The opinion of the court was delivered by: Justice Rarick
Docket No. 94721-Agenda 9-September 2003.
The issue in this case is whether a criminal defendant who has pleaded guilty may challenge the validity of her sentence on appeal where she did not file the postjudgment motion required by Supreme Court Rule 604 (145 Ill. 2d R. 604) until after the circuit court's subject matter jurisdiction had expired. For the reasons that follow, we hold that she may not.
The defendant, Eleanor Flowers, was indicted in Will County in November of 1998 on seven counts of forgery (720 ILCS 5/17-3(a)(2) (West 1998)). The indictments were issued in three separate cases, but the proceedings were subsequently heard and decided together. Following negotiations with the State, Flowers agreed to plead guilty on all counts. Under the terms of the plea bargain, the State agreed to recommend that she receive concurrent four-year sentences on each of the seven charges.
A hearing on Flowers' guilty plea was conducted by the circuit court pursuant to Supreme Court Rule 402 (177 Ill. 2d R. 402). At that hearing, the trial judge acknowledged the agreement of the parties concerning the length of the sentence, but indicated that it was not bound by the State's recommendation. The court explained the nature of the charges to Flowers, set forth the rights she was waiving by pleading guilty, and determined that her plea was voluntary and that there was a factual basis for it. The court also advised Flowers of potential penalties she faced, including a maximum of 10 years' imprisonment in each of the three cases in which she was charged, with the terms to be served consecutively; a fine of up to $25,000 in each of the three cases; and one year of mandatory supervised release in each case. The judge further noted that the minimum penalty Flowers faced would be no jail time, a judgment for court costs, and three sentences of conditional discharge. Flowers was not cautioned that she might be required to pay restitution.
At the conclusion of the hearing, the circuit court accepted Flowers' plea of guilty and set the matter for sentencing. A presentence report was prepared and filed. The sentencing hearing was conducted in July of 1999. Flowers appeared and was represented by counsel. In the course of the hearing, the circuit court rejected the concurrent four-year terms of imprisonment called for by the parties' plea agreement. Instead, it sentenced Flowers to concurrent five-year terms of imprisonment. Those terms, while concurrent with each other, were to be served consecutively to other sentences Flowers had already received in Cook and Lake Counties. Additionally, the court ordered her to pay restitution in the amount of $5,446.00 plus court costs. To insure that the restitution and costs were paid, the court authorized the Department of Corrections (DOC) to withhold 50% of her prison income.
After imposing sentence, the circuit court advised Flowers of her right to appeal. The explanation given by the court was that before Flowers could take an appeal, she would first be required to file a written motion to withdraw her guilty plea and vacate the sentence. The court admonished Flowers that a motion to withdraw the plea and vacate the sentence had to be filed within 30 days. The court also advised Flowers that she had the right to an attorney to assist her with the appeal and that if she could not afford to pay a lawyer, a lawyer would be appointed to represent her.
Flowers was represented by counsel when the court made the foregoing remarks. Neither she nor her attorney filed motions to withdraw the guilty plea and vacate the judgment. Instead, Flowers proceeded directly to filing notices of appeal from the circuit court's judgment. The appeals were filed by her, appearing pro se, on August 9, 1999. Nine days later, the appellate defender was appointed to represent her.
Following appointment of the appellate defender, a motion was filed on Flowers' behalf to have her appeals dismissed. The basis for that motion was that her appeal was fatally defective because she had failed to comply with Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)). The version of the rule then in effect provided:
"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 the plea of guilty and vacate the judgment." 145 Ill. 2d R. 604(d).
There being no dispute that Flowers had neither moved for reconsideration of her sentence, nor moved to withdraw her guilty plea and vacate the sentence, the motion to dismiss was granted by appellate court. The court's order was filed October 13, 1999. Its mandate issued November 15, 1999. Meanwhile, on October 7, 1999, Flowers filed a pro se petition in the circuit court of Will County seeking relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1998). As grounds for that petition, Flowers alleged that she had not had an adequate opportunity to confer with her lawyer regarding her sentence, was "not given a chance to argue sentence," and was denied effective assistance of counsel when her attorney failed to move for reconsideration after the trial court imposed a sentence in excess of what she thought she should receive.
On Flowers' motion, the circuit judge presiding over the post-conviction proceedings granted permission for her to appear and defend as a poor person. It also appointed the public defender to represent her. See 725 ILCS 5/122-4 (West 1998). Despite the appointment, no attorney was actually assigned to Flowers' case until the end of August 2000, and the matter lay dormant for nearly a year.
At the end of November 2000, after Flowers' post-conviction petition had been reassigned to a different public defender, the new lawyer filed a motion pursuant to Supreme Court Rule 604(d) seeking reconsideration of the sentences imposed by the circuit court in July of 1999 in the three criminal cases. That motion complained that the sentencing judge had given no reason for refusing to follow the sentence recommended in the parties' plea agreement and that Flowers "would not have entered into the plea had she known what type of sentence she would have received."
The motion to reconsider sentence was heard and rejected by the circuit court. Proceeding pro se, Flowers then filed a second set of notices of appeal with the appellate court. With that filing, Flowers' court-appointed attorney withdrew her post-conviction petition and filed a certificate under Supreme Court Rule 604(d) stating that he had consulted with her to ascertain her contentions of error, examined the trial court file and report of proceedings of the plea of guilty, and made whatever amendments to the motion were necessary for adequate presentation of any defects in the proceedings. A few days later, on January 29, 2001, Flowers filed her third and final set of notices of appeal. According to those notices, Flowers was appealing from the denial of what she styled her "Motion to Reconsider-Post Conviction Petition." The appellate defender was appointed to represent her, and the matter proceeded before the appellate court. Because Flowers' counsel had withdrawn her claims for relief under the Post-Conviction Hearing Act, the appellate court regarded her appeal as directed solely toward the circuit court's denial of her motion for reconsideration of her sentences. Flowers challenged the denial of the motion to reconsider on two grounds. First, she contended that because the circuit court had not warned her when she pleaded guilty that she might be required to pay restitution, the portion of her sentence imposing a restitution requirement ...