Appeal from the Circuit Court of Winnebago County. No. 10-CF-2985 Honorable John R. Truitt, Judge, Presiding.
The opinion of the court was delivered by: Justice Jorgensen
JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Hutchinson and Spence concurred in the judgment and opinion.
¶ 1 Defendant, Dwayne C. Buchanan, appeals from the denial of his pro se "Motion to Withdraw Guilty Plea and Vacate Judgment." On appeal, he argues that the court erred in failing to ensure that he was represented by counsel as necessary during the postplea proceedings. For the reasons that follow, we affirm in part and vacate in part, and we remand for further proceedings.
¶ 3 On October 27, 2010, defendant was indicted on two counts of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2010)), one count of possession of firearm ammunition without possessing a firearm owner's identification (FOID) card (430 ILCS 65/2(a)(2) (West 2010)), and one count of possession of a firearm without possessing a FOID card (430 ILCS 65/2(a)(1) (West 2010)).
¶ 4 On January 31, 2011, defendant pleaded guilty to unlawful possession of a weapon by a felon, in exchange for the dismissal of the remaining charges and a sentence of 30 months' probation with 180 days in jail. The factual basis of the plea established that defendant was the owner of certain condemned property in Rockford. On September 29, 2010, Rockford police, while assisting Rockford building code enforcers with an inspection of defendant's property, found two pistols and ammunition. Defendant did not have a FOID card. Defendant had previously been convicted of a felony in Illinois. The court admonished defendant about the charge and the sentencing range. The court also admonished him about the rights he would give up by pleading guilty. Defendant stated that he understood. Defendant agreed that he was pleading guilty of his own free will. The court accepted the factual basis of the plea and found defendant's plea to be knowing and voluntary. The court sentenced defendant in accordance with the parties' agreement. The court then advised defendant of his right to appeal.
¶ 5 Defense counsel filed a timely motion to withdraw the plea but did not file a certificate under Illinois Supreme Court Rule 604(d) (eff. July 1, 2006) until that motion had been denied. On appeal, we found that, because counsel's certificate did not precede the hearing on defendant's motion, counsel's certificate was untimely and invalid. People v. Buchanan, 2011 IL App (2d) 110733-U,
¶ 4. We remanded for (1) the filing of a timely and valid Rule 604(d) certificate; (2) the opportunity to file a new motion to withdraw the plea; and (3) a new motion hearing. Id.
¶ 6 On remand, on December 22, 2011, defense counsel filed an amended motion to withdraw the guilty plea. The motion alleged that defendant did not knowingly, intelligently, and voluntarily waive his right to a jury trial, that defendant did not fully comprehend the court's admonishments, and that "defendant feels that he was coerced into entering the plea of guilty." On that same day, counsel filed the requisite Rule 604(d) certificate.
¶ 7 On January 27, 2012, the parties appeared for a hearing on the amended motion. Defense counsel informed the court that "[defendant] is now stating that he needs to speak to [defense counsel] some more and [defendant] wants to maybe add more to the Amended Motion." The court continued the matter to February 6, 2012, for a hearing.
¶ 8 On February 6, 2012, at the outset of the proceedings, the following occurred:
"[DEFENSE COUNSEL]: *** [Defendant] is requesting, um, that conflicts counsel be appointed to the case to argue the Motion to Vacate Plea. He believes that he is going to have to call me as a witness to testify. If you look at the amended motion, allegation No. 2 is that the defendant feels that he was coerced into entering into the plea of guilty; and I believe he is stating that I did something to coerce him into entering into his plea of guilty.
THE COURT: I think that can be handled by a Krankel inquiry where he simply, uh, states his position and you are given the opportunity to respond; and I-and, uh-(pauses)-and I don't think it's-it's necessary unless-(pauses)-if the Court believes there was either neglect, uh-(pauses)-prejudice, uh-(pauses)-that the Court isn't automatically required to appoint other counsel when, uh, he's simply making an allegation.
[DEFENSE COUNSEL]: Correct, Your Honor.
THE COURT: I can hear what he has to say. I can hear what you have to say in response. I can rely upon the Court's recollection, the report of proceedings from that day; and, uh, he's not automatically entitled to appointment of other counsel simply because he's making that allegation.
[DEFENSE COUNSEL]: That-that is correct, Your Honor. He-I advised him that I would make that motion for him. That is what he wanted to talk to me about after the last court date.
THE COURT: All right. That's-that's denied at this point in time.
THE DEFENDANT: Excuse me, Your Honor. I ...