People v. Dillon

NOTICE 2023 IL App (4th) 221099-U
This Order was filed under
FILED
Supreme Court Rule 23 and is September 7, 2023
NO. 4-22-1099
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1).
IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Marshall County
JEROME L. DILLON, ) No. 22CF34
Defendant-Appellant. )
) Honorable
) Bruce Fehrenbacher,
) Judge Presiding.

JUSTICE LANNERD delivered the judgment of the court.
Justices Cavanagh and Steigmann concurred in the judgment.

ORDER

¶1 Held: The appellate court dismissed defendant’s appeal where the trial court
substantially complied with Illinois Supreme Court Rule 605(c) (eff. Oct. 1, 2001)
and defendant failed to file a motion to withdraw his guilty plea prior to pursuing
this appeal.

¶2 On November 20, 2022, defendant, Jerome L. Dillon, entered a negotiated guilty

plea to unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2022)).

Defendant failed to file a motion to withdraw his guilty plea pursuant to Illinois Supreme Court

Rule 604(d) (eff. July 1, 2017). On December 20, 2022, defendant timely filed a notice of appeal.

On appeal, he seeks remand based upon the trial court’s alleged failure to properly admonish him

under Illinois Supreme Court Rule 605(c) (eff. Oct. 1, 2001). We dismiss the appeal.

¶3 I. BACKGROUND
¶4 Initially, defendant was charged with unlawful delivery of more than 100 but less

than 400 grams of methamphetamine (720 ILCS 646/55(a)(1) (West 2022)). In November 2022,

the State filed an additional count, charging the defendant in count II with unlawful possession of

less than 15 grams of a controlled substance, methamphetamine (720 ILCS 570/402(c) (West

2022)).

¶5 On the same day, defendant entered a negotiated guilty plea to count II, unlawful

possession of a controlled substance. Defendant was sentenced to 24 months’ first offender

probation (id. 410 et seq. (West 2022)) and 136 days in the Marshall County jail with credit for

time served in exchange for the State dismissing the unlawful delivery of methamphetamine

charge.

¶6 Following defendant’s guilty plea, the trial court admonished defendant as follows:

“Even though you have pled guilty, you have a right to appeal. You would

first need to file with this [c]ourt a motion to withdraw your plea of guilty. You

would need to do that within 30 days of today’s date and in writing. You would

need to include in that motion all grounds you have in support of it.

You have a right to an attorney. If you can’t afford an attorney, an attorney

would be appointed to represent you. You have a right to a transcript of any

proceeding. If you can’t afford a transcript, a free copy of the transcript would be

provided to you.

Do you understand those rights?”

Defendant acknowledged he understood.

¶7 The State then added:

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 “[D]efendant should be aware, because Count Two is a Class Four felony, if he

would violate the terms of his probation, the State could elect to file a petition to

revoke [probation]. *** [I]f the State was successful, he could face one to three

years in the Illinois Department of Corrections and up to a $25,000 fine.”

Subsequently, the trial court asked defendant if he understood “all of that,” and defendant

acknowledged he did.

¶8 No postjudgment motions were filed.

¶9 This appeal followed.

¶ 10 II. ANALYSIS

¶ 11 On appeal, defendant argues the trial court failed to properly admonish him under

Rule 605(c). Specifically, defendant contends the court did not give the subsection (c)(3), (4), and

(6) admonishments. Therefore, defendant maintains the matter should be remanded to the trial

court for new Rule 605(c) admonishments and postplea proceedings that strictly comply with Rule

604(d).

¶ 12 The State responds the court substantially advised defendant under Rule 605(c) and

defendant was provided with sufficient information to timely file his Rule 604(d) motion.

Consequently, the State maintains defendant’s appeal should be dismissed because he forfeited his

appeal rights through his failure to comply with the Rule 604(d) requirement to file a motion to

withdraw his negotiated guilty plea prior to filing his notice of appeal.

¶ 13 A. Rule 604(d)

¶ 14 Rule 604(d) provides, in pertinent part, the following:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the

defendant, within 30 days of the date on which sentence is imposed, files in the trial

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 court a motion to reconsider the sentence, if only the sentence is being challenged,

or, if the plea is being challenged, a motion to withdraw the plea of guilty and vacate

the judgment. Ill. S. Ct. R. 604(d) (eff. July 1, 2017).

¶ 15 A defendant who fails to file a Rule 604(d) motion may not pursue a direct appeal.

People v. Wilk, 124 Ill. 2d 93, 107, 529 N.E.2d 218, 223 (1988) (stating a Rule 604(d) motion is a

condition precedent to an appeal from a guilty plea). Failure to file a Rule 604(d) motion does not

remove jurisdiction from the reviewing court; rather, it precludes the reviewing court from

considering the appeal. People v. Crump, 344 Ill. App. 3d 558, 562, 801 N.E.2d 1, 4 (2003).

¶ 16 However, the “admonition exception” may apply “where [the] trial court has failed

to issue Rule 605(b) admonitions, the appellate court may entertain an appeal from a sentence

despite [a] defendant’s noncompliance with the written-motion requirement of Rule 604(d).”

People v. Foster, 171 Ill. 2d 469, 473, 665 N.E.2d 823, 825 (1996). Although in Foster, this

exception applied to Rule 605(b) admonishments, the “admonition exception” also applies to

alleged violations of Rule 605(c). People v. Lloyd, 338 Ill. App. 3d 379, 384, 788 N.E.2d 1169,

1172-73 (2003) (citing People v. Munoz, 319 Ill. App. 3d 822, 824, 746 N.E.2d 903, 905 (2001)).

¶ 17 Therefore, we examine whether the trial court substantially advised defendant

under Rule 605(c). Compliance with Rule 605(c) is reviewed de novo. People v. Breedlove, 213

Ill. 2d 509, 512, 821 N.E.2d 1176, 1178 (2004).

¶ 18 B. Rule 605(c)

¶ 19 The admonishments required by Rule 605(c) in cases involving a negotiated guilty

plea are as follows:

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 “In all cases in which a judgment is entered upon a negotiated plea of guilty, at the

time of imposing sentence, the trial court shall advise the defendant 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 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 reconsider the sentence or 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).

¶ 20 Rule 605(c) does not require the trial court to “ ‘completely’ ” inform a defendant

of the requirements, “nor does it say that the court must ‘strictly read verbatim’ from the rule.

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Rather, it uses the term ‘substantially advise.’ ” People v. Dominguez, 2012 IL 111336, ¶ 17, 976

N.E.2d 983. To substantially advise a defendant under Rule 605(c), the trial court must advise a

defendant “in such a way that the defendant is properly informed, or put on notice, of what he must

do in order to preserve his right to appeal his guilty plea or sentence.” Id. ¶ 22. Therefore, “[s]o

long as the court’s admonitions were sufficient to impart to a defendant the essence or substance

of the rule, the court has substantially complied with the rule,” and “automatic remand is not

necessary.” Id. Incomplete admonishments by the court require remand “ ‘only where there has

been prejudice or a denial of real justice as a result of the inadequate admonishment.’ ” People v.

Landerman, 2018 IL App (3d) 150684, ¶ 60, 127 N.E.3d 809 (quoting People v. Henderson, 217

Ill. 2d 449, 466, 841 N.E.2d 872, 881 (2005)).

¶ 21 In support of his contention the trial court’s admonishments did not comply with

Rule 605(c), defendant cites People v. Gougisha, 347 Ill. App. 3d 158, 807 N.E.2d 515 (2004),

and People v. Perry, 2014 IL App (1st) 122584, 23 N.E.3d 424.

¶ 22 The Gougisha court found the trial court’s admonishments failed to substantially

comply with Rule 605(c). Gougisha, 347 Ill. App. 3d at 163. In Gougisha, the trial court failed to

admonish the defendant of subsections (c)(3), (4), and (6). Id. The court noted, “Most significantly,

the trial court completely failed to advise [the] defendant that she had a right to appeal.” Id. at 162.

Although the trial court had informed the defendant she had 30 days to file a motion to withdraw

her guilty plea, the court “did not tell [the] defendant that her motion [to withdraw the guilty plea]

had to be filed prior to filing an appeal.” Id. Thus, her failure to file a motion to withdraw her

guilty plea was excused. Id. at 163.

¶ 23 The Perry court also found the trial court’s Rule 605(c) admonishments

“insufficient.” Perry, 2014 IL App (1st) 122584, ¶ 17. The court noted admonishments under

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subsections (c)(4) and (6) were not given to the defendant. Id. ¶ 16. The court also found the trial

court’s admonishments pertaining to subsection (c)(2) were “brief and at times unclear,” implying

the defendant “had 30 days to file a direct appeal.” (Emphasis in original) Id. ¶ 17. Specifically,

the court stated, “ ‘Sir, you have the right to appeal; that has to be filed within 30 days of today’s

date.’ ” Id. The reviewing court noted the trial court’s subsequent reference to a motion to

withdraw the guilty plea “lacked the specificity necessary to resolve any ambiguity” in the court’s

implied admonishment regarding 30 days to file a direct appeal. Id. Thus, because the trial court’s

admonishments failed to substantially advise the defendant of the process to appeal, his failure to

first file a motion to withdraw his guilty plea was excused. Id.

¶ 24 C. This Case

¶ 25 While the issue presented here is the same, we find Gougisha and Perry factually

distinguishable from this case. In all three cases, the question presented is whether the

admonishments given by the trial court substantially advised defendant of the basic procedures he

needed to follow to perfect his appeal, including filing a timely motion to withdraw his guilty plea

pursuant to Rule 604(d) prior to filing a timely notice of appeal pursuant to Illinois Supreme Court

Rule 606(b) (eff. July 1, 2017). Thus, to substantially comply with Rule 605(c), the court needed

to inform defendant “what he must do in order to preserve his right to appeal his guilty plea.”

Dominguez, 2012 IL 111336, ¶ 22.

¶ 26 Here, unlike Gougisha, the trial court advised defendant of his right to appeal. The

court was explicit that prior to filing an appeal, defendant “would first need to file with [the trial

court] a motion to withdraw [his] plea of guilty” and do so in writing within 30 days. Additionally,

unlike Perry, the court’s admonishments were not ambiguous and did not imply defendant had 30

days to file a direct appeal from his guilty plea before filing the requisite Rule 604(d) motion.

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¶ 27 We find this matter similar to People v. Newingham, 2023 IL App (4th) 220655-U.

In Newingham, the defendant entered into a negotiated plea agreement and was sentenced to three

years’ imprisonment for burglary. Id. ¶ 2. The defendant did not file any postjudgment motions.

Id. ¶ 8. On appeal, the defendant argued the trial court’s Rule 605(c) admonishment on subsection

(c)(2) was unclear, the admonishment on subsection (c)(5) was only partially given, and the

admonishments given on subsections (c)(3), (4), and (6) were not given at all. Id. ¶ 15. We held

the trial court substantially complied with Rule 605(c) when it advised the defendant “that he must

file a motion to withdraw his guilty plea in order to appeal.” Id. ¶ 26.

¶ 28 Here, like in Newingham, defendant was put on notice by the trial court that to

preserve his right to an appeal, he must first file a motion to withdraw his guilty plea. The court’s

admonishment was not ambiguous and was sufficient to put defendant “on notice that he could

challenge his guilty plea, and that some action on his part within 30 days was necessary if he

wished to appeal.” In re J.T., 221 Ill. 2d 338, 348, 851 N.E.2d 1, 6-7 (2006).

¶ 29 Defendant was substantially advised of his appeal rights, especially the necessary

first step of filing a motion to withdraw his guilty plea. The “missed verbiage” of subsections

(c)(3), (4), and (6) “did not prejudice defendant in his pursuit of post-sentencing relief.” Crump,

344 Ill. App. 3d at 563 (holding the trial court substantially complied with Rule 605(c) where the

court failed to admonish the defendant of subsections (c)(4) and (6)). Defendant’s failure to comply

with Rule 604(d) is not ameliorated by the trial court’s failure to recite all of the Rule 605(c)

subsections verbatim because he was specifically admonished he needed to file a motion to

withdraw his guilty plea to preserve his right to appeal. See People ex rel. Alvarez v. Skryd, 241

Ill. 2d 34, 40, 944 N.E.2d 337, 342 (2011) (“Where a defendant has failed to file a motion to

withdraw the guilty plea, the appellate court must dismiss the appeal.”).

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¶ 30 We conclude the trial court advised defendant that he must file a motion to

withdraw his guilty plea to preserve his right to appeal. Thus, the court substantially complied with

Rule 605(c).

¶ 31 III. CONCLUSION

¶ 32 For the reasons stated, defendant forfeited his right to appeal and, consequently, we

dismiss this appeal.

¶ 33 Appeal dismissed.

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