Appeal from Circuit Court of Champaign County No. 99CF1219 Honorable John R. Kennedy, Judge Presiding.
The opinion of the court was delivered by: Justice Myerscough
In September 2004, defendant, Stephen Petty, filed an amended post-conviction petition. In March 2005, following an evidentiary hearing, the trial court denied the petition. On appeal, defendant argues the trial court's denial of his post-conviction petition was manifestly erroneous because his counsel failed to file a Rule 604(d) certificate (188 Ill. 2d R. 604(d)) prior to the hearing on his first motion to withdraw his guilty plea. We affirm.
In August 1999, a grand jury indicted defendant on two counts of unlawful delivery of a controlled substance (cocaine) in an amount more than 15 but less than 100 grams, both Class X felonies (720 ILCS 570/401(a)(2)(A) (West 1998)). In November 1999, the State also charged defendant with a separate count of unlawful delivery of a controlled substance (cocaine) in an amount more than 1 but less than 15 grams, a Class 1 felony (720 ILCS 570/401(c)(2) (West 1998)).
In November 1999, defendant entered into a plea agreement with the State whereby defendant agreed to plead guilty to the Class 1 felony of unlawful delivery of a controlled substance (5 to 15 grams), in exchange for the State's promise to dismiss the two-count indictment for the separate Class X felony charges of unlawful delivery of a controlled substance (15 to 100 grams) and recommend a sentencing cap of 11 1/2 years. The trial court accepted defendant's plea, finding that defendant entered into it knowingly and voluntarily.
In November 1999, defendant sent to the trial judge certain pro se documents, including a letter indicating he did not wish to plead guilty. Thereafter, defendant's attorney, Edwin K. Piraino, filed a motion to withdraw the guilty plea or, in the alternative, a motion to reconsider the sentence. Counsel also filed a Rule 604(d) certificate.
At the December 1, 1999, hearing on the motion, defendant withdrew his motion to withdraw his guilty plea. On December 10, 1999, the trial court sentenced defendant to an 11 1/2-year prison term within the State's recommended sentencing cap.
Thereafter, defendant filed a pro se motion to withdraw his guilty plea. On January 14, 2000, attorney Piraino filed a motion to reconsider the sentence or, in the alternative, a motion to withdraw the guilty plea. Counsel did not file a Rule 604(d) certificate.
In February 2000, the trial court held a hearing on defendant's motion to withdraw his guilty plea. The State confessed the motion, stating that the agreed-upon 11 1/2-year sentencing cap was too lenient. The court granted defendant's motion to withdraw his guilty plea and informed defendant that the State would reinstate the two previously dismissed Class X charges. In February 2000, Piraino withdrew as defendant's counsel, and Malcolm Barnes was appointed as defendant's counsel.
On June 14, 2000, the day of defendant's trial, defendant entered a second negotiated guilty plea, under which the State agreed to (1) dismiss count II of the indictment and (2) forego recommending a discretionary doubling of defendant's sentence, which would have made defendant eligible for a 30- to 60-year prison term (720 ILCS 570/408 (West 1998)). The trial court accepted the negotiated plea.
Prior to sentencing, defendant filed a motion to reinstate his first plea agreement and the respective 11 1/2-year sentence. The trial court denied the motion.
At the July 7, 2000, sentencing hearing, the trial court noted that defendant had filed pro se motions to withdraw his guilty plea and to dismiss the indictments and that defense counsel had filed a supplemental motion to reinstate defendant's original plea and sentence. The court found defendant's pro se motion to withdraw his guilty plea premature since sentencing had not yet occurred. The court also found defendant's motion to dismiss the indictments meritless. The court sentenced defendant to a 30-year prison sentence in accordance with defendant's plea agreement.
Following the appointment of new counsel and the denial of defendant's motion for reconsideration of his sentence and motion to vacate the second plea, defendant filed a direct appeal. Defendant argued (1) he received ineffective assistance of counsel at the time of his second plea agreement, (2) the trial court failed to admonish him of the consequences of withdrawing his first guilty plea, and (3) the State failed to include his prior convictions in the charging instrument as a basis for seeking an enhanced sentence. This court rejected defendant's ...