2022 IL App (2d) 200598-U
No. 2-20-0598
Order filed March 14, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, )
)
v. ) No. 18-CF-1945
)
JOSE L. AGUIRRE, ) Honorable
) Brian F. Telander,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court.
Presiding Justice Bridges and Justice Hudson concurred in the judgment.
ORDER
¶1 Held: Because defendant was properly admonished under Rule 605(c) that he needed to
file a motion to withdraw his negotiated guilty plea before appealing, his failure to
file such a motion requires dismissal of this appeal.
¶2 Defendant, Jose L. Aguirre, appeals from his conviction of attempted first-degree murder
(720 ILCS 5/8-4(a), 9-1(a)(1) (West 2018)) entered upon a negotiated guilty plea. He failed to file
a motion to withdraw his plea as a prerequisite to appealing as required by Illinois Supreme Court
Rule 604(d) (eff. July 1, 2017) but contends that the trial court did not substantially comply with
Illinois Supreme Court Rule 605(c) (eff. Oct. 1, 2001) when it gave him postplea admonitions.
2022 IL App (2d) 200598-U
Thus, he seeks a remand for correct admonishments and an opportunity to move to withdraw his
plea. Because the trial court substantially complied with Rule 605(c) and defendant did not file a
motion to withdraw his plea, we dismiss this appeal.
¶3 I. BACKGROUND
¶4 In October 2019, defendant entered a partially negotiated guilty plea to attempted murder.
In exchange, the State dismissed a count of aggravated domestic battery (720 ILCS 5/12-3.3(a)
(West 2018)) and agreed to a sentence cap of 23 years’ incarceration. A Spanish interpreter was
provided to defendant throughout the proceedings.
¶5 At the plea hearing, defendant told the court that he was age 50 and had a sixth-grade
education. He took medication, which did not affect his ability to work with defense counsel or
understand the court. Defendant acknowledged having a drug and alcohol addiction and said that
he had briefly discussed it with counsel. The court advised defendant of the rights he was giving
up by pleading guilty, heard the factual basis for the plea, and determined that the plea was
voluntary. Defendant stipulated that he attempted to kill his ex-girlfriend when he ran her down
with his vehicle, a large SUV, in the parking lot of the Yorktown mall.
¶6 At sentencing on February 10, 2020, after considering the factors in aggravation and
mitigation, the court sentenced defendant to 20 years’ incarceration. The court then admonished
defendant as follows:
“Sir, although you pled guilty, you still have a right to appeal my sentence. If you
decide to do that, you have to file a motion to withdraw your plea in writing in 30 days in
the clerk [sic].
In the motion, you have to set forth all the grounds, the legal grounds that you feel
are appropriate. Anything not in the motion is deemed waived on appeal. I would then have
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a hearing. And if I granted your request, all of the charges would be reinstated and set for
trial.
If I denied it, you would have 30 days to file what is called a notice of appeal. If
you could not afford an attorney, one would be appointed and I would get you a free
transcript of everything that you did here.”
¶7 On February 11, 2020, defendant’s private counsel moved to withdraw as counsel. On
February 14, 2020, the court granted leave to withdraw and appointed the public defender for
purposes of filing any postplea motions. On March 3, 2020, the public defender appeared and
stated that he “wasn't quite sure” why he had been appointed or “what remained to be done” in the
case. Counsel had spoken with defendant, who told him that he was upset about his sentence.
Counsel said that he told defendant that he could move to withdraw the guilty plea and start over
again, but defendant did not want to do that. Instead, defendant wanted his sentence revisited
because his private counsel did not call certain people to testify at the sentencing hearing, and he
believed that, had they testified, the court would have imposed a lower sentence. Counsel said that
he advised defendant that, because his plea agreement involved a negotiated sentence, he would
not be able to appeal any ruling on the length of his sentence and that “the only way [he could]
accrue a right to appeal would be to move to withdraw the plea which is not the avenue he wishes
to pursue.” Counsel told defendant that he could file a motion seeking to reopen the sentencing
hearing to present the witnesses his previous attorney failed to call, but counsel also reiterated to
defendant that he would not be able to appeal the court’s ruling without first moving to withdraw
his plea.
¶8 On March 9, 2020, counsel filed a “Motion to Supplement Sentencing Evidence and
Reduce Sentence.” He did not file a Rule 604(d) certificate. In response, the State filed a motion
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to clarify and asked that defendant identify the witnesses by name. At a September 30, 2020, status
hearing, without defendant present, the trial court denied defendant’s motion, finding that his
request to reopen the sentencing hearing was “extraordinary” and that it had already considered
everything before imposing the sentence. On October 1, 2020, defendant was present for a hearing,
and the court repeated its ruling denying his postsentencing motion. Defendant spoke to the court,
stating in part that his private counsel lied to him and never explained “the things how they were.”
Counsel stated that he wanted it on the record that he had advised defendant that, for the court to
reconsider his sentence, defendant would have to first move to withdraw his plea, and defendant
said that he did not want to do that. The court reaffirmed its ruling denying the motion, and
defendant said, “There’s a lot of things that are not clear.” The court replied, “Okay. That’s it.
Thank you.” Defendant appeals.
¶9 II. ANALYSIS
¶ 10 Defendant contends that the trial court failed to properly admonish him under Rule 605(c)
and that, therefore, this court should excuse his failure to file a motion to withdraw his guilty plea
and remand to the trial court for proper admonishments. The State responds that the trial court
substantially complied with Rule 605(c), and the appeal should be dismissed because defendant
never filed a motion to withdraw his plea. We agree with the State.
¶ 11 Generally, when a defendant fails to file a timely motion to withdraw his guilty plea under
Rule 604(d), the appellate court must dismiss the appeal. People v. Flowers, 208 Ill. 2d 291, 301
(2003). However, dismissal of an appeal based on a defendant’s failure to file the requisite motion
would violate due process if the defendant did not know that filing the motion was necessary. Id.
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2022 IL App (2d) 200598-U
¶ 12 To safeguard the defendant’s right to review of his or her plea, Rule 605(c) provides that,
when a sentence is imposed after a negotiated guilty plea, the defendant must be admonished
substantially as follows:
“(1) that the defendant has a right to appeal;
(2) that prior to taking an appeal the defendant must file in the trial court, within 30
days of the date on which sentence is imposed, a written motion asking to have the
judgment vacated and for leave to withdraw the plea of guilty, setting forth the grounds for
the motion;
(3) that if the motion is allowed, the plea of guilty, sentence and judgment will be
vacated and a trial date will be set on the charges to which the plea of guilty was made;
(4) that upon the request of the State any charges that may have been dismissed as
a part of a plea agreement will be reinstated and will also be set for trial;
(5) that if the defendant is indigent, a copy of the transcript of the proceedings at
the time of the defendant’s plea of guilty and sentence will be provided without cost to the
defendant and counsel will be appointed to assist the defendant with the preparation of the
motions; and
(6) that in any appeal taken from the judgment on the plea of guilty any issue or
claim of error not raised in the motion to vacate the judgment and to withdraw the plea of
guilty shall be deemed waived.” Ill. S. Ct. R. 605(c) (eff. Oct.1, 2001).
¶ 13 The consequences of failing to file the proper motion under Rule 604(d) depend on whether
the defendant was properly admonished under Rule 605(c). If the trial court substantially complied
with Rule 605(c), the appeal must be dismissed. See People v. Jamison, 181 Ill. 2d 24, 28-29
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(1998). If not, the proper remedy is to remand to the trial court so that the defendant may be
properly admonished. Id. at 29-30.
¶ 14 Because Rule 605(c) uses the term “substantially,” the trial court is not required to recite
the exact language of the rule. People v. Dominguez, 2012 IL 111336, ¶ 22. Instead, the trial court
must “impart to a defendant largely that which is specified in the rule, or the rule’s ‘essence,’ as
opposed to ‘wholly’ what is specified in the rule.” Id. ¶ 19. So long as the defendant is properly
informed, or put on notice, of what he must do to preserve his right to appeal his guilty plea or
sentence, the admonitions are deemed sufficient to impart to defendant the essence or substance
of the rule and the court has substantially complied with it. Id. ¶ 22. However, admonishments are
insufficient if the trial court leaves out the substance of the rule. Id. Our supreme court has
determined that this means that the court must advise the defendant of all six items contained in
the rule, but the court need not recite the rule verbatim. Id. ¶¶ 15, 22. We review de novo a trial
court’s compliance with Rule 605(c). Id. ¶ 13.
¶ 15 Dominguez illustrates substantial compliance with the rule. There, the trial court
admonished the defendant of his “ ‘right to return to the courtroom within 30 days to file motions
to vacate [his] plea of guilty and/or reconsider your sentence.’ ” Id. ¶ 5. The court also stated: “ ‘In
the event the motions are denied, you have 30 days from denial to return to file a notice of appeal
the Court’s ruling. If you wish to do so and could not afford an attorney, we will give you an
attorney free of charge, along with the transcripts necessary for those purposes.’ ” Id. The trial
court also provided the defendant with a waiver form containing written admonishments, which
tracked the language of the rule. Id. ¶ 6. On appeal, the defendant argued in part that the court’s
admonishments implied that counsel was available only after postplea proceedings and that the
admonishments regarding the requisite postplea motions affirmatively misled him. Id. ¶¶ 42, 47.
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2022 IL App (2d) 200598-U
Our supreme court noted that, while the trial court “arguably did not explicitly inform defendant
that he was entitled to have an attorney appointed to help him prepare the postplea motions. ***
[T]he admonitions reflect that a court-appointed attorney would be available for defendant.” Id.
¶ 51. The court concluded that the trial court’s admonishments conveyed the substance of the rule
to the defendant and thus complied with Rule 605(c). Id.
¶ 16 The Dominguez court further noted that the written admonishments supplemented the more
general oral statements. Id. However, although there was no waiver form here, that fact does not
meaningfully distinguish this case from Dominguez, where the supreme court relied on both In re
J.T., 221 Ill. 2d 338 (2006), and People v. Dunn, 342 Ill. App. 3d 872 (2003), neither of which
involved written admonishments. Our supreme court noted that, in those cases, the trial court also
“arguably did not explicitly inform defendant that he was entitled to have an attorney appointed to
help him prepare the postplea motions,” but despite that imperfection in the oral admonishments,
they were nevertheless sufficient to convey the substance of the rule to defendant and thus
complied with Rule 605(c). Dominguez, 2012 IL 111336, ¶ 51.
¶ 17 Here the admonishments, while not verbatim of the rule, informed defendant of the
substance, or “essence,” of each required admonition in the rule. Defendant specifically argues
that the court erred by (1) telling him that he had the right to appeal his sentence without telling
him that he was required to file a motion asking the court to vacate the judgment of conviction;
and (2) failing to advise him that a motion to withdraw the plea was a mandatory prerequisite to
any appeal and, if granted, would entail vacatur of both the judgment and sentence. We disagree
that the court’s admonitions were deficient.
¶ 18 The court told defendant that he had a right to appeal and, if he decided to do so, “you have
to file a motion to withdraw your plea within 30 days.” The court also told him that, if the motion
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was granted, “all of the charges would be reinstated and set for trial.” While the admonitions did
not use the exact verbiage of Rule 605(c)—in that the court did not specify that the motion should
ask for vacatur of the judgment or that, if granted, both the judgment and sentence would be
vacated—the court made clear that a motion to withdraw the plea was a necessary prerequisite for
an appeal and, if granted, would result in reinstatement of the charges.
¶ 19 Defendant also argues that the admonitions were confusing regarding when counsel would
be appointed, indicating that counsel would only be appointed for appeal, and he further points to
statements he made indicating that he was confused about the process. But under Dominguez, the
admonitions concerning appointment of counsel were sufficient, and, in any event, counsel was
indeed appointed for assistance with defendant’s posttrial motions. Moreover, the record as a
whole also shows that defendant understood the requirement to file a motion to withdraw his plea
and that he explicitly told counsel that he did not want to do so.
¶ 20 Defendant also suggests that, because counsel did not file a Rule 604(d) certificate
confirming that he consulted with defendant to ascertain his contentions, the record lacks assurance
that counsel did so. But, because a motion to withdraw the plea was not filed, the lack of such a
certificate is inconsequential. People v. Albers, 2013 IL App (2d) 111103, ¶ 18. Further, the record
contains multiple statements from counsel that he consulted with defendant and that defendant did
not wish to withdraw his plea.
¶ 21 III. CONCLUSION
¶ 22 The trial court substantially admonished defendant under Rule 605(c). Thus, his failure to
file a Rule 604(d) motion to withdraw his plea as a prerequisite to appeal was not cured by the
admonition exception. Accordingly, we dismiss this appeal.
¶ 23 Appeal dismissed.
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