People v. Allison

825 N.E.2d 1217, 356 Ill. App. 3d 248, 292 Ill. Dec. 206, 2005 Ill. App. LEXIS 320
CourtAppellate Court of Illinois
DecidedMarch 28, 2005
DocketNo. 4-04-0074
StatusPublished
Cited by2 cases

This text of 825 N.E.2d 1217 (People v. Allison) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Allison, 825 N.E.2d 1217, 356 Ill. App. 3d 248, 292 Ill. Dec. 206, 2005 Ill. App. LEXIS 320 (Ill. Ct. App. 2005).

Opinion

PRESIDING JUSTICE COOK

delivered the opinion of the court:

In December 2003, the trial court resentenced defendant, Alisha Allison, to six years in prison after revoking her probation for burglary. On appeal, Allison claims the trial court violated her sixth amendment right to counsel (U.S. Const., amend. VI) when it denied her motion to reduce her sentence without first appointing counsel.

We affirm.

I. BACKGROUND

In June 2001, Allison was charged with residential burglary and criminal damage to property but pleaded guilty to a reduced charge of burglary in exchange for a sentence of probation. In November 2001, the trial court sentenced her to time served (157 days) and 37 months’ probation. In January 2003, the State filed a petition to revoke probation, claiming Allison failed to meet many terms of her probation. In April 2003, Allison admitted the allegations in the petition to revoke probation; and in June 2003, the court resentenced her to 48 months’ probation and 12 months’ work release. In September 2003, the State filed a second petition to revoke probation, alleging Allison violated the terms of her work release. Allison admitted these allegations; and in October 2003, the court resentenced her to the Department of Corrections for 6 years with credit for 258 days served. Within 30 days of her sentence, Allison filed a pro se motion for reduction of sentence. In December 2003, the court denied the motion without a hearing.

On appeal, Allison claims her sixth amendment right to counsel was denied when the trial court denied her motion to reduce her sentence without first appointing counsel. She contends the motion to reduce a sentence is a “critical stage” of criminal proceedings triggering her right to the assistance of counsel. In reply, the State makes two arguments. First, because the court advised Allison that an attorney would be appointed to assist her in filing a motion to reduce the sentence if she requested assistance, she is bound by her knowing and voluntary decision to file the motion pro se. Second, the court’s determination whether to grant Allison’s motion to reduce the sentence was not a “critical stage,” and no absolute right to counsel attached to it.

II. ANALYSIS

First, we address the State’s argument that Allison knowingly and voluntarily decided to file the motion pro se. Following the imposition of sentence, the trial court admonished Allison as follows:

“Ms. Allison, this is a final and appealable order. You have a right to appeal the finding and sentence I’ve just imposed. However, before you can appeal the finding and sentence, you must first file in this court a written motion asking for me to reconsider the sentence or to withdraw your admission. *** If you wish to be assisted by counsel in preparation of these motions and can’t afford one, one will be provided for you at no cost.”

The State points to People v. Creek, 112 Ill. App. 3d 1081, 446 N.E.2d 555 (1983), in support of its contention that a defendant who is properly admonished as to the availability of appointed counsel is bound by his or her knowing and voluntary decision to file a motion to reduce the sentence pro se. In response, Allison offers People v. Ledbetter, 174 Ill. App. 3d 234, 528 N.E.2d 375 (1988), for the proposition that when a defendant has already been declared indigent and appointed counsel in the prior proceedings, it is reasonable for the defendant to believe counsel would automatically be appointed for her at the postsentencing stage.

In Creek, the defendant pleaded guilty to attempted murder. The trial court admonished him as to his right to appeal after filing a motion to vacate the judgment and to withdraw the plea and advised him of his right to have counsel appointed to assist with these motions. Despite the admonishments, the defendant filed a pro se notice of appeal within 30 days of the sentencing. Sometime much later, the appellate defender’s office was notified of the defendant’s desire to appeal. Well outside the 30 days, the defendant then filed a motion to withdraw his plea of guilty and have the judgment vacated. At this time, a local attorney was appointed, and he filed to amend the motion to withdraw the plea and vacate the judgment and moved to dismiss the appeal. The appeal was dismissed, but the trial court denied the motion to amend because the original motion was not filed within 30 days of his sentencing. The defendant’s sole contention on appeal was that the failure of the circuit court to notify the office of the State Appellate Defender of its initial appointment to represent him deprived him of the assistance of counsel.

On appeal, this court held the failure of the trial court to notify the public defender’s office of its appointment to represent defendant was harmless error and did not deprive him of assistance of counsel, as the defendant decided to proceed pro se despite the admonishment as to the availability of counsel. Creek, 112 Ill. App. 3d at 1085-86, 446 N.E.2d at 558. This court noted “the defendant elected to pursue his appeal of the judgment entered on his guilty plea in a manner contrary to that delineated in the trial court’s admonishment[,] which he presumably understood.” Creek, 112 Ill. App. 3d at 1085, 446 N.E.2d at 558.

Five years later, this court found that a trial court erred in not appointing counsel for a defendant who had moved pro se to withdraw a guilty plea as the court failed to ascertain whether the defendant was waiving his right to counsel in connection with the motion. Ledbetter, 174 Ill. App. 3d at 238, 528 N.E.2d at 378. This court held that Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)) requires that counsel be appointed to assist an indigent defendant with a motion to vacate a guilty plea. Ledbetter, 174 Ill. App. 3d at 235, 528 N.E.2d at 375-76. In reaching this finding, this court noted that Rule 604(d) had several requirements and strict guidelines, one of which is that the trial court must appoint counsel for a defendant unless it finds the defendant knowingly and intelligently waives the right to appointed counsel. Ledbetter, 174 Ill. App. 3d at 236-37, 528 N.E.2d at 376-77.

In Creek, the defendant pleaded guilty, was sentenced, and then attempted pro se to appeal without filing the necessary motions under Rule 604(d). In Ledbetter, the defendant pleaded guilty, was sentenced, and then attempted pro se to withdraw the guilty plea under Rule 604(d). In this case, Allison pleaded guilty; was sentenced to probation; had her probation revoked; was sentenced; and filed a motion to reconsider the sentence, claiming it was excessive. Because Allison’s appeal was from a sentence imposed following her admission to a petition to revoke probation, Rule 604(b), not Rule 604(d), applies.

This court has held that the “purpose of Rule 604(d) would not be served by its application to [a case dealing with revocation of probation].” People v. Weatherall, 131 Ill. App. 3d 867, 869, 476 N.E.2d 489, 490 (1985).

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Cite This Page — Counsel Stack

Bluebook (online)
825 N.E.2d 1217, 356 Ill. App. 3d 248, 292 Ill. Dec. 206, 2005 Ill. App. LEXIS 320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-allison-illappct-2005.