SECOND DIVISION December 12, 2006
No. 1-05-0458
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) KAVELL BRYANT, ) Honorable ) Vincent M. Gaughan, Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
In August of 2003 we sent this case back to the trial court
with a simple mandate: provide the defendant with proper Supreme
Court Rule 605(b) (188 Ill. 2d R. 605(b)) admonishments and give
him the opportunity to file a motion to withdraw his guilty plea.
People v. Bryant, No. 1-01-3013 (2003) (unpublished order under
Supreme Court Rule 23). What followed in the trial court was a
series of rulings that create an issue of first impression in
this State.
The main issue is whether the trial court erred in
reconsidering and vacating an order granting the defendant’s oral
motion to withdraw his guilty plea. We hold it did not.
BACKGROUND
Defendant Kavell Bryant pled guilty to first degree murder 1-05-0458
and was sentenced to 20 years in prison. Defendant failed to
file a written motion to withdraw his guilty plea as required by
Supreme Court Rule 604(d). 188 Ill. 2d R. 604(d). He did not
file a direct appeal. Defendant filed a pro se post-conviction
petition, which the trial court dismissed after a second-stage
hearing. Defendant appealed. We remanded the case to the trial
court with directions to admonish defendant in accordance with
Rule 605(b), and to allow him to file a motion to withdraw his
guilty plea if he so desired.
On remand, the trial court started to admonish defendant
pursuant to Rule 605(b) when it suddenly stopped and asked
defendant whether he wished to “withdraw his guilty plea.” After
defendant’s counsel responded “he does,” the trial court said:
“All right, I’m not going to play this nonsense. Motion to
withdraw guilty plea is sustained. Okay. We are back on the
trial call.” When the State asked whether there would be a
hearing on defendant’s motion to withdraw his guilty plea, the
court said:
“Well, the whole thing is, here’s my whole
point, when I am part of the agreement, there
was an agreement upon his plea, if the
defendant doesn’t want it, if you can turn
back pots and pans, my philosophy is, he can
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vacate the plea agreement. Okay?”
The half-sheet contains a notation indicating the trial court
sustained defendant’s motion to withdraw his plea on December 1,
2003. The State did not object to the trial court’s
consideration of an oral motion to withdraw the guilty plea.
On December 22, 2003, the State filed a “Motion to
Reconsider Granting of Defendant’s Motion to Withodraw [sic]
Guilty Plea,” requesting the trial court reconsider its decision
and conduct a hearing into the merits of the defendant’s motion
to withdraw.
Defense counsel filed a written motion to withdraw
defendant’s guilty plea on February 4, 2004. On May 17, 2004,
the trial court granted the State’s motion to reconsider,
holding: “All right, the motion to vacate the order for new trial
is sustained, all right.”
The case then was passed for a discussion between the court
and the parties. When the case was recalled, the trial court
admonished defendant pursuant to portions of Supreme Court Rule
402. 177 Ill. 2d R. 402. The trial court apparently believed
this court had ordered him to give more complete Rule 402
admonishments. We did not. During the Rule 402 admonishments,
the trial court asked defendant whether any promises or
agreements had been made to him to make him plead guilty.
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Defendant said his attorney promised him he could get “day-for-
day like two-for-one” for the time he spent in county jail, and
“could get a time cut within two years” if he pled guilty.
Defendant said his attorney told him “several other things like
he induced me to take it.”
After determining the defendant understood he was pleading
guilty voluntarily and knowingly, the trial court accepted his
“guilty plea.” No sentence was imposed or discussed. Defendant
was then admonished pursuant to Rule 605(b), which included an
admonishment that he could file a written motion to withdraw his
plea.
Following the hearing, the State raised the issue of
defendant’s bond, which had previously been set at $150,000. The
State argued defendant should be held in custody until the ruling
on his motion to vacate the guilty plea because he was once again
a convicted felon. The court replied:
“Well, actually right now as its stands there
is, will be, I will allow [defendant] to file
an oral motion instanter to vacate the plea
of guilty so you are not convicted of
anything until thirty days from now. *** So,
State, there has been not a substantial
change in his position other than the
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appellate court said that he had been not
properly admonished on his guilty plea and
throughout the pendency of this you have
never moved to increase the bond. Now that
he has made bond it seems like an
afterthought.”
The trial court sustained defendant’s oral motion to allow his
bond to stand. No issue is raised in this appeal regarding the
court’s post-hearing comments about an oral motion to vacate the
guilty plea “until 30 days from now.” Whatever order the trial
court had in mind was not reduced to writing and never was
referred to again. It remains a mystery. Since it is not raised
as an issue, we will move on.
On June 8, 2004, defense counsel filed a second written
motion to withdraw defendant’s guilty plea, contending his plea
was not voluntary because of his prior defense counsel’s
misrepresentations in the original action. Following a hearing,
the trial court denied the motion, finding that:
“[Defendant] did enter his plea knowingly and
voluntarily. The evidence showed that he was
not incorrectly informed by his attorney
concerning reductions of sentences, *** I
find that the evidence has shown that there
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has been no substantial violations of his
Constitutional rights, which would indicate
in any way that [defendant’s] plea was not
voluntary and was not knowingly made.
Therefore, the motion to withdraw the plea is
denied.”
Defendant appealed.
DECISION
I. Motion to Withdraw the Guilty Plea
Defendant contends the trial court improperly reconsidered
its decision to vacate the guilty plea because his “presumption
of innocence and constitutional rights” reattached after the
trial court vacated his plea. Defendant contends the trial court
had no authority to insert him back into his guilty plea. See
Schak v. Blom, 334 Ill. App. 3d 129, 134, 777 N.E.2d 635 (2002)
(a judgment or order is void where it is entered by a court which
lacks the “inherent power to enter the particular judgment or
order.”) Defendant does not challenge the merits of the trial
court’s decision to deny his motion to withdraw the guilty plea.
That is, he does not claim the 1998 Rule 402 admonishments were
fatally defective.
Initially, we note the parties disagree regarding the
correct standard of review in this appeal. Defendant contends
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his claim presents a pure question of law, and, therefore, should
be reviewed de novo. See People v. Johnson, 206 Ill. 2d 349,
359, 794 N.E.2d 294 (2002). The State counters it is within the
sound discretion of the trial court to determine whether a guilty
plea may be withdrawn, and the court’s decision is reviewed only
for an abuse of discretion. See People v. Stevens, 324 Ill. App.
3d 1084, 1090, 757 N.E.2d 1281 (2001). Because the issue on
appeal is whether the trial court had the power to reconsider its
decision to grant defendant’s motion to withdraw the plea, we
find the proper standard of review is de novo.
Leave to withdraw a guilty plea is “not granted as a matter
of right, but as required to correct a manifest injustice under
the facts involved.” People v. Pullen, 192 Ill. 2d 36, 39, 733
N.E.2d 1235 (2000). A trial court should allow a defendant to
withdraw his guilty plea where the plea was based on the
misapprehension of facts or law or because of misrepresentations
by counsel, where there is doubt of the defendant’s guilt, or
where ends of justice would better be served by submitting the
case to a trial. Pullen, 192 Ill. 2d at 40; Stevens, 324 Ill.
App. 3d at 1090.
The State counters that the trial court did not actually
vacate defendant’s guilty plea during the hearing on December 1,
2003. The State contends the trial could not have procedurally
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withdrawn the guilty plea until defendant filed a written motion
to withdraw his plea, as required by Supreme Court Rule 604(d).
As defendant notes, the State did not object to an oral
motion before or after the trial court vacated defendant’s guilty
plea and placed the case back on the trial call. Instead, the
State sought leave to file a motion to reconsider the decision
based on the trial court’s failure to conduct a hearing on the
motion.
Issues not raised in the trial court are generally
considered forfeited on appeal. People v. O’Neal, 104 Ill. 2d
399, 407, 472 N.E.2d 441 (1984). “The principle of waiver
applies to the State as well as the defendant in a criminal
case.” O’Neal, 104 Ill. 2d at 407. See also People v. Enoch,
122 Ill. 2d 176, 188, 522 N.E.2d 1124 (1988) (“It has been held
that the requirement of a written motion can be waived if a
defendant makes an oral motion for a new trial and the State does
not object.”) We find the State forfeited its contention on
appeal. See Enoch, 122 Ill. 2d at 188.
Forfeiture aside, we find Rule 604(d) does not apply in this
case.
Rule 604(d) provides, in relevant part:
“No appeal from a judgment entered upon a
plea of guilty shall be taken unless the
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defendant, within 30 days of the date on
which sentence is imposed, files in the trial
court *** a motion to withdraw the plea of
guilty and vacate the judgment. *** The
motion shall be in writing and shall state
the grounds thereof. *** The defendant’s
attorney shall file with the trial court a
certificate stating that the attorney has
consulted with the defendant either by mail
or in person to ascertain defendant’s
contentions of error in the sentence or the
entry of the plea of guilty.” 188 Ill. 2d R.
604(d)
Our supreme court has held Rule 604(d) was “designed to
eliminate needless trips to the appellate court and to give the
trial court an opportunity to consider the alleged errors and to
make a record for the appellate court to consider on review in
cases where defendant’s claim is disallowed.” (Emphasis added.)
People v. Wilk, 124 Ill. 2d 93, 106, 529 N.E.2d 218 (1988).
“Rule 604(d) establishes a condition precedent for an appeal from
a defendant’s plea of guilty.” Wilk, 124 Ill. 2d at 105.
In People v. Petty, 366 Ill. App. 3d 1170, 1177, 853 N.E.2d
429 (2006), the court held a trial court that proceeds with a
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hearing on a motion to withdraw a guilty plea without confirming
defense counsel filed a Rule 604(d) certificate proceeds in
error. If the court denies the motion to withdraw, the cause
must be remanded for the filing of a new motion and for a new
hearing. Petty, 366 Ill. App. 3d at 1177. If the trial court
grants the motion to withdraw, however, “it is immaterial whether
counsel filed a Rule 604(d) certificate because the defendant
received the relief requested.” Petty, 366 Ill. App. 3d at 1177.
Contrary to the State’s contention, the record clearly shows
the trial court sustained defendant’s motion to withdraw during
the hearing on December 1, 2003. The State’s own motion to
reconsider asked the trial court to vacate its order and conduct
a hearing on the merits of the defendant’s motion. The circuit
court half-sheet also indicates the trial court granted
defendant’s motion to withdraw his guilty plea.
While Rule 604(d) clearly required defendant to file a
written motion to withdraw his plea before he could appeal from
any judgment entered on the plea, nothing in the rule
specifically required defendant to file a written motion to
withdraw before the trial court vacated his plea and ordered a
new trial. Here, similar to Petty, it was immaterial whether
defense counsel filed a written motion before the trial court
vacated the plea because the defendant actually received the
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relief he requested. See Petty, 366 Ill. App. 3d at 1177. No
Illinois case, rule, or statute suggests a defendant is required
to file a written motion to withdraw his plea before the trial
court may vacate the plea and order a new trial. We decline to
impose such a requirement here.
We find the trial court did not err in granting defendant’s
oral motion to withdraw his guilty plea.
We must now determine whether the court was allowed to
reconsider its decision in light of the State’s motion.
Whether a trial court can reconsider its decision to grant a
defendant’s motion to withdraw his guilty plea is an issue of
first impression in Illinois.
In People v. Dismuke, 355 Ill. App. 3d 606, 607, 823 N.E.2d
1131 (2005), the trial court granted defendant’s motion to
withdraw his guilty plea. Upon reconsideration after a hearing,
the court denied defendant’s motion. Dismuke, 355 Ill. App. 3d
at 607. Defendant then filed an amended motion, which was denied
by the trial court. The court reversed the trial court’s order
because defense counsel’s Rule 604(d) petition was deficient.
While Dismuke is factually similar to the case at bar, the court
did not consider, and the defendant did not challenge, the trial
court’s decision to reconsider the granting of defendant’s
original motion to withdraw.
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We are not completely without guidance, however.
The purpose of a motion to reconsider is to bring to the
trial court’s attention changes in the law, errors in the court’s
previous application of existing law, and newly discovered
evidence not available at the time of the hearing. In re Gustavo
H., 362 Ill. App. 3d 802, 814, 841 N.E.2d 50 (2005). Public
policy favors correcting errors at the trial level, and a timely
motion to reconsider is an appropriate method to direct the trial
court’s attention to a claim of error. People v. Wagner, 100
Ill. App. 3d 1051, 1053, 427 N.E.2d 985 (1981); People v. Stokes,
49 Ill. App. 3d 296, 298, 364 N.E.2d 300 (1977).
“A court in a criminal case has inherent power to reconsider
and correct its own rulings, even in the absence of a statute or
rule granting it such authority.” People v. Mink, 141 Ill. 2d
163, 171, 565 N.E.2d 975 (1990). The court’s power to reconsider
extends to interlocutory, as well as final, judgments. Mink, 141
Ill. 2d at 171.
In Mink, after convictions, the defendant filed a post-trial
motion alleging the State failed to introduce sufficient evidence
of venue. The trial court granted the defendant’s motion for a
new trial. The State subsequently filed a motion for
reconsideration of the trial court’s order. The trial court
granted the State’s motion, vacated the new trial order, and
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reinstated the defendant’s convictions. On appeal, the defendant
argued the State was barred from seeking reconsideration of the
trial court’s order by article VI, section 6, of the Illinois
constitution, and by the double jeopardy clauses of the State and
Federal Constitutions. Mink, 141 Ill. 2d at 170.
In rejecting the defendant’s contentions, the supreme court
noted the trial court’s order granting the defendant’s motion for
a new trial was interlocutory in nature. Mink, 141 Ill. 2d at
171. When the trial court set the matter for a new trial, it
retained jurisdiction over the defendant and the indictment.
Mink, 141 Ill. 2d at 171. The court held: “So long as the case
was pending before it, the trial court had jurisdiction to
reconsider any order which had previously been entered.” Mink,
141 Ill. 2d at 171, citing People ex rel. Daley v. Crilly, 108
Ill. 2d 301, 305, 483 N.E.2d 1236 (1985); People v. Van Cleve, 89
Ill. 2d 298, 432 N.E.2d 837 (1982); People v. Heil, 71 Ill. 2d
458, 376 N.E.2d 1002 (1978). See also State v. Larkin, 111 Ohio
App. 3d 516, 519, 676 N.E.2d 906 (Ohio 1996) (“[T]he original
trial judge did have authority to reconsider and, upon more
mature reflection, to vacate his original decision granting
[defendant] a new trial.”)
Here, similar to Mink, the trial court’s order sustaining
defendant’s motion to withdraw his guilty plea was interlocutory
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in nature. See People v. Allen, 71 Ill. 2d 378, 381, 565 N.E.2d
975 (1978) (“The final judgment in a criminal case is the
sentence.”) Even though the trial court placed the matter “back
on the trial call,” it retained jurisdiction over the defendant
and the indictment.
The cases cited by defendant do not warrant a different
conclusion. In Estelle v. Williams, 425 U.S. 501, 503, 48
L.Ed.2d 126, 96 S.Ct. 1691 (1976), the United States Supreme
Court recognized “the presumption of innocence, although not
articulated in the Constitution, is a basic component of a fair
trial under our system of criminal justice.” The issue in
Estelle, however, was whether the defendant was denied his
“presumption of innocence” when he was forced to appear before
the jury in prison attire. Estelle, 425 U.S. at 504, 48 L.E.2d
at 130, 96 S.Ct. at 1693. See also McMillan v. Pennsylvania, 477
U.S. 79, 87, 91 L.Ed.2d 67, 106 S.Ct. 2411 (1986) (“the Due
Process Clause precludes States from discarding the presumption
of innocence.”)
Likewise, in People v. King, 1 Ill. 2d 496, 500, 116 N.E.2d
623 (1953), our supreme court noted that “[a]fter a plea of
guilty, a prisoner stands before the court as a convicted
criminal, and the presumptions of innocence which the law
indulges on a not-guilty plea no longer exist.” However, the
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court did not consider whether a defendant’s presumption of
innocence is violated if the trial court reconsiders its prior
decision to grant his motion to withdraw a guilty plea.
Estelle, McMillan, and King espouse only a general principal
of law that a defendant’s presumption of innocence is a basic
component of a fair trial under our system of criminal justice.
None of the cases stands for the proposition that a defendant’s
presumption of innocence is violated if a trial court is allowed
to reconsider an order granting a motion to withdraw a guilty
plea or an order granting a new trial.
We find the trial court did not err in reconsidering and
vacating its decision to grant defendant’s motion to withdraw his
guilty plea. See Mink, 141 Ill. 2d at 171.
II. Other Issues
Defendant contends the trial court failed to comply with
Rule 402 in the May 17, 2004, proceedings, and failed to ensure
defendant’s 2004 guilty plea was voluntary. Defendant also
contends he was deprived of effective assistance of counsel when
his defense counsel successfully vacated his 1998 plea but then
allowed him to involuntarily enter a guilty plea in 2004.
We remanded the case to the trial court with directions to
admonish defendant in accordance with Rule 605(b) (188 Ill. 2d R.
605(b)), and to allow defendant to file a motion to withdraw his
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guilty plea if he so desired. People v. Bryant, No. 1-01-3013
(2003) (unpublished order under Supreme Court Rule 23). “ ‘The
purpose of the Rule 605 admonishments is to ensure a defendant is
aware of the requirements of Supreme Court Rule 604(d) [citation
omitted], which set forth the deadlines and requirement for
appeals from sentences imposed upon a plea of guilty.’ ” People
v. Dixon, 366 Ill. App. 3d 848, 856, 853 N.E.2d 1235 (2006).
In an apparent misunderstanding of our directions on remand,
the trial court needlessly admonished defendant pursuant to Rule
402. While the Rule 402 admonishments unnecessarily complicated
the record, they did not result in defendant entering into a new
plea. After the trial court vacated its order for a new trial,
the 1998 plea was properly reinstated. See Mink, 141 Ill. 2d at
171. The trial court’s Rule 402 and Rule 605(b) admonishments
were related to his 1998 plea, not a new and distinct plea as
defendant contends. Our conclusion is supported by the fact that
neither the trial court nor the parties proceeded as if defendant
had entered a new plea. For example, no sentence was imposed.
Instead, the parties and the court properly focused on whether
defendant’s motion to withdraw his 1998 guilty plea should be
granted.
Because we find the trial court did not err in reconsidering
and vacating its decision to grant defendant’s motion to withdraw
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his 1998 guilty plea, we reject defendant’s contention that he
was forced into a new guilty plea in 2004. There was no new
guilty plea in 2004. Accordingly, we reject defendant’s
remaining contentions on appeal.
CONCLUSION
We affirm the trial court’s judgment.
Affirmed.
HOFFMAN, and SOUTH, JJ., concur.
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