People v. Petty

NO. 4-05-0213 Filed 8/2/06

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
STEPHEN PETTY, ) No. 99CF1219
Defendant-Appellant. )
) Honorable
) John R. Kennedy,
) Judge Presiding.
__________________________________________________________________

JUSTICE MYERSCOUGH delivered the opinion of the court:

In September 2004, defendant, Stephen Petty, filed an

amended postconviction 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

postconviction 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.

I. BACKGROUND

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 agree-

ment 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, defen-

dant withdrew his motion to withdraw his guilty plea. On Decem-

ber 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

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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, defen-

dant 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

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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 with-

drawing 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 arguments and affirmed the conviction and sentence.

People v. Petty, No. 4-00-0777 (January 3, 2002) (unpublished order under

Supreme Court Rule 23).

In August 2002, defendant filed a pro se verified petition for postconviction

relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-8

(West 2002)). In his petition, defendant alleged that (1) the

attorney that handled his first guilty plea failed to file a

certificate in compliance with Supreme Court Rule 604(d) (188

Ill. 2d R. 604(d)), (2) he was denied due process because he was

not admonished at the time of his plea that a term of mandatory

supervised release was part of the negotiated sentence, and (3)

he received ineffective assistance of counsel prior to his first

guilty plea when his counsel failed to advise or communicate to

him an offer by the State of nine years. The trial court

summarily dismissed defendant=s petition, finding the petition

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frivolous and patently without merit.

On appeal, this court found that defendant's allegation

that his attorney failed to convey a nine-year offer stated a

gist of a constitutional claim. People v. Petty, No. 4-02-0872

(May 25, 2004) (unpublished order under Supreme Court Rule 23).

Therefore, we remanded the cause to the trial court with direc-

tions to appoint counsel for defendant and for the entire peti-

tion to be docketed for second-stage review. Petty, No. 4-02-
0872.

On September 21, 2004, following remand, defendant

filed an amended postconviction petition. The petition realleged

the original three claims. The petition also alleged attorney

Piraino rendered ineffective assistance of counsel because he

failed to file the Rule 604(d) certificate and determine defen-

dant understood the mandatory-supervised-release requirement.

On March 1, 2005, the trial court held an evidentiary

third-stage hearing on the postconviction petition. As is

relevant to the issue on appeal, defendant testified as follows.

Prior to pleading guilty on November 9, 1999, defendant

met with Piraino only once or twice. According to defendant,

Piraino never discussed with him the motion to withdraw the

guilty plea.

However, on cross-examination, defendant admitted

receiving a letter from Piraino dated November 24, 1999. A copy

of that letter is contained in the record on appeal. In that

letter, Piraino advised defendant not to withdraw his guilty

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plea. Piraino also informed defendant that if the trial court

allowed him to withdraw his guilty plea, he would be tried on the

two Class X felonies, each of which carried a penalty of 6 to 30

years' imprisonment. Defendant testified he decided to withdraw

his motion to withdraw his guilty plea and proceed to sentencing.

After the trial court sentenced him to 11 1/2 years'

imprisonment, defendant testified he again filed a pro se motion

to withdraw his guilty plea. Piraino subsequently filed a motion

to withdraw the guilty plea on defendant's behalf but, according

to defendant, never discussed the motion with him. On February

24, 2000, the court held the hearing on the motion and allowed

defendant to withdraw his guilty plea.

The trial court took judicial notice of the court file

and transcripts. Defendant rested, and the State presented its

case. Piraino testified he met with defendant eight or nine

times. After defendant pleaded guilty, defendant told Piraino

that he thought the 11 1/2-year cap was too high, and he wanted

to withdraw his guilty plea. Piraino spoke to defendant in

person to try to talk him out of withdrawing his guilty plea.

Piraino also wrote him a letter asking him to reconsider because

if defendant withdrew his guilty plea, he would receive a

greater sentence. A day before writing that letter, Piraino

prepared the motion to withdraw the guilty plea and filed a Rule

604(d) certificate. Defendant later withdrew that motion to

withdraw the guilty plea.

Piraino testified that after the trial court sentenced

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defendant to 11 1/2 years' imprisonment, defendant would not

speak to Piraino. Piraino believed he was fired. He admitted,

however, that before he withdrew as counsel, he appeared on the

motion to withdraw the guilty plea, which was granted.

On cross-examination, Piraino stated he filed the first

motion to withdraw the guilty plea immediately after getting a

copy of defendant's pro se motion. He did not talk to defendant

prior to filing that motion, despite filing a Rule 604(d) certif-

icate saying he consulted with defendant about the grounds.

Piraino did not recall whether he filed a second motion to

withdraw the guilty plea but admitted he would have followed the

same procedure as he did with the first. He did not recall

filing a second Rule 604(d) certificate because he did not think

he still represented defendant.

Following argument, the trial court found that the

second motion to withdraw the guilty plea did not have an accom-

panying Rule 604(d) certificate. However, the court found that

defendant was not prejudiced by his counsel's failure to file the

certificate because the motion was granted. The court further

found that defendant forfeited the issue by failing to raise it

on direct appeal. Finally, the court noted the failure to file a

Rule 604(d) certificate does not raise an issue of constitutional

deprivation of rights.

This appeal followed.

II. ANALYSIS

The Act (725 ILCS 5/122-1 through 122-8 (West 2004)) provides a means

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by which a defendant may challenge his conviction for violations of federal or state

constitutional rights. People v. Orange, 195 Ill. 2d 437, 447, 749 N.E.2d 932, 938

(2001). To be entitled to postconviction relief, a defendant must establish a substantial

deprivation of federal or state constitutional rights in the proceedings that resulted in the

conviction or sentence being challenged. Orange, 195 Ill. 2d at 447, 749 N.E.2d at 938.

Trial court determinations on postconviction petitions made

after an evidentiary hearing will not be disturbed unless

manifestly erroneous. People v. Morgan, 187 Ill. 2d 500, 528,

719 N.E.2d 681, 697 (1999).

Defendant argues the absence of a Rule 604(d) certifi-

cate renders the withdrawal of defendant's original guilty plea

void. Defendant seeks vacation of his current sentence and a

remand for proceedings on his original motion to withdraw his

guilty plea.

Defendant has forfeited the issue by failing to raise

it on his direct appeal. A postconviction proceeding only addresses

constitutional issues that were not, and could not have been, raised and adjudicated on

direct appeal. People v. Pitsonbarger, 205 Ill. 2d 444, 456, 793 N.E.2d 609, 619 (2002).

The doctrine of res judicata bars issues raised on direct appeal, and issues that could

have been raised, but were not, are forfeited. Pitsonbarger, 205 Ill. 2d at 456, 793

N.E.2d at 619. Because defendant could have raised the issue in his

direct appeal but did not, the issue is forfeited.

Even if we were to address the issue on the merits, we

would find defendant is not entitled to the relief requested.

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Pursuant to Rule 604(d), a defendant may not appeal from a judgment entered on a

plea without first filing a motion to withdraw the guilty plea. 188 Ill. 2d R. 604(d). If only

the sentence is challenged, the defendant must file a motion to reconsider the sentence.

188 Ill. 2d R. 604(d). Counsel representing a defendant who has pleaded guilty must

file in the trial court a certificate stating the following:

"[T]he attorney has consulted with the defendant either by

mail or in person to ascertain defendant's contentions of

error in the sentence or the entry of the plea of guilty, has

examined the trial court file and report of proceedings of the

plea of guilty, and has made any amendments to the motion

necessary for adequate presentation of any defects in those

proceedings." 188 Ill. 2d R. 604(d).

The purpose of the Rule 604(d) motion requirement is to permit the trial

judge who accepted the plea and imposed the sentence to consider any allegations of

impropriety that took place outside the record and correct any error that may have led to

the guilty plea. People v. Shirley, 181 Ill. 2d 359, 361, 692 N.E.2d 1189, 1191 (1998).

The purpose of this certificate requirement is to ensure "counsel has reviewed the

defendant's claim and considered all relevant bases for the motion to withdraw the guilty

plea or to reconsider the sentence." Shirley, 181 Ill. 2d at 361, 692 N.E.2d at 1191.

The certificate requirement "encourages the preservation of a clear record *** of the

reasons why a defendant is moving to withdraw his plea or to reduce sentence."

Shirley, 181 Ill. 2d at 361, 692 N.E.2d at 1191. When Rule 604(d) is violated, the

remedy is to remand for the filing of a new motion and for a new hearing on the motion.

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People v. Janes, 158 Ill. 2d 27, 33, 630 N.E.2d 790, 792 (1994) (reversing trial court's

denial of a motion to withdraw a guilty plea where counsel failed to strictly comply with

Rule 604(d) certificate requirement); People v. Dismuke, 355 Ill. App. 3d 606, 611, 823

N.E.2d 1131, 1135 (2005) (involving insufficient Rule 604(d) certificate).

Whether strict compliance with the Rule 604(d) certificate requirement is

necessary when the trial court grants the motion to withdraw the guilty plea is a matter

of first impression. Given the purpose of the certificate requirement, we conclude that

when the motion to withdraw the guilty plea is granted, the Rule 604(d) certificate

requirement becomes irrelevant. Cf. People v. McCaskill, 298 Ill. App. 3d 260, 268, 698

N.E.2d 690, 695 (1998) (finding that where the defendant did not file a motion to

withdraw his negotiated guilty plea before moving to reduce his sentence, counsel's

alleged failure to file a Rule 604(d) certificate was irrelevant). It makes no sense to

remand the cause for another hearing on a motion to withdraw a guilty plea that has

previously been granted.

Defendant argues that compliance with Rule 604(d) would have provided

him the opportunity to make a fully informed decision about his plan to withdraw his

guilty plea. However, the purpose of the rule is not to protect defendants from their own

poor judgment. The rule ensures that counsel considered all arguments in support of

the motion to withdraw the guilty plea. Whether defense counsel reviewed defendant's

claim and considered all relevant bases for the motion to withdraw the guilty plea is

irrelevant because defendant received the relief he sought in the motion--withdrawal of

his guilty plea.

Moreover, the testimony at the evidentiary hearing

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demonstrated defendant did know the ramifications of withdrawing

his guilty plea so as to permit him to make an informed decision.

Defendant admitted receiving the November 24, 1999, letter from

Piraino informing defendant that if he withdrew his guilty plea,

he would be tried on the two Class X felonies, each of which

carried a penalty of 6 to 30 years' imprisonment.

Defendant also argues that because the filing of a Rule

604(d) certificate is a prerequisite to holding the hearing on

the motion to withdraw the guilty plea, all subsequent procedures
were void. In support of his proposition, defendant cites People

v. Oliver, 276 Ill. App. 3d 929, 932, 659 N.E.2d 435, 438 (1995)

(noting that Janes, 158 Ill. 2d 27, 630 N.E.2d 790, "implicitly

held that the proceedings below were fundamentally flawed, not

merely void due to a technicality").

"A void judgment is one entered by a court that lacks

the power to make or enter a particular order." People v.

Johnson, 338 Ill. App. 3d 213, 215, 788 N.E.2d 152, 154 (2003).

A voidable order is "one entered erroneously by a court having

jurisdiction." People v. Davis, 156 Ill. 2d 149, 155-56, 619
N.E.2d 750, 754 (1993).

A trial court that proceeds with a hearing on a motion

to withdraw a guilty plea without confirming that counsel filed a

Rule 604(d) certificate proceeds in error. See, e.g., Dismuke,

355 Ill. App. 3d at 608, 823 N.E.2d at 1133 (the filing of a Rule 604(d) certificate is a

condition precedent to a hearing on the motion to withdraw the guilty plea). This

does not render the ruling on the motion void. If the court

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denies the motion to withdraw, the cause must be remanded for the

filing of a new motion and for a new hearing on the motion. Dismuke, 355 Ill. App. 3d at

611, 823 N.E.2d at 1135. However, if the court grants the motion, it

is immaterial whether counsel filed a Rule 604(d) certificate

because the defendant received the relief requested.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.
Affirmed.

TURNER, P.J., and McCULLOUGH, J., concur.

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