People v. Claudin

Opinion

FOURTH DIVISION December 21, 2006

No. 1-05-1683

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) CHRISTOPHER CLAUDIN, ) The Honorable ) David P. Sterba, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE QUINN, delivered the opinion of the court:

Defendant, Christopher Claudin, entered a negotiated plea of

guilty to a charge of aggravated criminal sexual abuse and was

sentenced to three years' imprisonment. On appeal, defendant

contends that the trial court failed to properly admonish him

pursuant to Supreme Court Rule 605(c) (Official Reports Advance

Sheet No. 21 (October 17, 2001), R. 605(c), eff. October 1, 2001)

and that his cause must be remanded for admonishments in

accordance with that rule.

Defendant was originally charged in a 13-count indictment

with aggravated sexual assault, criminal sexual assault,

aggravated criminal sexual abuse, criminal sexual abuse, and

unlawful restraint of his girlfriend. On January 14, 2005,

defendant entered a negotiated plea of guilty to one count of

aggravated criminal sexual abuse and was sentenced to three

years' imprisonment pursuant to the agreement. The trial court 1-05-1683

then admonished defendant as follows:

"All right. You have a right to appeal. In order to

do so you must first file a motion to withdraw your plea of

guilty, modify or reconsider the sentence. That motion must

be in writing and filed with the clerk of the circuit court

within 30 days of today's date.

Therein you must set forth all of your grounds or

reasons therefore. Anything not so stated will be deemed

waived or given up.

You also have a right to a copy of the transcript of

these proceedings and an attorney to assist you in the

preparation and presentation of that motion.

If you can't afford either, each will be provided to

you free of charge.

Do you understand that?"

Defendant responded that he understood, but he did not file

a postplea motion. Rather, on February 8, 2005, defendant filed

a notice of appeal. In this court, defendant challenges the

sufficiency of the trial courts admonitions.

Supreme Court Rule 604(d) (Official Reports Advance Sheet

No. 4 (February 16, 2005), R. 604(d), eff. February 1, 2005)

requires a defendant who wishes to appeal from a judgment entered

on a negotiated guilty plea to first file a written motion with

the trial court to withdraw the guilty plea and vacate the

judgment (People v. Dunn, 342 Ill. App. 3d 872, 876 (2003)).

Compliance with Rule 604(d) is a condition precedent to an

appeal, and if defendant fails to meet this requirement, the

-2- 1-05-1683

appellate court must dismiss the appeal. People v. Flowers, 208

Ill. 2d 291, 301 (2003). However, under the admonishment

exception to this rule, if the trial court fails to give the

admonishments set forth in Rule 605 and defendant subsequently

attempts to appeal without first filing the requisite Rule 604(d)

motion, the appeal is not dismissed but, rather, the cause is

remanded to the trial court for strict compliance with Rule

604(d). Flowers, 208 Ill. 2d at 301; People v. Jamison, 181 Ill.

2d 24, 30 (1998).

Here, defendant failed to file a Rule 604(d) motion to

withdraw his guilty plea and instead filed his notice of appeal.

This omission may result in the waiver of his right to a direct

appeal, unless the trial court failed to admonish defendant in

accordance with Rule 605(c). The trial court is held to strict

compliance with the admonition requirements of Rule 605(c);

however, the court is not required to use the exact language of

the rule and the admonitions will be deemed insufficient only

where the court has omitted the substance of the rule. Dunn, 342

Ill. App. 3d at 881. We review the trial court's compliance with supreme court rules de novo. People v. Lloyd, 338 Ill. App. 3d 379, 384 (2003).

The record in this case shows that the trial court informed

defendant of his right to appeal, and the need to first file a

written motion to withdraw his guilty plea, "modify or reconsider

the sentence," within 30 days of that court date. The court also

admonished defendant that any issues not raised in such a motion

would be waived, that he had a right to a free copy of the

-3- 1-05-1683

transcript and that counsel would be appointed to assist him in

the presentation and preparation of his motion free of charge.

These admonitions clearly show substantial compliance with

subsections (1), (2), (5) and (6) of Rule 605(c). Official

Reports Advance Sheet No. 21 (October 17, 2001), R5. 605(c)(1),

(c)(2),(c)(5),(c)(6) eff. October 1, 2001.

Defendant, nevertheless, contends that the admonishments

were insufficient because the trial court failed to inform him

that if his motion was allowed, the plea, the sentence, and the

judgment would be vacated and a trial date would be set on the

charges to which the plea was made (Official Reports Advance

Sheet No. 21 (October 17, 2001), R. 605(c)(3), eff. October 1,

2001); and if the court granted his motion to withdraw, the State

could reinstate the 12 charges it dropped as part of the plea

deal (Official Reports Advance Sheet No. 21 (October 17, 2001),

R. 605(c)(4), eff. October 1, 2001).

This same argument was made and rejected in People v. Crump,

344 Ill. App. 3d 558, 563 (2003), where the court concluded that

defendant was substantially admonished of his appeal rights following his guilty plea and was not prejudiced by the missing

verbiage. We find no meaningful difference in this case and

therefore find that defendant was substantially admonished

pursuant to Rule 605(c), and that his failure to file a Rule

604(d) motion is not cured by the admonition exception.

Defendant further contends, however, that the trial court

provided an incorrect and misleading admonishment by telling him

that to appeal he could "file a motion to withdraw [his] plea of

-4- 1-05-1683

guilty, modify or reconsider the sentence," when his only

recourse was to file a motion to vacate his negotiated guilty

plea. Official Reports Advance Sheet No. 21 (October 17, 2001),

R. 605(c)(2), eff. October 1, 2001; Dunn, 342 Ill. App. 3d at 881.

We agree with defendant that he could not preserve his

appeal rights by only filing a motion to modify, or reconsider

his sentence, and that the court's reference to such a motion in

advising defendant that he must first file a motion to withdraw

his plea of guilty was extraneous and incorrect. However, when

read in context, we find that it does not provide cause for

reversal, where the trial court conveyed the substance of the

rule and put defendant on notice of the necessity of first filing

a postplea motion within 30 days, and defendant indicated his

understanding of this requisite. Nevertheless, defendant failed

to file any type of postplea motion and instead filed a notice of

appeal. As in In re J.T., 221 Ill. 2d 338, 347-48 (2006), the

admonitions did not strictly comply with Rule 605(c), but they

were sufficient to put defendant on notice of the postplea action necessary to preserve his appeal, and he ignored it.

Under these circumstances, we find that defendant's failure

to file a Rule 604(d) motion is not encompassed within the

admonition exception and that he has waived his right to a direct

appeal. Crump, 344 Ill. App. 3d at 563. Accordingly, we dismiss

this appeal.

Appeal dismissed.

CAMPBELL and GREIMAN, JJ., concur.

-5-