money." In advising defendant of his appeal rights, the trial court stated:
"Now, [defendant], it's my obligation to advise you of your right to an appeal. In order to perfect that right you are required to file in the office of the Clerk of this Court, within 30 days of this date, either one, a [m]otion for [l]eave to [w]ithdraw [y]our [p]lea of [g]uilty, and instead plead not guilty, if the judgment, conviction[,] and sentence of this court are being contested, or, two, a [m]otion for the [c]court to reconsider the sentence which has been imposed upon you, if only the sentence is being contested.
In either type of [m]otion, you're required to specify the ground or grounds whereby you believe some error or errors have been committed that resulted in your conviction, the judgment and sentence of this court. And any error or claim of error that's not raised in either of such [m]otions, is waived, and you may not later in the appellate process come back and claim it."
Defendant's motion and supplemental motion to reconsider sentence were denied by the trial court at a hearing on January 22, 1999. Defendant appealed.
In his appeal, defendant argues (1) that the prison sentence imposed upon him is excessive and (2) the East Central Illinois Task Force is not a victim within the meaning of the restitution statute (730 ILCS 5/5-5-6 (West 1996)). Initially, however, appellate counsel acknowledges in defendant's initial brief that defendant's appeal is subject to dismissal, pursuant to our supreme court's recent decision in People v. Linder, 186 Ill. 2d 67, 708 N.E.2d 1169 (1999). In that consolidated case, the court decided that the rule announced in People v. Evans, 174 Ill. 2d 320, 332, 673 N.E.2d 244, 250 (1996), applied to negotiated guilty pleas in which the State agreed to a cap on its sentencing recommendation. Thus, the two defendants in Linder were not entitled to appeal their sentences because they had not first sought in the trial court to withdraw their guilty pleas and vacate the judgments. Linder, 186 Ill. 2d at 75, 708 N.E.2d at 1173. Linder also held that where a defendant has failed to comply with the motion requirements of Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)), the appellate court must dismiss the appeal. Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1173.
The Linder decision evolved from the supreme court's decision in Evans, where it was held that a defendant who enters a negotiated guilty plea may not challenge his sentence by filing a motion to reconsider but, rather, must move to withdraw his guilty plea and vacate the judgment and show that granting the motion is necessary to correct a manifest injustice. The provisions of Rule 604(d) regarding motions to reconsider sentences apply only to open guilty pleas (Evans, 174 Ill. 2d at 332, 673 N.E.2d at 250) and to those negotiated as to charge only (People v. Lumzy, 191 Ill. 2d 182, 187, 730 N.E.2d 20, 22-23 (2000)).
Defendant argues that Linder should not be applied to his case because the trial court failed to admonish him as to the "proper" post-sentencing motion to file, i.e., advise him which motion to file consistent with case law. Although defendant's guilty plea was not fully negotiated, it was a negotiated plea in two respects. First, the State agreed to dismiss two other counts of the information in return for defendant's guilty plea to the one charge, and, second, the State agreed to cap its sentencing recommendation at 20 years in prison. Under these circumstances, defendant's guilty plea was subject to the qualifications of Rule 604(d) motion requirements set forth in Evans and Linder. Thus, defendant is precluded from raising on appeal the issue of whether his sentence was excessive because he did not file in the trial court a motion to withdraw his plea and vacate the judgment.
In support of his contention that this issue should be considered, defendant cites several cases from other districts of the appellate court that have remanded for the giving of proper admonitions in situations such as the one here. We have reviewed People v. Knowles, 304 Ill. App. 3d 472, 710 N.E.2d 1238 (1999), vacated & remanded with directions, 189 Ill. 2d 670, 730 N.E.2d 52 (2000) (nonprecedential supervisory order), aff'd on remand, 315 Ill. App. 3d 600, 734 N.E.2d 184 (2000); People v. Didier, 306 Ill. App. 3d 803, 715 N.E.2d 321 (1999), appeal denied, 186 Ill. 2d 575, 723 N.E.2d 1165 (1999); People v. Wright, 311 Ill. App. 3d 1042, 725 N.E.2d 811 (2000), appeal denied, 191 Ill. 2d 558, 738 N.E.2d 935 (2000); People v. Doguet, 307 Ill. App. 3d 1, 716 N.E.2d 818 (1999), appeal denied, 191 Ill. 2d 541, 738 N.E.2d 930 (2000); and People v. Foster, 308 Ill. App. 3d 286, 719 N.E.2d 1163 (1999), appeal denied, 191 Ill. 2d 543, 738 N.E.2d 931 (2000).
Rule 605(b) requires trial courts to admonish defendants of their right to appeal following entry of a guilty plea. When the trial court admonished defendant here, Rule 605(b) required, among other requirements, that a defendant must be admonished that (1) he has a right to appeal; (2) prior to taking an appeal, he must file in the trial court within 30 days of the date on which sentence is imposed a written motion to reconsider the sentence or to have the judgment vacated and for leave to withdraw his guilty plea; and (3) in any appeal taken from the judgment on the guilty plea, any issue or claim of error not raised in the motion to reconsider sentence or to vacate the judgment and withdraw the guilty plea shall be deemed waived. 145 Ill. 2d R. 605(b).
Supreme Court Rule 604(d) provided that no appeal from a judgment entered upon a plea of guilty may be taken unless the defendant, within 30 days of the date on which sentence was imposed, files in the trial court either a motion to withdraw the guilty plea or a motion to reconsider sentence. The motion must be in writing and state the grounds therefor. Upon appeal, any issue not raised in the post-sentencing motion shall be deemed waived. 145 Ill. 2d R. 604(d).
Where a defendant fails to strictly comply with Rule 604(d), any appeal must be dismissed by the reviewing court. People v. Foster, 171 Ill. 2d 469, 471, 665 N.E.2d 823, 824 (1996). However, a necessary antecedent to requiring strict compliance by a defendant with Rule 604(d) is that the defendant be given the admonitions ...