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The People of the State of Illinois v. Kenneth W. Feldman

April 29, 2011

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
KENNETH W. FELDMAN,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Montgomery County. No. 08-CF-182 Honorable John P. Coady, Judge, presiding.

The opinion of the court was delivered by: Justice Spomer

Rule 23 order filed April 1, 2011 Motion to publish granted April 29, 2011.

JUSTICE SPOMER delivered the judgment of the court, with opinion.

Justices Donovan and Wexstten concurred in the judgment and opinion.

OPINION

The defendant, Kenneth W. Feldman, pleaded guilty to unlawful possession of a controlled substance (hydrocodone) and was sentenced to one year of conditional discharge. In this direct appeal, he contends he should have been allowed to withdraw his guilty plea because "he had a defense worthy of consideration by a jury." For the reasons that follow, we affirm his conviction and sentence.

FACTS

On November 14, 2008, the defendant entered a negotiated plea of guilty to a charge of unlawful possession of a controlled substance (hydrocodone). The factual basis for the plea, recited by the State, was, inter alia, that on October 16, 2008, following a search of the defendant's vehicle by a sheriff's deputy at the Coalfield Rest Area, a plastic bag containing "pills and substances" was discovered, that some of the pills were identified as hydrocontin bitrate pills, while others were suspected of being codeine phosphate pills, and that the defendant "did not have prescription [sic] for any of the substances that were found."

Immediately after this factual basis, including the quote directly above, was presented, the defendant's attorney was asked if he objected to the factual basis. He stated that he did not. The defendant was then asked if he objected to the factual basis. He stated that he did not, and the court accepted the factual basis, gave the defendant a final opportunity to change his mind about pleading guilty, and then accepted the defendant's guilty plea and sentenced him as described above.

On December 11, 2008, the defendant filed a motion to withdraw his guilty plea, claiming for the first time--and in direct contravention of the factual basis to which he had stipulated--as follows: "[The defendant] now believes he can verify he had a prescription for the pills found in his possession." He also claimed that he only pleaded guilty "to obtain his release from jail." On March 9, 2009, he filed an amended motion to withdraw his guilty plea, in which he claimed he had "shown proof to counsel that he had a prescription" for some of the drugs in his possession. On May 22, 2009, a hearing was held on the amended motion. The defendant testified that he had a prescription for the hydrocodone (commonly prescribed as Vicodin, a combination of hydrocodone and acetaminophen), and he produced a workers' compensation report purportedly written by a physician on July 31, 2008, about an injury to the defendant's finger. The report contained the statement that the defendant "continues to complain of pain and is given a refill on his Vicodin." On cross-examination, the defendant conceded that he was aware of the alleged prescription on the date he stipulated to the factual basis presented by the State and pleaded guilty, but he claimed to have done so because he "was under the pressures of being incarcerated and being from out of state." At the conclusion of the hearing, the trial judge noted that he had reviewed the transcript of the guilty plea hearing, believed he had thoroughly admonished the defendant regarding the rights the defendant was giving up and the other consequences of the plea, and did not believe that the evidence presented at the hearing on the motion to withdraw was sufficient for the defendant to prevail on a "claim of actual innocence." Accordingly, the judge denied the defendant's motion to withdraw his guilty plea.

On June 17, 2009, the defendant filed a motion to reconsider the denial of the motion to withdraw his guilty plea. On June 29, 2009, a hearing was held on the motion, at which the defendant presented what was purported to be an expense report from a Kmart Pharmacy in West Allis, Wisconsin, showing that the defendant had prescriptions for "HYDROCO/APAP" filled on five occasions, the last being July 31, 2008. The defendant did not present any actual prescriptions, nor did he present an affidavit, or other verified information, from a physician showing that he possessed valid prescriptions for Vicodin. Finding both that the defendant had been aware of the alleged prescription at the time he pleaded guilty and that he had not sufficiently proven the existence of a valid prescription that correlated to the pills found in his possession at the time he was arrested, the trial judge denied the defendant's motion to reconsider.

On July 17, 2009, the defendant filed a notice of appeal. This court asked the defendant to brief the issue of the timeliness of the notice, which we address below.

ANALYSIS

On appeal, the defendant contends that the trial judge erred in denying his request to withdraw his guilty plea, because the defendant presented "substantial evidence" that he had a prescription for Vicodin. He also contends that the trial judge employed the wrong standard in ruling on his motion and that this court does have jurisdiction to consider his appeal. We begin our analysis by considering the issue of our jurisdiction. As the defendant correctly notes, the concern expressed by this court was whether a defendant could file a motion to reconsider the denial of a motion to withdraw a guilty plea, because if that filing were not permissible, then the notice of appeal in this case would be untimely, because it was filed within 30 days of the denial of the motion to reconsider but not within 30 days of the denial of the motion to withdraw the guilty plea. After considering the arguments and authority presented by the parties, we conclude that we do have jurisdiction to consider this appeal. As the defendant points out, because a defendant who pleads guilty under circumstances such as those in the case at bar may not file an appeal without first filing a motion to withdraw the guilty plea, it is the order denying that motion that is the final judgment. Accordingly, a motion to reconsider that denial does not run afoul of the general rule against successive postjudgment motions pronounced in People v. Miraglia, 323 Ill. App. 3d 199 (2001), and People v. Scruggs, 161 Ill. App. 3d 468 (1987), and in fact provides the trial court with the opportunity to correct any errors that might have resulted from the ...


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