Appeal from the Circuit Court of Cook County Honorable Preston L. Bowie, Judge Presiding.
The opinion of the court was delivered by: Justice O'mara Frossard
Defendant Zachary Hayes entered a nonnegotiated plea of guilty to possession of a controlled substance with intent to deliver within 1,000 feet of a church (No. 99 CR 18569). The trial court sentenced defendant to serve a six-year prison term consecutively to a seven-year sentence imposed after defendant's conviction in a separate case for delivery of a controlled substance (No. 99 CR 26511). Defense counsel filed a motion to reconsider and modify the sentence in the instant case, arguing that the trial court relied on an unconstitutional statute to impose a consecutive sentence. The trial court denied the motion. Defendant, through counsel, filed a notice of appeal without filing a motion to withdraw defendant's guilty plea or a certificate in compliance with Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)). Defendant appeals the denial of his motion to reconsider and challenges the trial court's acceptance of his guilty plea.
Specifically, defendant contends that defense counsel failed to comply with Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)); and that the trial court failed to comply with Supreme Court Rule 605(b) (188 Ill. 2d R. 605(b)); that defendant's plea was not knowing and voluntary because the trial court failed to comply with Supreme Court Rule 402 (177 Ill. 2d R. 402). Our review of the legal questions regarding Supreme Court Rule compliance is de novo. People v. Hall, 198 Ill. 2d 173, 177 (2001). Defendant also contends that his consecutive sentence was unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
I. SUPREME COURT RULE 604(d) CERTIFICATE
Defendant contends, the State concedes, and the record establishes that defendant's trial counsel failed to file a certificate indicating compliance with Rule 604(d), which requires counsel to certify that he consulted with defendant, examined the trial court file and report of proceedings, and made any necessary amendments to defendant's motion to reconsider. The appropriate remedy for the failure to strictly comply with the requirements of Rule 604(d) is a remand to the circuit court for a new hearing in compliance with the rule. People v. Janes, 158 Ill. 2d 27, 33-36 (1994).
II. SUPREME COURT RULE 605(b)
The record establishes that the trial court's admonitions following defendant's guilty plea and sentencing did not comply with Supreme Court Rule 605(b). Rule 605(b) requires the trial court to advise defendant regarding the following: (1) his right to appeal; (2) the necessity of filing a timely written motion to have the trial court reconsider the sentence or to have the judgment vacated and for leave to withdraw the guilty plea; (3) the possible consequences if such a motion is granted; and (4) the waiver of any issues not raised in the motion. Strict compliance with Rule 605(b) is required, and when a defendant is not given Rule 605(b) admonitions and subsequently fails to file a motion to withdraw his guilty plea, the appropriate remedy is a remand to the circuit court for proceedings consistent with Rule 605(b).
Specifically, Supreme Court Rule 605(b) requires the trial judge to advise the defendant substantially as follows:
"(1) that the defendant has a right to appeal;
(2) that prior to taking an appeal the defendant must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the trial court reconsider the sentence or to have the judgment vacated and for leave to withdraw the plea of guilty, setting forth the grounds for the motion;
(3) that if the motion is allowed, the sentence will be modified or the plea of guilty, sentence and judgment will be vacated and a trial date will be set on the charges to which the plea of guilty was made;
(4) that upon the request of the State any charges that may have been dismissed as a part of a plea agreement will be reinstated and will also be set for trial;
(5) that if the defendant is indigent, a copy of the transcript of the proceedings at the time of the defendant's plea of guilty and sentence will be provided without cost to the defendant and counsel will be appointed to assist the defendant with the preparation of the motions; and
(6) that in any appeal taken from the judgment on the plea of guilty any issue or claim of error not raised in the motion to reconsider the sentence or to vacate the judgment and to withdraw the plea of ...