People v. Bryant

SECOND DIVISION
December 12, 2006

No. 1-05-0458

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
KAVELL BRYANT, ) Honorable
) Vincent M. Gaughan,
Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE WOLFSON delivered the opinion of the

court:

In August of 2003 we sent this case back to the trial court

with a simple mandate: provide the defendant with proper Supreme

Court Rule 605(b) (188 Ill. 2d R. 605(b)) admonishments and give

him the opportunity to file a motion to withdraw his guilty plea.

People v. Bryant, No. 1-01-3013 (2003) (unpublished order under

Supreme Court Rule 23). What followed in the trial court was a

series of rulings that create an issue of first impression in

this State.

The main issue is whether the trial court erred in

reconsidering and vacating an order granting the defendant’s oral

motion to withdraw his guilty plea. We hold it did not.

BACKGROUND

Defendant Kavell Bryant pled guilty to first degree murder
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and was sentenced to 20 years in prison. Defendant failed to

file a written motion to withdraw his guilty plea as required by

Supreme Court Rule 604(d). 188 Ill. 2d R. 604(d). He did not

file a direct appeal. Defendant filed a pro se post-conviction

petition, which the trial court dismissed after a second-stage

hearing. Defendant appealed. We remanded the case to the trial

court with directions to admonish defendant in accordance with

Rule 605(b), and to allow him to file a motion to withdraw his

guilty plea if he so desired.

On remand, the trial court started to admonish defendant

pursuant to Rule 605(b) when it suddenly stopped and asked

defendant whether he wished to “withdraw his guilty plea.” After

defendant’s counsel responded “he does,” the trial court said:

“All right, I’m not going to play this nonsense. Motion to

withdraw guilty plea is sustained. Okay. We are back on the

trial call.” When the State asked whether there would be a

hearing on defendant’s motion to withdraw his guilty plea, the

court said:

“Well, the whole thing is, here’s my whole

point, when I am part of the agreement, there

was an agreement upon his plea, if the

defendant doesn’t want it, if you can turn

back pots and pans, my philosophy is, he can

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vacate the plea agreement. Okay?”

The half-sheet contains a notation indicating the trial court

sustained defendant’s motion to withdraw his plea on December 1,

2003. The State did not object to the trial court’s

consideration of an oral motion to withdraw the guilty plea.

On December 22, 2003, the State filed a “Motion to

Reconsider Granting of Defendant’s Motion to Withodraw [sic]

Guilty Plea,” requesting the trial court reconsider its decision

and conduct a hearing into the merits of the defendant’s motion

to withdraw.

Defense counsel filed a written motion to withdraw

defendant’s guilty plea on February 4, 2004. On May 17, 2004,

the trial court granted the State’s motion to reconsider,

holding: “All right, the motion to vacate the order for new trial

is sustained, all right.”

The case then was passed for a discussion between the court

and the parties. When the case was recalled, the trial court

admonished defendant pursuant to portions of Supreme Court Rule

402. 177 Ill. 2d R. 402. The trial court apparently believed

this court had ordered him to give more complete Rule 402

admonishments. We did not. During the Rule 402 admonishments,

the trial court asked defendant whether any promises or

agreements had been made to him to make him plead guilty.

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Defendant said his attorney promised him he could get “day-for-

day like two-for-one” for the time he spent in county jail, and

“could get a time cut within two years” if he pled guilty.

Defendant said his attorney told him “several other things like

he induced me to take it.”

After determining the defendant understood he was pleading

guilty voluntarily and knowingly, the trial court accepted his

“guilty plea.” No sentence was imposed or discussed. Defendant

was then admonished pursuant to Rule 605(b), which included an

admonishment that he could file a written motion to withdraw his

plea.

Following the hearing, the State raised the issue of

defendant’s bond, which had previously been set at $150,000. The

State argued defendant should be held in custody until the ruling

on his motion to vacate the guilty plea because he was once again

a convicted felon. The court replied:

“Well, actually right now as its stands there

is, will be, I will allow [defendant] to file

an oral motion instanter to vacate the plea

of guilty so you are not convicted of

anything until thirty days from now. *** So,

State, there has been not a substantial

change in his position other than the

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appellate court said that he had been not

properly admonished on his guilty plea and

throughout the pendency of this you have

never moved to increase the bond. Now that

he has made bond it seems like an

afterthought.”

The trial court sustained defendant’s oral motion to allow his

bond to stand. No issue is raised in this appeal regarding the

court’s post-hearing comments about an oral motion to vacate the

guilty plea “until 30 days from now.” Whatever order the trial

court had in mind was not reduced to writing and never was

referred to again. It remains a mystery. Since it is not raised

as an issue, we will move on.

On June 8, 2004, defense counsel filed a second written

motion to withdraw defendant’s guilty plea, contending his plea

was not voluntary because of his prior defense counsel’s

misrepresentations in the original action. Following a hearing,

the trial court denied the motion, finding that:

“[Defendant] did enter his plea knowingly and

voluntarily. The evidence showed that he was

not incorrectly informed by his attorney

concerning reductions of sentences, *** I

find that the evidence has shown that there

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has been no substantial violations of his

Constitutional rights, which would indicate

in any way that [defendant’s] plea was not

voluntary and was not knowingly made.

Therefore, the motion to withdraw the plea is

denied.”

Defendant appealed.

DECISION

I. Motion to Withdraw the Guilty Plea

Defendant contends the trial court improperly reconsidered

its decision to vacate the guilty plea because his “presumption

of innocence and constitutional rights” reattached after the

trial court vacated his plea. Defendant contends the trial court

had no authority to insert him back into his guilty plea. See

Schak v. Blom, 334 Ill. App. 3d 129, 134, 777 N.E.2d 635 (2002)

(a judgment or order is void where it is entered by a court which

lacks the “inherent power to enter the particular judgment or

order.”) Defendant does not challenge the merits of the trial

court’s decision to deny his motion to withdraw the guilty plea.

That is, he does not claim the 1998 Rule 402 admonishments were

fatally defective.

Initially, we note the parties disagree regarding the

correct standard of review in this appeal. Defendant contends

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his claim presents a pure question of law, and, therefore, should

be reviewed de novo. See People v. Johnson, 206 Ill. 2d 349,

359, 794 N.E.2d 294 (2002). The State counters it is within the

sound discretion of the trial court to determine whether a guilty

plea may be withdrawn, and the court’s decision is reviewed only

for an abuse of discretion. See People v. Stevens, 324 Ill. App.

3d 1084, 1090, 757 N.E.2d 1281 (2001). Because the issue on

appeal is whether the trial court had the power to reconsider its

decision to grant defendant’s motion to withdraw the plea, we

find the proper standard of review is de novo.

Leave to withdraw a guilty plea is “not granted as a matter

of right, but as required to correct a manifest injustice under

the facts involved.” People v. Pullen, 192 Ill. 2d 36, 39, 733

N.E.2d 1235 (2000). A trial court should allow a defendant to

withdraw his guilty plea where the plea was based on the

misapprehension of facts or law or because of misrepresentations

by counsel, where there is doubt of the defendant’s guilt, or

where ends of justice would better be served by submitting the

case to a trial. Pullen, 192 Ill. 2d at 40; Stevens, 324 Ill.

App. 3d at 1090.

The State counters that the trial court did not actually

vacate defendant’s guilty plea during the hearing on December 1,

2003. The State contends the trial could not have procedurally

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withdrawn the guilty plea until defendant filed a written motion

to withdraw his plea, as required by Supreme Court Rule 604(d).

As defendant notes, the State did not object to an oral

motion before or after the trial court vacated defendant’s guilty

plea and placed the case back on the trial call. Instead, the

State sought leave to file a motion to reconsider the decision

based on the trial court’s failure to conduct a hearing on the

motion.

Issues not raised in the trial court are generally

considered forfeited on appeal. People v. O’Neal, 104 Ill. 2d

399, 407, 472 N.E.2d 441 (1984). “The principle of waiver

applies to the State as well as the defendant in a criminal

case.” O’Neal, 104 Ill. 2d at 407. See also People v. Enoch,

122 Ill. 2d 176, 188, 522 N.E.2d 1124 (1988) (“It has been held

that the requirement of a written motion can be waived if a

defendant makes an oral motion for a new trial and the State does

not object.”) We find the State forfeited its contention on

appeal. See Enoch, 122 Ill. 2d at 188.

Forfeiture aside, we find Rule 604(d) does not apply in this

case.

Rule 604(d) provides, in relevant part:

“No appeal from a judgment entered upon a

plea of guilty shall be taken unless the

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defendant, within 30 days of the date on

which sentence is imposed, files in the trial

court *** a motion to withdraw the plea of

guilty and vacate the judgment. *** The

motion shall be in writing and shall state

the grounds thereof. *** The defendant’s

attorney shall file with the trial court a

certificate stating that the 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.” 188 Ill. 2d R.

604(d)

Our supreme court has held Rule 604(d) was “designed to

eliminate needless trips to the appellate court and to give the

trial court an opportunity to consider the alleged errors and to

make a record for the appellate court to consider on review in

cases where defendant’s claim is disallowed.” (Emphasis added.)

People v. Wilk, 124 Ill. 2d 93, 106, 529 N.E.2d 218 (1988).

“Rule 604(d) establishes a condition precedent for an appeal from

a defendant’s plea of guilty.” Wilk, 124 Ill. 2d at 105.

In People v. Petty, 366 Ill. App. 3d 1170, 1177, 853 N.E.2d

429 (2006), the court held a trial court that proceeds with a

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hearing on a motion to withdraw a guilty plea without confirming

defense counsel filed a Rule 604(d) certificate proceeds in

error. If the court denies the motion to withdraw, the cause

must be remanded for the filing of a new motion and for a new

hearing. Petty, 366 Ill. App. 3d at 1177. If the trial court

grants the motion to withdraw, however, “it is immaterial whether

counsel filed a Rule 604(d) certificate because the defendant

received the relief requested.” Petty, 366 Ill. App. 3d at 1177.

Contrary to the State’s contention, the record clearly shows

the trial court sustained defendant’s motion to withdraw during

the hearing on December 1, 2003. The State’s own motion to

reconsider asked the trial court to vacate its order and conduct

a hearing on the merits of the defendant’s motion. The circuit

court half-sheet also indicates the trial court granted

defendant’s motion to withdraw his guilty plea.

While Rule 604(d) clearly required defendant to file a

written motion to withdraw his plea before he could appeal from

any judgment entered on the plea, nothing in the rule

specifically required defendant to file a written motion to

withdraw before the trial court vacated his plea and ordered a

new trial. Here, similar to Petty, it was immaterial whether

defense counsel filed a written motion before the trial court

vacated the plea because the defendant actually received the

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relief he requested. See Petty, 366 Ill. App. 3d at 1177. No

Illinois case, rule, or statute suggests a defendant is required

to file a written motion to withdraw his plea before the trial

court may vacate the plea and order a new trial. We decline to

impose such a requirement here.

We find the trial court did not err in granting defendant’s

oral motion to withdraw his guilty plea.

We must now determine whether the court was allowed to

reconsider its decision in light of the State’s motion.

Whether a trial court can reconsider its decision to grant a

defendant’s motion to withdraw his guilty plea is an issue of

first impression in Illinois.

In People v. Dismuke, 355 Ill. App. 3d 606, 607, 823 N.E.2d

1131 (2005), the trial court granted defendant’s motion to

withdraw his guilty plea. Upon reconsideration after a hearing,

the court denied defendant’s motion. Dismuke, 355 Ill. App. 3d

at 607. Defendant then filed an amended motion, which was denied

by the trial court. The court reversed the trial court’s order

because defense counsel’s Rule 604(d) petition was deficient.

While Dismuke is factually similar to the case at bar, the court

did not consider, and the defendant did not challenge, the trial

court’s decision to reconsider the granting of defendant’s

original motion to withdraw.

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We are not completely without guidance, however.

The purpose of a motion to reconsider is to bring to the

trial court’s attention changes in the law, errors in the court’s

previous application of existing law, and newly discovered

evidence not available at the time of the hearing. In re Gustavo

H., 362 Ill. App. 3d 802, 814, 841 N.E.2d 50 (2005). Public

policy favors correcting errors at the trial level, and a timely

motion to reconsider is an appropriate method to direct the trial

court’s attention to a claim of error. People v. Wagner, 100

Ill. App. 3d 1051, 1053, 427 N.E.2d 985 (1981); People v. Stokes,

49 Ill. App. 3d 296, 298, 364 N.E.2d 300 (1977).

“A court in a criminal case has inherent power to reconsider

and correct its own rulings, even in the absence of a statute or

rule granting it such authority.” People v. Mink, 141 Ill. 2d

163, 171, 565 N.E.2d 975 (1990). The court’s power to reconsider

extends to interlocutory, as well as final, judgments. Mink, 141

Ill. 2d at 171.

In Mink, after convictions, the defendant filed a post-trial

motion alleging the State failed to introduce sufficient evidence

of venue. The trial court granted the defendant’s motion for a

new trial. The State subsequently filed a motion for

reconsideration of the trial court’s order. The trial court

granted the State’s motion, vacated the new trial order, and

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reinstated the defendant’s convictions. On appeal, the defendant

argued the State was barred from seeking reconsideration of the

trial court’s order by article VI, section 6, of the Illinois

constitution, and by the double jeopardy clauses of the State and

Federal Constitutions. Mink, 141 Ill. 2d at 170.

In rejecting the defendant’s contentions, the supreme court

noted the trial court’s order granting the defendant’s motion for

a new trial was interlocutory in nature. Mink, 141 Ill. 2d at

171. When the trial court set the matter for a new trial, it

retained jurisdiction over the defendant and the indictment.

Mink, 141 Ill. 2d at 171. The court held: “So long as the case

was pending before it, the trial court had jurisdiction to

reconsider any order which had previously been entered.” Mink,

141 Ill. 2d at 171, citing People ex rel. Daley v. Crilly, 108

Ill. 2d 301, 305, 483 N.E.2d 1236 (1985); People v. Van Cleve, 89

Ill. 2d 298, 432 N.E.2d 837 (1982); People v. Heil, 71 Ill. 2d

458, 376 N.E.2d 1002 (1978). See also State v. Larkin, 111 Ohio

App. 3d 516, 519, 676 N.E.2d 906 (Ohio 1996) (“[T]he original

trial judge did have authority to reconsider and, upon more

mature reflection, to vacate his original decision granting

[defendant] a new trial.”)

Here, similar to Mink, the trial court’s order sustaining

defendant’s motion to withdraw his guilty plea was interlocutory

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in nature. See People v. Allen, 71 Ill. 2d 378, 381, 565 N.E.2d

975 (1978) (“The final judgment in a criminal case is the

sentence.”) Even though the trial court placed the matter “back

on the trial call,” it retained jurisdiction over the defendant

and the indictment.

The cases cited by defendant do not warrant a different

conclusion. In Estelle v. Williams, 425 U.S. 501, 503, 48

L.Ed.2d 126, 96 S.Ct. 1691 (1976), the United States Supreme

Court recognized “the presumption of innocence, although not

articulated in the Constitution, is a basic component of a fair

trial under our system of criminal justice.” The issue in

Estelle, however, was whether the defendant was denied his

“presumption of innocence” when he was forced to appear before

the jury in prison attire. Estelle, 425 U.S. at 504, 48 L.E.2d

at 130, 96 S.Ct. at 1693. See also McMillan v. Pennsylvania, 477

U.S. 79, 87, 91 L.Ed.2d 67, 106 S.Ct. 2411 (1986) (“the Due

Process Clause precludes States from discarding the presumption

of innocence.”)

Likewise, in People v. King, 1 Ill. 2d 496, 500, 116 N.E.2d

623 (1953), our supreme court noted that “[a]fter a plea of

guilty, a prisoner stands before the court as a convicted

criminal, and the presumptions of innocence which the law

indulges on a not-guilty plea no longer exist.” However, the

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court did not consider whether a defendant’s presumption of

innocence is violated if the trial court reconsiders its prior

decision to grant his motion to withdraw a guilty plea.

Estelle, McMillan, and King espouse only a general principal

of law that a defendant’s presumption of innocence is a basic

component of a fair trial under our system of criminal justice.

None of the cases stands for the proposition that a defendant’s

presumption of innocence is violated if a trial court is allowed

to reconsider an order granting a motion to withdraw a guilty

plea or an order granting a new trial.

We find the trial court did not err in reconsidering and

vacating its decision to grant defendant’s motion to withdraw his

guilty plea. See Mink, 141 Ill. 2d at 171.

II. Other Issues

Defendant contends the trial court failed to comply with

Rule 402 in the May 17, 2004, proceedings, and failed to ensure

defendant’s 2004 guilty plea was voluntary. Defendant also

contends he was deprived of effective assistance of counsel when

his defense counsel successfully vacated his 1998 plea but then

allowed him to involuntarily enter a guilty plea in 2004.

We remanded the case to the trial court with directions to

admonish defendant in accordance with Rule 605(b) (188 Ill. 2d R.

605(b)), and to allow defendant to file a motion to withdraw his

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guilty plea if he so desired. People v. Bryant, No. 1-01-3013

(2003) (unpublished order under Supreme Court Rule 23). “ ‘The

purpose of the Rule 605 admonishments is to ensure a defendant is

aware of the requirements of Supreme Court Rule 604(d) [citation

omitted], which set forth the deadlines and requirement for

appeals from sentences imposed upon a plea of guilty.’ ” People

v. Dixon, 366 Ill. App. 3d 848, 856, 853 N.E.2d 1235 (2006).

In an apparent misunderstanding of our directions on remand,

the trial court needlessly admonished defendant pursuant to Rule

402. While the Rule 402 admonishments unnecessarily complicated

the record, they did not result in defendant entering into a new

plea. After the trial court vacated its order for a new trial,

the 1998 plea was properly reinstated. See Mink, 141 Ill. 2d at

171. The trial court’s Rule 402 and Rule 605(b) admonishments

were related to his 1998 plea, not a new and distinct plea as

defendant contends. Our conclusion is supported by the fact that

neither the trial court nor the parties proceeded as if defendant

had entered a new plea. For example, no sentence was imposed.

Instead, the parties and the court properly focused on whether

defendant’s motion to withdraw his 1998 guilty plea should be

granted.

Because we find the trial court did not err in reconsidering

and vacating its decision to grant defendant’s motion to withdraw

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his 1998 guilty plea, we reject defendant’s contention that he

was forced into a new guilty plea in 2004. There was no new

guilty plea in 2004. Accordingly, we reject defendant’s

remaining contentions on appeal.

CONCLUSION

We affirm the trial court’s judgment.

Affirmed.

HOFFMAN, and SOUTH, JJ., concur.

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