Appeal from the Circuit Court of Cook County. No. 97 CR 15781 Honorable John Moran, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Hall
The defendant, Anthony Johnson, appeals from the dismissal of his petition for relief pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 1998)). The circuit court rejected the defendant's claim that he was convicted under a statute later declared unconstitutional as violative of the single subject rule provisions of the Illinois Constitution of 1970 and dismissed the petition as frivolous and without merit. On appeal, the defendant has abandoned his original constitutional claim and now contends that his sentence is unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
The defendant pleaded guilty to delivery of a controlled substance (720 ILCS 570/401(d) (West 1996)). On September 10, 1997, he was sentenced to three years' probation, which included a mandatory drug treatment program. On July 15, 1998, the defendant "pleaded guilty" to violating his probation, and the circuit court imposed a sentence of nine years' imprisonment in the Department of Corrections.
On January 4, 2000, the defendant filed his post-conviction petition and a motion to withdraw his guilty plea. On January 28, 2000, the circuit court denied his motion to withdraw his guilty plea and denied his post-conviction petition as frivolous and without merit. On February 23, 2000, the defendant filed a motion to review his sentence. Leave to file the motion, which the circuit court treated as a motion to reconsider sentence, was denied on March 1, 2000.
The defendant filed his notice of appeal on March 30, 2000.
On appeal, the defendant raises the following issues: (1) whether Apprendi requires that the defendant be resentenced as a Class 2 offender and (2) whether the Illinois Constitution requires that the defendant be resentenced as a Class 2 offender. At oral argument in this case, this court sua sponte raised an issue as to whether the defendant had been properly admonished pursuant to Supreme Court Rule 605(b) (188 Ill. 2d R. 605(b)) at the time he entered his original plea of guilty. The defendant had not previously raised this issue. The parties were ordered to file supplemental briefs on this issue. Because we find that issue is dispositive of the appeal in this case, we need only address that issue.
Whether This Case Must Be Remanded for the Defendant to be Admonished Pursuant to Rule 605(b)
Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)) requires a defendant who wishes to appeal from a conviction following a guilty plea to first file in the circuit court a written motion to withdraw his plea of guilty or to reconsider sentence. A necessary antecedent, however, is that the defendant be given the admonitions prescribed by Rule 605(b) to advise him of those requirements. People v. Jamison, 181 Ill. 2d 24, 29, 690 N.E.2d 995, 998 (1998).
The State concedes that the trial court never advised the defendant as to his appellate rights but argues that the circuit court did not "affirmatively mis-inform" the defendant as to those rights. The State further argues that the defendant waived any issue as to the lack of admonishments by failing to raise the issue until this court raised it at oral argument. While acknowledging that the waiver rule is not absolute, the State maintains that the defendant must fulfill the "cause and prejudice" test in order for his procedurally defaulted claim to be considered. See People v. Owens, 129 Ill. 2d 303, 544 N.E.2d 276 (1989). Finally, the State maintains that the failure to give the admonishments is not a recognizable claim under the Act. We find the State's arguments unpersuasive in toto.
A defendant may attack the judgment at any time when the trial court has failed to give the proper admonishments. People v. Winston, 316 Ill. App. 3d 618, 620, 737 N.E.2d 304, 306 (2000), citing Jamison, 181 Ill. 2d 24, 690 N.E.2d 995. In Winston, the court rejected the State's argument that the defendant could not collaterally attack her pleas of guilty in an appeal from orders entered in her cases revoking and extending her probation. The court held that where a trial court fails to properly admonish a defendant as to the 30-day limitation for filing a motion for leave to withdraw a guilty plea, the finality of the case is always in question. Winston, 316 Ill. App. 3d at 620, 737 N.E.2d at 306.
Since the defendant may attack the judgment at any time when he has not been properly admonished pursuant to Rule 605(b), the defendant's claim has not been "procedurally defaulted," and therefore, there is no issue of waiver in this case. As to the State's attempted distinction between misinforming and failing to inform, the trial court in Winston failed to advise the defendant that there was a 30-day limitation for filing a motion to withdraw her plea of guilty. While the State suggests that, in all likelihood, the defendant would not have moved to vacate his guilty plea because he received probation, the defendant in Winston likewise was originally sentenced to probation, as well as fines and a 90-day jail sentence. *fn1
Finally, the State argues that the failure to admonish the defendant as to his rights under Rule 605(b) cannot be the basis for relief under the Act. *fn2 However, in this case, the defendant filed a separate motion to withdraw his guilty in addition to his petition for post-conviction relief.
In any event, in People v. Bates, this court held that a defendant stated the gist of a constitutional claim where the trial court failed to inform him that, as an alternative to filing a motion to vacate his plea of guilty, the defendant could have chosen to file a motion to reconsider only ...