People v. Holcomb

2022 IL App (3d) 210038

Opinion filed September 15, 2022
____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2022

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Tazewell County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-21-0038
v. ) Circuit No. 18-CF-210
)
TERRY W. HOLCOMB, ) Honorable
) Katherine S. Gorman,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________

PRESIDING JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
Justices Holdridge and Peterson concurred in the judgment and opinion.
____________________________________________________________________________

OPINION

¶1 Defendant, Terry W. Holcomb, appeals his convictions and sentences for unlawful

possession of methamphetamine with intent to deliver and unlawful possession of

methamphetamine precursor. Defendant entered a negotiated guilty plea that allowed him to

participate in the drug court program, but provided that if he failed to successfully complete the

program he would be sentenced to prison. Defendant was subsequently dismissed from the drug

court program and sentenced to concurrent terms of 12 years’ imprisonment per his plea

agreement. He argues that his sentences are void and that he was not properly admonished pursuant

to Illinois Supreme Court Rule 605(c) (eff. Oct. 1, 2001). Although his sentences are not void, we
 remand the cause in order for defendant to be properly admonished and given the opportunity to

file a postplea motion under Illinois Supreme Court Rule 604(d) (eff. July 1, 2017).

¶2 I. BACKGROUND

¶3 The State charged defendant with unlawful possession of methamphetamine with intent to

deliver (720 ILCS 646/55(a)(1) (West 2018)) and unlawful possession of methamphetamine

precursor (id. § 20(a)(1)). On March 27, 2019, defendant pled guilty to both charges pursuant to a

negotiated plea. In exchange for the plea, the State advised the court that it was “asking that the

Court stay sentencing and allow the Defendant to go into the Tazewell County Drug Court

program.” The State further noted that the parties had come to an agreed sentence of concurrent

terms of 12 years’ imprisonment, but if defendant successfully completed the drug court program,

the 12-year sentences would not be imposed. It also explained that if defendant failed to complete

the drug court program, he would be sentenced to the agreed 12 years’ imprisonment.

¶4 The court noted that, “before I sentence [defendant] or stay sentencing,” it was

admonishing him of his rights. The court advised defendant it was going to sentence him to 12

years’ imprisonment but the sentence would be stayed in lieu of him participating in the drug court

program. After further admonishing defendant, the court found the plea to be voluntary and

concurred with the plea agreement. It stated, “I will enter judgment, but I’ll stay any further

sentencing pending your participation and hopeful successful completion of the Drug Court

program.” The court did not provide Rule 605(c) admonishments at that time.

¶5 A written form order from that date documents the court’s acceptance of the plea and

provides that the court was entering judgment on the plea and convicting defendant. It further

provides that defendant was sentenced to 12 years’ imprisonment, but execution of the order was

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 “stayed until further order” and “defendant is admitted to Drug Court.” The form order did not

indicate that defendant was informed of his appeal rights.

¶6 Another written order, entered at that time, addressing defendant’s participation in the drug

court program indicated that he would enter the program “[p]ending sentencing.” It sets forth

various conditions and advises that failure to comply with those conditions may result in

termination from the drug court program and sentencing on the offenses. The order contains a

statement that “[b]y agreement of the parties, the defendant’s sentencing will be continued pending

the outcome of the defendant’s treatment.” Defendant signed the order, indicating he agreed to the

rules set forth in the order.

¶7 Thereafter, defendant appeared for regular drug court status reviews, and the court imposed

various sanctions due to incidents occurring during his participation in the program. In June 2020,

the State filed a petition seeking to terminate defendant’s participation in the drug court program

and have him sentenced in accordance with the plea agreement. It filed an amended petition in

September 2020. Defendant admitted to the violations alleged in the State’s amended petition, and

the matter proceeded to a sentencing hearing wherein the court was to determine whether defendant

should continue in the drug court program and, if not, sentence him.

¶8 At the hearing in December 2020, the court determined that defendant would not be

allowed to continue to participate in the drug court program. Despite defense counsel’s request for

a sentence of 6 years’ imprisonment, the court sentenced defendant to the previously agreed

concurrent terms of 12 years’ imprisonment. Thereafter, the court admonished defendant:

“Though you voluntarily entered an admission, you still have the right to appeal.

Prior to taking an appeal you must first file in the trial court within 30 days of the

date on which the sentence is imposed a written motion asking to have the trial

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 court reconsider the sentence or have the judgment vacated and for leave to

withdraw the admission, setting forth the reasons or grounds for the motion.

If the motion is allowed, the sentence will be modified or the admission,

sentence, and judgment will be vacated and a hearing date would be set. Upon

request of the State, any charges may be reinstated.

If you’re indigent, a copy of the transcript of the proceedings at the time of

your admission will be provided without cost to you and counsel will be appointed

to assist you with the preparation of the motion.

In any appeal taken from the judgment on the plea and/or admission, any

issue or claim of error not raised in the motion to reconsider the sentence or vacate

the judgment shall be deemed waived.”

The court entered the written judgment and sentence on that date. The written order indicated it

shall be executed without delay and provided that defendant was informed of his appeal rights.

Defendant did not file a motion to withdraw his guilty plea. Defendant appeals.

¶9 II. ANALYSIS

¶ 10 Defendant raises various interrelated arguments on appeal. Foremost, defendant argues that

his sentence is void because it is a hybrid sentence that was stayed for an indefinite period of

time. Further, defendant argues that he was never provided proper admonishments under Illinois

Supreme Court Rule 605(c) (eff. Oct. 1, 2001) as to when he needed to move to withdraw his

guilty plea such that he should not be penalized for failing to file a timely motion to withdraw his

plea. In support, he notes that he was not provided any admonishments regarding his appeal rights

at the time he entered his plea, and it was unclear whether the 30-day time limit to file the motion

to withdraw ran from the date he pled guilty or from the date he was discharged from the drug

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 court program. Additionally, defendant argues that the combination of the indefinite stay of his

sentence and lack of admonishments deprived the circuit court of jurisdiction to impose the 12-

year prison sentences.

¶ 11 The State argues that this court lacks jurisdiction to hear the appeal because defendant

failed to file a motion to withdraw his guilty plea as required by Illinois Supreme Court Rule

604(d) (eff. July 1, 2017). Additionally, the State argues that defendant’s sentence is not void and

he was properly admonished.

¶ 12 A. Jurisdiction

¶ 13 A defendant’s failure to file a motion to withdraw guilty plea “does not deprive the

appellate court of jurisdiction” but generally precludes the appellate court from considering the

appeal on the merits, and it should be dismissed. People v. Flowers, 208 Ill. 2d 291, 301 (2003).

However,

“[i]f the trial court fails to give the admonishments set forth in Rule 605 and the

defendant subsequently attempts to appeal without first filing the motions required

by Rule 604(d), the appeal is not dismissed. Instead, the appropriate course is to

remand the cause to the trial court for strict compliance with Rule 604(d).” Id.

Thus, this court has jurisdiction, and the matter is not dismissed because the circuit court failed to

give defendant proper Rule 605(c) admonishments (see infra ¶¶ 18-21).

¶ 14 B. Voidness

¶ 15 “ ‘[A] party may challenge a judgment as being void at any time, either directly or

collaterally, and the challenge is not subject to forfeiture or other procedural restraints.’ ” People

v. Castleberry, 2015 IL 116916, ¶ 15 (quoting LVNV Funding, LLC v. Trice, 2015 IL 116129 ¶ 38).

A judgment is void if it was entered by a court lacking jurisdiction or “was based on a statute that

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 is facially unconstitutional and void ab initio.” People v. Abdullah, 2019 IL 123492, ¶ 13.

Defendant does not argue that his convictions or sentences were based on a facially

unconstitutional statute. Turning to jurisdiction, the court in Belleville Toyota, Inc. v. Toyota Motor

Sales, U.S.A., Inc., 199 Ill. 2d 325, 334 (2002), defined subject matter jurisdiction as “the power

of a court to hear and determine cases of the general class to which the proceeding in question

belongs” and determined this jurisdiction extends to all justiciable matters. Here, the court had

subject matter jurisdiction, as it had the power to hear and determine criminal proceedings. See

Castleberry, 2015 IL 116916, ¶ 18 (court’s subject matter jurisdiction derives from article VI,

section 9, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 9)). Additionally, the court had

personal jurisdiction over defendant as he personally appeared before it. See People v. Woodall,

333 Ill. App. 3d 1146, 1156 (2002) (“A criminal defendant confers personal jurisdiction upon the

trial court when he appears and joins the issues with a plea.”).

¶ 16 Although defendant acknowledges that Castleberry, 2015 IL 116916, ¶ 19, abolished the

void sentence rule, he argues that the circuit court in this matter lost jurisdiction because his

sentence was indefinitely stayed. In doing so, he cites to People v. Penn, 302 Ill. 488, 494 (1922),

for the proposition that “[i]f sentence is indefinitely suspended the court loses jurisdiction, and a

judgment subsequently entered is void.” Even if case law subsequent to Penn did not clearly set

forth that the circuit court had jurisdiction (see supra ¶ 15), Penn would not lead to the conclusion

that it lacked jurisdiction under the circumstances of this case. First, defendant does not delineate

whether the court purportedly lost subject matter or personal jurisdiction. Additionally,

defendant’s sentence was not indefinitely suspended; rather, his sentencing was continued for an

indeterminate amount of time while defendant participated in the drug court program. Last, Penn

further provided that “[w]hether a postponement is rightful depends not upon its length or

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 definiteness, nor upon whether it extends beyond the term, but upon its purpose and character.”

Penn, 302 Ill. at 494-95. Here, the purpose of the postponement was to allow defendant to

participate in the drug court program. The Drug Court Treatment Act specifically acknowledges

that criminal proceedings may be suspended or stayed during participation. See, e.g., 730 ILCS

166/35(a) (West 2018) (indicating that when a defendant is dismissed from the drug court program

the court may reinstate criminal proceedings). Notably, defendant continued to regularly appear

before the court during his participation in the drug court program. Based on the foregoing,

defendant’s convictions and sentences are not void.

¶ 17 C. Rule 605(c) Admonishments

¶ 18 Rule 605(c) provides that following a negotiated guilty plea, “at the time of imposing

sentence,” the court must substantially advise defendant:

“(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;

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 (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).

Additionally, Rule 604(d) requires that “[n]o appeal shall be taken upon a negotiated plea of guilty

challenging the sentence as excessive unless the defendant, within 30 days of the imposition of

sentence, files a motion to withdraw the plea of guilty and vacate the judgment.” Ill. S. Ct. R.

604(d) (eff. July 1, 2017). In cases, such as the instant one, where a defendant enters a negotiated

guilty plea “Rule 605(c) is a necessary corollary to Rule 604(d) because Rule 605(c) mandates the

trial judge to admonish defendant regarding the requirements of Rule 604(d).” See People v. Dunn,

342 Ill. App. 3d 872, 877 (2003).

¶ 19 In this matter, the sentence was not imposed on March 27, 2019, when defendant pled

guilty. Rather, sentencing was continued pending defendant’s participation in the drug court

program and ultimately took place at the time defendant was dismissed from the program in

December 2020. At that time, the court imposed the agreed to sentences of 12 years’ imprisonment.

Therefore, defendant was required to be admonished per Rule 605(c) when his 12-year sentences

were imposed and the 30-day time limit in Rule 604(d) for filing a motion to withdraw guilty plea

began.

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¶ 20 We acknowledge that some language utilized by the circuit court was imprecise and

indicates that the sentence was imposed at the time defendant pled guilty. Specifically, the written

order entered following the guilty plea indicates that defendant was sentenced but the execution of

that order was stayed. However, viewing that order in context with the transcript of the plea and

the written drug court order, it becomes clear that the sentence was not imposed but instead

sentencing was continued. Particularly, the State, when advising the court of the terms of the plea,

explicitly requested that sentencing be stayed to allow defendant to enter the drug court program.

Notably, whether the 12-year agreed sentences would ultimately be imposed or defendant’s

participation in the drug court program would be the extent of his sentence was contingent on

defendant’s successful completion of the drug court program, further indicating that the sentence

was not imposed at the time defendant pled guilty. Additionally, the court orally noted that it was

staying further sentencing pending defendant’s participation in the drug court program.

Importantly, the written order regarding defendant’s participation in the drug court program

provided that defendant was participating pending sentencing and that his sentencing was

continued pending the outcome of his participation. The outcome of defendant’s participation was

decided in December 2020 when he was dismissed from the program. At that time, the court lifted

the stay of the criminal proceedings, conducted the sentencing hearing, and imposed the previously

agreed to sentence. See, e.g., 730 ILCS 166/35(a) (West 2018) (providing that defendant could be

terminated from the drug court program and the court “may reinstate criminal proceedings”).

¶ 21 After imposing the sentence, the court proceeded to provide defendant his appeal rights

according to Rule 605(c). However, the court’s admonishments only referenced defendant’s

admission—which was to the violations of the drug court program—rather than defendant’s guilty

plea. This resulted in defendant not receiving proper Rule 605(c) admonishments, including the

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 admonishment that, as required by Rule 604(d), in order to appeal he must file a motion to

withdraw his guilty plea. Because defendant was not properly admonished and attempted to appeal

without filing the motion to withdraw his plea as required by Rule 604(d), “the appropriate course

is to remand the cause to the trial court for strict compliance with Rule 604(d).” Flowers, 208 Ill.

2d at 301. Therefore, we remand the matter so defendant can be properly admonished under Rule

605(c) and given the opportunity to comply with the requirements of Rule 604(d) to file a motion

to withdraw guilty plea, if he so chooses.

¶ 22 III. CONCLUSION

¶ 23 Based on the foregoing, we remand the cause to the circuit court of Tazewell County for

compliance with Rule 605(c) and to allow defendant the opportunity to file a motion under Rule

604(d).

¶ 24 Remanded.

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 People v. Holcomb, 2022 IL App (3d) 210038

Decision Under Review: Appeal from the Circuit Court of Tazewell County, No. 18-CF-
210; the Hon. Katherine S. Gorman, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Karalis, and Drew Charles Parsons,
for of State Appellate Defender’s Office, of Ottawa, for appellant.
Appellant:

Attorneys Stewart J. Umholtz, State’s Attorney, of Pekin (Patrick Delfino,
for Thomas D. Arado, and Jessica A. Theodoratos, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.

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