2021 IL App (1st) 200706-U No. 1-20-0706 Order filed December 10, 2021 Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 18 CR 06745 ) DEMOND BARNES, ) Honorable ) William Raines, Defendant-Appellant. ) Judge, presiding.
JUSTICE CONNORS delivered the judgment of the court. Presiding Justice Delort and Justice Hoffman concurred in the judgment.
ORDER
¶1 Held: Appeal dismissed where defendant failed to file a postplea motion prior to filing his notice of appeal, the trial court’s admonishments regarding the right to appeal substantially complied with Illinois Supreme Court Rule 605(c) (eff. Oct. 1, 2001), and the trial court did not err when it failed to construe his pro se notice of appeal as a request for counsel to assist in the preparation of a postplea motion.
¶2 Pursuant to a negotiated plea, defendant Demond Barnes pled guilty to one count of
aggravated battery with a firearm and was sentenced to 23 years in prison. Defendant did not file
a motion to withdraw his guilty plea, and instead filed a notice of appeal. On appeal, he contends No. 1-20-0706
that the trial court’s admonishments at the time of his plea did not substantially comply with Illinois
Supreme Court Rule 605(c) (eff. Oct. 1, 2001), and that, therefore, this court should remand for
proper admonishments and an opportunity for him to file a motion to withdraw his guilty plea as
required by Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). In the alternative, he contends
that the trial court erred when it failed to construe his pro se notice of appeal as a request for
counsel to assist in the preparation of a postplea motion in order to perfect the appeal. For the
reasons that follow, we dismiss defendant’s appeal.
¶3 Defendant’s conviction arose from a February 19, 2018, incident in Chicago during which
defendant, who was 17 years old, shot the victim six times. Following arrest, the State charged
defendant by indictment with three counts of attempted first degree murder, one count of
aggravated battery with a firearm, and two counts of aggravated unlawful use of a weapon.
¶4 Defendant first appeared in court on May 29, 2018. After several continuances, on July 31,
2019, defense counsel stated that the case was “up today for either plea or setting” and that the
defense was in negotiations with the State. The case was continued and called multiple times.
¶5 On February 19, 2020, after an Illinois Supreme Court Rule 402 (eff. July 1, 2012)
conference, the trial court described the plea offer to defendant, who confirmed that he understood.
The State nol-prossed all counts but count IV, which charged defendant with aggravated battery
with a firearm. The trial court explained to defendant that the remaining charge was “a Class X
felony and with an 85 percent sentencing range” with “[t]wenty-one at the bottom with 45 years.”
Defendant pled guilty to the charge. The trial court further admonished him regarding the plea and
the rights he was giving up by pleading guilty. The court also questioned him as to the free and
voluntary nature of his plea. The State presented a factual basis for the plea, to which the defense
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stipulated. The court found that the factual basis was sufficient to support the plea, accepted it, and
entered a “finding of guilty of aggravated battery personally discharging a firearm.” The parties
presented aggravation and mitigation, and the court imposed a sentence of 23 years in prison.
¶6 The trial court then advised defendant of his appeal rights as follows:
“You do have the right to appeal. Before you can appeal my decision within 30
days of today’s date you must file with the Clerk of the court a written motion to withdraw
your plea and vacate this judgment. In that motion you must state all the reasons why you
want to withdraw your guilty plea. If I grant your motion, I’ll set your guilty plea, sentence,
and judgment aside and set this case for trial. Those other charges, including that life
sentence murder charge would be reinstated and also set for trial. If I deny your motion,
you’ll have 30 days from the date of that motion to file a written notice of appeal. Let me
back up. All the charges would be reinstated, including that charge. Any issue or claim of
error—let me see. You have 30 days from the date of that denial to file a written notice of
appeal. Any issue or claim of error not raised in that motion to withdraw your plea of guilty
and vacate this judgment will be waived for appeal purposes. If you’re indigent a copy of
the transcript of the proceedings of today’s plea will be provided to you free of charge to
assist you in the preparation and an attorney would be provided to you free of charge to
assist you in that motion.”
The court asked defendant if he understood his appeal rights, and defendant answered that he did.
¶7 The court entered a written sentencing order on February 19, 2020. Defendant did not file
a motion to withdraw his plea. On March 18, 2020, he mailed a pro se document titled “Notice of
Appeal” to the circuit court clerk. In the notice, defendant recited that he had pled guilty and been
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sentenced, that he was requesting that the Office of the State Appellate Defender be appointed to
represent him, and that “there are meritorious issues to be raised on appeal,” including ineffective
assistance of counsel and eighth amendment violations under Miller v. Alabama, 567 U.S. 460
(2012), and People v. Othman, 2019 IL App (1st) 150823. The accompanying pro se proof of
service stated that a “NOTICE OF APPEAL” was attached.
¶8 On appeal, defendant contends that the trial court’s admonishments regarding his appeal
rights did not substantially comply with Rule 605(c) and that, therefore, this court should remand
for proper admonishments and an opportunity for him to file a Rule 604(d) motion to withdraw
his guilty plea. He argues that a valid basis for the withdrawal of his plea exists, as the trial court
committed numerous errors under Illinois Supreme Court Rule 402 (eff. July 1, 2012), which
governs guilty plea admonishments. In the alternative, he contends that the trial court erred when
it failed to construe his pro se notice of appeal as a request for counsel to assist in the preparation
of a Rule 604(d) postplea motion in order to perfect the appeal.
¶9 Under Rule 604(d), before a defendant may appeal a judgment entered upon a guilty plea,
he must first file a written postplea motion with the trial court within 30 days of the date of
sentencing. People v. Flowers, 208 Ill. 2d 291, 300 (2003). Depending on the type of plea entered,
the motion may request that the guilty plea be withdrawn and judgment vacated (negotiated plea)
or it may seek reconsideration of the sentence (open plea). Id. The filing of a Rule 604(d) motion
is a “condition precedent to an appeal from a judgment on a plea of guilty.” Id. at 300-01. Although
the lack of such a motion does not deprive the appellate court of jurisdiction, the failure to file a
timely Rule 604(d) motion precludes this court from considering an appeal on its merits. Id. at 301.
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Thus, in general, “Where a defendant has failed to file a written motion to withdraw his plea of
guilty or to reconsider his sentence, the appellate court must dismiss the appeal.” Id.
¶ 10 An exception to this general rule applies in cases where a defendant was not adequately
admonished pursuant to Rule 605(c). People ex rel. Alvarez v. Skyrd, 241 Ill. 2d 34, 41 (2011).
Rule 605(c) provides that, when judgment is entered upon a negotiated guilty plea, “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
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).
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¶ 11 The dismissal of an appeal based on a defendant’s failure to file a Rule 604(d) postplea
motion in the trial court would violate due process if the defendant did not know that filing of such
a motion was necessary. Skyrd, 241 Ill. 2d at 41 (citing Flowers, 208 Ill. 2d at 301). Thus, our
supreme court has “recognized an ‘admonition exception’ to Rule 604(d).” Id. Under this
exception, where the trial court “fails to give applicable Rule 605 admonishments and the
defendant attempts to appeal without first filing the motions required by Rule 604(d), the appeal
is not dismissed. Rather, the appellate court must remand the cause to the circuit court for strict
compliance with Rule 604(d).” Id.
¶ 12 As Rule 605(c) requires the trial court to “advise the defendant substantially” regarding its
contents, a “substantial compliance” standard applies in assessing whether the trial court’s
admonitions were sufficient. See People v. Dominguez, 2012 IL 111336, ¶¶ 15-22. Our supreme
court has explained that Rule 605(c) “does not require a strict verbatim” reading of its contents;
rather, “the 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. In other words, the trial
court must substantially advise a defendant under Rule 605(c) “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.”
Id. ¶ 22. “So 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.” Id. Whether a trial
court has substantially complied with Rule 605(c) is a matter this court reviews de novo. Id. ¶ 13.
¶ 13 Here, defendant did not file a postplea motion within 30 days of the trial court’s imposition
of sentence, and we therefore have no authority to consider the merits of his appeal. Flowers, 208
Ill. 2d at 301. Nevertheless, he contends that the admonition exception applies in his case because
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the trial court’s admonishments regarding his appeal rights did not substantially comply with Rule
605(c). He asserts that the trial court’s Rule 605(c) admonishments were “exceedingly confusing”
and constituted a “dizzying summation of the procedures required by Rule 604(d).”
¶ 14 Specifically, defendant argues that the court backtracked and failed to clarify the timing
for filing a motion to withdraw the guilty plea versus the timing for filing a notice of appeal (see
Rule 605(c)(2)). In addition, he argues, the trial court misstated the potential consequences of
withdrawing the plea when it inaccurately described the charges that could be reinstated as
including “that life sentence murder charge,” even though he had not been charged with murder
and was not necessarily facing a life sentence (see Rule 605(c)(4)). Defendant concludes that
because the trial court misstated several facts related to the outcomes available to him after the
entry of his guilty plea and failed to clarify the timing of a motion to withdraw as opposed to a
notice of appeal, the trial court failed to convey the “essence” of the steps necessary to preserve
an appeal pursuant to Rule 604(d).
¶ 15 The State responds, and we agree, that the court substantially complied with Rule 605(c).
As noted above, Rule 605(c) provides that a trial court “shall advise the defendant substantially”
of six points, set out in subsections. Defendant only challenges the portions of the trial court’s
admonishments involving subsections (c)(2) and (c)(4). As such, we limit our discussion to those
subsections.
¶ 16 In subsection (c)(2), the rule provides that the trial court shall advise the defendant that
prior to taking an appeal, he 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. Ill. S. Ct. R. 605(c)(2) (eff. Oct. 1, 2001).
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Here, the trial court stated, “Before you can appeal my decision within 30 days of today’s date you
must file with the Clerk of the court a written motion to withdraw your plea and vacate this
judgment. In that motion you must state all the reasons why you want to withdraw your guilty
plea.”
¶ 17 In defendant’s view, the trial court’s statement “made it seem as though the next step was
for [defendant] to ‘appeal [the] decision within 30 days.’ ” He argues that such an admonishment
was not necessarily accurate, as a notice of appeal could be filed more than 30 days later, following
the denial of a timely motion to withdraw the plea. He further argues that although the court stated
he was required to file a motion to withdraw the plea, it was not clear from the court’s statement
that such a motion also had to be filed within 30 days.
¶ 18 Defendant also asserts that after making the above statement, the court then incorrectly
stated that if the motion was denied, “you’ll have 30 days from the date of that motion to file a
written notice of appeal”; then “changed course” by describing the potential consequences of a
motion to withdraw being granted; and then returned to the topic of the timeline for appeal, stating,
“You have 30 days from the date of that denial to file a written notice of appeal.” In defendant’s
view, the last statement, referencing “denial,” was unclear because the court had just been
discussing the consequences of a postplea motion being granted. He maintains that the court failed
to clarify the timeline after backtracking and misstating the requirements to appeal and that,
therefore, it is understandable that he might have misunderstood those requirements.
¶ 19 We disagree with defendant’s interpretation of the trial court’s admonishment under
subsection (c)(2). As noted above, the trial court admonished defendant, “Before you can appeal
my decision within 30 days of today’s date you must file with the Clerk of the court a written
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motion to withdraw your plea and vacate this judgment. In that motion you must state all the
reasons why you want to withdraw your guilty plea.” Our focus is on this statement—not other
utterances that the court made afterwards—and whether it substantially conveyed the substance of
subsection (c)(2). In our view, it is clear from the court’s statement that prior to appealing,
defendant was required to file a written motion to withdraw his plea; that defendant was required
to take action within 30 days; and that defendant was required to include in his motion all the
grounds for withdrawing his plea. The court’s statement did not signal that the “next step” was for
defendant to file a notice of appeal, and we cannot find that the trial court’s Rule 605(c)(2)
admonishment was incorrect or fatally confusing. Rather, we find that it substantially complied
with the requirements of the rule.
¶ 20 In subsection (c)(4), the rule provides that the trial court shall advise the defendant 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. Ill. S. Ct. R. 605(c)(4) (eff. Oct. 1, 2001).
Here, the trial court stated, “Those other charges, including that life sentence murder charge would
be reinstated and also set for trial. If I deny your motion, you’ll have 30 days from the date of that
motion to file a written notice of appeal. Let me back up. All the charges would be reinstated,
including that charge.”
¶ 21 Defendant argues that the trial court misstated the potential consequences of withdrawing
the plea. Specifically, he notes that the trial court referenced “that life sentence murder charge” as
one of the charges that would be reinstated, even though he was never facing a murder charge nor,
necessarily, a life sentence. He maintains that a “jarring misstatement such as this might have
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further confused [him] or made him believe he could be subject to even harsher penalties than he
actually was if he were to withdraw his plea.”
¶ 22 The State argues that defendant’s argument is pure speculation and conjecture where he is
not claiming he actually was confused or believed he would be subjected to a harsher penalty by
withdrawing his plea. The State further argues that there is no mistaking that, when read in context,
the trial court’s reference to “that life sentence murder charge” was actually a reference to the
attempted murder charge.
¶ 23 In considering this particular admonishment, we need not decide between the positions
espoused by defendant or the State. This is because substantial compliance with Rule 605(c) may
be found even where a trial court completely omits a Rule 605(c)(4) admonishment. See People v.
Claudin, 369 Ill. App. 3d 532, 534 (2006); People v. Crump, 344 Ill. App. 3d 558, 563 (2003); but
see People v. Perry, 2014 IL App (1st) 122584, ¶¶ 16-17 (remanding where admonishments were
brief, unclear, and lacked any reference to subsections (c)(4) or (c)(6)). Here, the trial court did
not omit a subsection (c)(4) admonishment; rather, the court advised defendant that nol-prossed
charges would be reinstated and set for trial. Specifically, the court said that “[a]ll the charges
would be reinstated.” As such, we find substantial compliance with Rule 605(c)(4).
¶ 24 Finally, we are mindful of defendant’s argument that there is a valid basis for the
withdrawal of his plea because the trial court committed numerous errors under Illinois Supreme
Court Rule 402 (eff. July 1, 2012), which governs, inter alia, guilty plea admonishments, and that
the trial court’s Rule 605(c) admonishments must be viewed in light of the entire pre-plea
proceedings. He claims that, given the improper Rule 402 admonishments, “it is no surprise that
the trial court’s Rule 605(c) admonishments confused [him] and left him unable to comply
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properly with Rule 604(d).” As such, he asserts that the interests of justice require this court to
remand for proper admonishments and an opportunity for him to file a motion to withdraw his
plea.
¶ 25 Our review in this case is limited to addressing whether the “admonition exception” to Rule
604(d) applies due to a lack of substantial compliance with Rule 605(c) by the trial court. See
People v. Lloyd, 338 Ill. App. 3d 379, 386 (2003). Because defendant did not file a motion to
withdraw his guilty plea and is not excused from doing so, we will not address his argument
regarding the propriety or sufficiency of the Rule 402 guilty plea admonishments. See People v.
Jones, 2013 IL App (4th) 120300, ¶ 21.
¶ 26 After reviewing the record, we conclude that defendant was substantially admonished in
accordance with Rule 605(c). As such, the “admonition exception” did not excuse him from filing
a motion to withdraw his plea and vacate the judgment under Rule 604(d). Claudin, 369 Ill. App.
3d at 534. Instead of filing such a motion, defendant filed a notice of appeal, which was the wrong
procedure to perfect his appeal from his negotiated plea. Accordingly, defendant has forfeited his
right to a direct appeal, and we must dismiss the appeal. Id. at 535; Crump, 344 Ill. App. 3d at 563.
¶ 27 Defendant contends, in the alternative, that the trial court erred when it failed to construe
his pro se notice of appeal as a request for counsel to assist in the preparation of a postplea motion
in order to perfect the appeal. He argues that he mailed the document within 30 days of sentencing,
that it included allegations that he received ineffective assistance of counsel and that his sentence
was unconstitutional, and that, therefore, it indicated that he “wanted to withdraw his plea so he
could challenge his conviction and sentence.” Defendant maintains that trial courts should liberally
construe pro se filings and asserts that the only logical explanation for his filing was that he both
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desired to challenge the judgment and that he misunderstood the trial court’s instructions regarding
how to do so. He further argues that, even if this court finds the document does not reflect a desire
to withdraw his plea, fundamental fairness requires that we remand to allow him to clarify his
intent.
¶ 28 A trial court’s duty to inquire whether a defendant requires the assistance of appointed
counsel to prepare postplea motions and perfect an appeal is triggered either when a defendant
makes a verbal inquiry of the trial court during sentencing proceedings, or when he files a postplea
motion pursuant to Rule 604(d). People v. Merriweather, 2013 IL App (1st) 113789, ¶ 27. In this
case, defendant took neither of these actions. Instead, he filed a pro se document titled “Notice of
Appeal.”
¶ 29 We disagree with defendant’s assertion that his pro se notice of appeal indicated he wanted
to withdraw his plea. To the contrary, several of the document’s features reveal an intent to appeal.
Defendant hand-wrote “Notice of Appeal” both in the pleading’s caption and as its title, recited
that he had pled guilty and been convicted and sentenced, and stated that he was requesting the
Office of the State Appellate Defender be appointed to represent him. He further asserted that
“there are meritorious issues to be raised on appeal in his case,” including ineffective assistance of
counsel and eighth amendment violations under Miller, 567 U.S. at 460, and Othman, 2019 IL
App (1st) 150823. In addition, the accompanying hand-written, pro se proof of service stated that
a “NOTICE OF APPEAL” was attached.
¶ 30 Moreover, defendant did not inform the trial court orally that he wished to withdraw his
plea and he did not file a motion to that effect. We find no indication in the record or in defendant’s
pro se notice of appeal that he wished to withdraw his guilty plea. Rather, we find that the record
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shows defendant sought to directly appeal the trial court’s judgment. See Merriweather, 2013 IL
App (1st) 113789, ¶ 21 (rejecting contention that the content of a pro se document titled “notice
of appeal” was mislabeled and revealed the defendant’s desire to withdraw his guilty plea where
the filing stated that the defendant “gives notice that an appeal is taken from the order of
judgment,” alleged ineffective assistance of counsel, and asserted the State failed to carry its
burden of proof); see also People v. Frey, 67 Ill. 2d 77, 80-83 (1977) (where the appellants argued
their notices of appeal should have been considered motions to withdraw their guilty pleas, the
supreme court found the arguments “plainly untenable” because the filings “not only fail[ed] to
conform to the requirement of Rule 604(d),” but also did “not request the trial court to permit
withdrawal of the pleas, and request[ed] no action other than in matters relative to the appeal”).
We therefore reject defendant’s argument that the trial court had a duty to ascertain whether he
wanted the assistance of appointed counsel to prepare postplea motions and perfect his appeal, as
well as his argument that fundamental fairness requires us to remand to allow him to clarify his
¶ 31 In sum, as defendant failed to file a written Rule 604(d) postplea motion prior to filing his
notice of appeal, and as his failure to file a postplea motion is not excused by the “admonition
exception,” we must dismiss his appeal. Claudin, 369 Ill. App. 3d at 535; Crump, 344 Ill. App. 3d
at 563.
¶ 32 Appeal dismissed.
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