Appeal from the Circuit Court of Cook County. The Honorable William G. Lacy, Judge Presiding. 07 CR 8322
The opinion of the court was delivered by: Justice Toomin
JUSTICE TOOMIN delivered the opinion of the court: Here, we must determine whether prejudice inuring from purported inadequate guilty plea admonishments was compounded by the trial court's ex parte denial of defendant's motion to reconsider sentence, thereby providing the basis for vacature of the plea. Following a plea of guilty to the offense of failure to support, defendant, Lee Wigod, was sentenced to serve 18 months' imprisonment and ordered to pay restitution totaling $85,802. Defendant's pro se motions to reduce his sentence and correct the restitution order were denied.
He now appeals contending: (1) he was inadequately admonished of the consequences of his plea and his appeal rights pursuant to Supreme Court Rules 604 and 605 (210 Ill. 2d Rs. 604, 605); (2) the denial of his postplea motions violated Supreme Court Rule 604 (210 Ill. 2d R.604); (3) the scope of the restitution order was beyond the authority of the trial court; and (4) the restitution order is inadequate. Although defendant's opening brief asserted that the enactment under which he was charged violated the "single subject rule," he has since abandoned that contention. For the reasons that follow, we vacate the judgment of the circuit court and remand for further proceedings.
Defendant was charged by indictment with a single count of the offense of failure to support, pursuant to the Non-Support Punishment Act (750 ILCS 16/15(a)(4) (West 2006)). The indictment alleged defendant:
"[W]illfully failed to pay a support obligation required under a court *** order for support and the obligation has remained unpaid for a period longer than one year, or is in arrears in an amount greater than twenty thousand dollars ($20,000) and he has the ability to provide support, and said offense is based upon a series of such acts performed at different times by [defendant]."
The instant prosecution initially proceeded to a bench trial on December 17, 2007. After a single witness testified, the matter was continued. On January 28, 2008, defendant's counsel were granted leave to withdraw and substitute counsel entered an appearance on defendant's behalf. In turn, the matter was continued from time to time, until August 5, 2008, when defendant elected to enter a blind plea of guilty.
After ascertaining defendant's desire to change his plea, the trial judge stated:
"You are charged in this case with a crime of failure to support. That is a Class 4 felony. What that means is when you plead guilty, then it will be up to me to sentence you anywhere from probation up to time in the penitentiary, anywhere from a minimum of one year up to a maximum of three years, and that would carry one year of mandatory supervised release which is what they used to call parole." Defendant indicated he understood and changed his plea to that of guilty. The trial judge then admonished defendant as to the rights he was giving up by changing his plea. The judge added: "And you understand that I have the realm to sentence you to any of those possible sentences, do you understand that." (Emphasis added.) Defendant indicated that he did.
Thereafter, the State offered the following factual basis for the plea. Defendant and Susan Wigod-Giffen married in 1986. A daughter, Carley, was born from this union in 1990. Defendant and Susan separated in 1993. The separation agreement awarded custody of Carley to Susan and obligated defendant to pay $125 per week in child support. Thereafter, on December 29, 1995, a judgment of dissolution of marriage was entered. A marital settlement agreement was incorporated into the judgment, providing, inter alia, that Susan would retain custody of Carley, that defendant was to pay $150 per week in child support, along with health care and daycare costs, and repayment of $5,000 defendant withdrew from Carley's bank account. Because defendant was already $2,716 in arrears at the time of the time of the dissolution, by operation of the initial separation agreement, he was ordered to pay $237.65 per month until satisfied.
Neither the arrearage nor the $5,000 repayment was made. On September 10, 2002, an order was entered reflecting an arrearage totaling $48,300. Defendant was then held in contempt of court. A modified order was entered on August 12, 2003, based upon defendant's claimed loss of income, reducing his obligation to $234 per month, payable in fortnightly installments of $117. On July 7, 2005, an order was entered reflecting a child support arrearage totaling $101,928, as well as amounts due and owing for Carley's daycare. Defendant continually failed to pay and did so for a period exceeding one year.
According to the State, documentary evidence would further demonstrate an ability to pay as shown, inter alia, by bank records reflecting deposits of $30,000 into defendant's individual bank account during a period of time when he claimed only $3,000 in income. Additionally, the evidence would show defendant received two $5,000 cash loans from his co-worker, Robert Kenig. Yet, according to the State, none of this money was used to reduce his outstanding child support obligation. In 1996, defendant married Lori (Weedsman) Wigod. During their union, two condominiums were purchased in Chicago for approximately $430,000 and $971,000. Additionally, they owned two cars, took vacations annually, and went on cruises. During 2004 and 2005, defendant was employed in a position where he earned a salary, together with commissions. Defendant persisted in the nonpayment of his obligations.
Additionally, the State represented that the willful character of defendant's conduct could be demonstrated in several ways. Defendant had undertaken numerous efforts and tactics to delay the proceedings in the civil court, including filing a variety of frivolous and baseless motions. Furthermore, he filed for bankruptcy on so many occasions that the United States Bankruptcy Court barred him from further petitions without first obtaining leave of court. Moreover, defendant's ex-wife, Susan, would testify that in 1993, at the time of the initial separation, defendant stated: "You will regret this decision. I will drag you through the courts, and you will never see a dime."
Defense counsel stipulated to the majority of the State's factual basis. However, defendant refused to stipulate to the full measure of the arrearage as described by the prosecutor. The State agreed that the actual amount owed required further discussion and ultimate resolution by the parties. Nevertheless, defense counsel stipulated that the original judgment "was for $101,000 three years ago."
The trial court accepted the stipulation and upon receiving the plea added: "I find the defendant does understand the nature of the charge against him and the possible penalties, that this plea has been made freely and voluntarily and that a factual basis does exist for the plea; therefore, the plea will be accepted. There will be a finding of guilty and judgment will be entered on that finding.
Sir, even though you have pled guilty in this case, you do have certain appellate rights; but in order for you to exercise those rights, within 30 days you must file with this court a motion asking the court to withdraw your plea of guilty. That motion must be in writing and as I stated, filed within 30 days of today's date.
In that motion you must put every claim of error or any issue or claim of error regarding the plea of guilty or this proceeding and any aspect of this hearing. If you leave anything out and the motion is denied, that issue will be deemed waived on appeal."
In turn, defendant affirmed his understanding of the foregoing admonishment.
At the sentencing hearing, defendant's ex-wife, Susan, testified to the couple's marriage, separation, dissolution, as well as defendant's conduct thereafter. Much of her testimony mirrored the factual basis offered by the State at defendant's plea. According to Susan, the entry of the dissolution was delayed because defendant twice failed to produce funds to resolve the arrearage accumulated during their separation. Following a court-mandated mediation, defendant approached Susan and the following occurred:
"He begged me not to follow through with the divorce. And when I told him that I was proceeding, he told me that he would drag me through the courts through the rest of my life and bankrupt me."
Ultimately, she agreed to entry of the dissolution without first receiving that payment. Defendant never satisfied his financial obligations under the agreement, including, inter alia, child support, medical, dental, and educational expenses for Carley. Additionally, defendant did not repay the $5,000 he took from an inheritance meant for Carley. Consequently, Susan has expended significant time and resources since the dissolution in order to compel payment. Susan testified to tables she created listing payments defendant made. During 2004, he paid a total of $1,170.
Susan indicated that defendant never told her where he was employed during the 12 years leading up the sentencing. Likewise, he had repeatedly represented to the civil court he was unemployed. However, Susan, with the help of her current husband, determined that defendant was employed at one point with Revere Mortgage. Through this connection, she spoke to Kenig, who worked there as well, and learned of the $10,000 loan he made to defendant.
According to Susan, during periods of time when defendant was not paying support he took vacations and even brought Carley to Arizona, Las Vegas, Florida, and other places, as well as taking her on a cruise. When confronted about these expenditures, defendant explained that he would do what he wanted to do. Susan further described defendant's failure to reimburse her for the cost of an airline ticket he purchased using her airline miles. Though this was incorporated into the agreement at the time of the dissolution, defendant failed to make the required reimbursement. At one point defendant was placed in handcuffs during a civil hearing and given 24 hours to come up with a "purge amount" in order to avoid jail. While the record is not explicit on this point, it appears defendant did so.
In a statement read to the court, Susan acknowledged defendant's payment of support for a "brief time" following the divorce. Otherwise, he claimed he was "unemployed and unemployable *** had no income, that he was destitute, he was indigent." Although she maintained records of payments made at various points, she acknowledged that her table might not cover all of the payments he made. Nevertheless, defendant had an opportunity to establish the amounts he paid prior to the entry of the judgment for $101,928 against him.
The parties stipulated that defendant filed for bankruptcy 10 times. On the final occasion, defendant's petition was dismissed with prejudice. Moreover, the bankruptcy court barred him from further filings without first obtaining leave of court.
Defendant's current wife, Lori, testified to her ownership of two condominiums, valued at $430,000 and $971,000, as well as two vehicles. While both of the properties were purchased during her marriage to defendant, his name is not on either of them. However, a home equity line of credit was obtained in both of their names. Likewise, she purchased the two vehicles and placed them in her name. Lori further explained that she did not file joint tax returns with defendant and did not know what he earned. She described giving defendant $1,600 for a child support payment at one point. Additionally, she had occasionally assisted in the payment of attorneys in the civil case and offered to pay defendant's bond. Although defendant contributed money to their marital expenses, she paid most of the bills. She did not give defendant an allowance of any kind.
The parties entered into several documentary stipulations, essentially relevant to the domestic relations proceedings. Defendant also offered several receipts of payments made during 2008 for child support, totaling $2,760. Additionally, defendant tendered a cashier's check for $15,000. Defendant then offered a statement to the court acknowledging his shortcomings and inability to earn money. He stated, "I still owe a great deal of child support, I do intend to pay it." He added, "I think that the information that [defense counsel] put forward was when I did have the ability, I did try to pay. The periods of time when I didn't pay, that's when I didn't have the ability. That's ...