People v. Favelli

531 N.E.2d 386, 176 Ill. App. 3d 618, 126 Ill. Dec. 91, 1988 Ill. App. LEXIS 1482
CourtAppellate Court of Illinois
DecidedNovember 18, 1988
Docket2-87-0130
StatusPublished
Cited by19 cases

This text of 531 N.E.2d 386 (People v. Favelli) 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. Favelli, 531 N.E.2d 386, 176 Ill. App. 3d 618, 126 Ill. Dec. 91, 1988 Ill. App. LEXIS 1482 (Ill. Ct. App. 1988).

Opinion

JUSTICE INGLIS

delivered the opinion of the court:

This is the second opinion filed in this case. The original opinion dismissed the case under People v. Wilk (June 20, 1988), Nos. 64738, 64739, 64742, 64744. Subsequent to the filing of that opinion, the supreme court modified its opinion in People v. Wilk (1988), 124 Ill. 2d 93. Pursuant to a petition for rehearing, we withdrew our original opinion and now address this case under Wilk as modified.

Defendant, John Favelli, pleaded guilty to two counts of unlawful delivery of a controlled substance to a person under 18 years of age (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1407(a)). In exchange for defendant’s guilty plea, the State nol-prossed two counts of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(c)), one count of unlawful possession of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402(b)), and one count of unlawful possession of cannabis (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 704(d)). Defendant was sentenced to two concurrent terms of 10 years’ imprisonment and appeals solely from the trial court’s imposition of sentence.

On appeal defendant contends that the trial court (1) abused its discretion in sentencing when it twice factored in the difference in the ages of defendant and the buyer; and (2) erred in considering defendant’s receipt of proceeds from the sale of drugs as an aggravating factor in sentencing.

The State has filed a motion to dismiss this appeal contending that defendant’s failure to withdraw his guilty plea before appealing his sentence leaves this court without appellate jurisdiction. See People v. Stacey (1977), 68 Ill. 2d 261, 266-67.

Defendant filed a response to the State’s motion contending that he did not comply with Rule 604(d) because the trial court failed to admonish him that a Rule 604(d) motion was necessary to perfect his appeal as required by Supreme Court Rule 605(b) (107 Ill. 2d R. 605(b)). We ordered both the State’s motion and the defendant’s response to be taken with the case, and both parties have addressed the issue concerning defendant’s failure to comply with Rule 604(d) in their appellate briefs.

On January 15, 1987, after imposing defendant’s sentence, the trial court gave defendant the following admonishments:

“I advise you, Mr. Favelli, that since the Judgment was entered pursuant to a plea of guilty, you have the right to appeal.
Prior to taking an appeal, the defendant must file with the Court within 30 days from the date which the sentence was imposed a written motion asking to have the Judgment vacated and for leave to withdraw your motion — leave to withdraw your plea of guilty setting forth specifically the grounds in the motion.
If the motion is allowed, the plea of guilty, sentence and the Judgment will be vacated; and a trial date will be set on the charges to which the plea is made.
Upon the request of the State, any charges that may have been dismissed as a part of this agreement could be reinstated and would also be set for trial.
If you are indigent, a copy of the transcript of these proceedings at the time of your plea of guilty and sentence will be provided for you without cost; and an attorney will be appointed to assist you in preparing the motion.
In any appeal taken on the Judgment of a plea of guilty, any issue or claim of error not raised in the motion to vacate the Judgment to withdraw the plea of guilty shall be deemed to be waived.”

On February 2, 1987, defendant filed a motion to reconsider his sentence which the trial court denied on February 9, 1987. Upon the denial of his motion to reconsider his sentence, defendant filed a notice of appeal, a motion for appointment of the appellate defender, and a motion to prepare the record on appeal. The trial court and defense counsel then engaged in the following colloquy:

“THE COURT: Mr. Favelli has the right to proceed to appeal but if I recall right he pled guilty; did he not?
MR. MADSEN [defense counsel]: That’s correct.
THE COURT: Has he filed a motion to vacate his plea of guilty?
MR. MADSEN: No, your honor. This would be an appeal from the sentencing.
THE COURT: All right.
MR. MADSEN: Paragraph 7 of the Notice of Appeal, your Honor, would indicate that he appeals only from the amount of the sentencing.
THE COURT: He is not seeking to withdraw his plea of guilty.
MR. MADSEN: No, your Honor.
THE COURT: All right.”

In his original brief, defendant claimed that the trial court not only failed to admonish him that a Rule 604(d) motion is required to obtain appellate review of a sentence, but it also affirmatively indicated that a Rule 604(d) motion would not be required under the instant circumstances. Defendant concluded that, due to his counsel’s ineffective assistance and the trial court’s failure to inform him that he must withdraw his guilty plea prior to appealing his sentence, either his cause should be remanded to the trial court for further proceedings or the merits of his sentencing issue should be addressed.

In Wilk, our supreme court reaffirmed that compliance with Rule 604(d) is a condition precedent to an appeal from a defendant’s plea of guilty. The supreme court further recognized that although the failure to file a Rule 604(d) motion to perfect an appeal may amount to ineffective assistance of counsel, a defendant’s remedy lies in the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.). (124 Ill. 2d at 107.) We therefore found that defendant’s claim of ineffective assistance of counsel could not excuse his failure to comply with Rule 604(d) before taking an appeal. Consequently, we dismissed defendant’s appeal in our original opinion.

The supreme court distinguished cases where defendants did not challenge their guilty pleas but instead appealed the trial court’s denial of their motions to reconsider their sentences. (124 Ill. 2d at 109-10.) The supreme court noted that when a motion to reconsider had been filed, the trial court had the opportunity to reconsider the appropriateness of the sentence imposed and to correct errors made, if any. (124 Ill. 2d at 109-10.) The court further stated that because defendants were not appealing their guilty pleas, it was not necessary for them to file a Rule 604(d) motion. 124 Ill. 2d at 109-10.

In the instant case, as in Wilk, defendant appeals only his sentence after having filed a motion to reconsider his sentence. Therefore, defendant was not required to file a motion to withdraw his guilty plea prior to filing a notice of appeal. Nevertheless, we consider the issues raised on appeal to be waived.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Castillo
612 N.E.2d 533 (Appellate Court of Illinois, 1993)
People v. Root
600 N.E.2d 461 (Appellate Court of Illinois, 1992)
People v. Phillips
580 N.E.2d 168 (Appellate Court of Illinois, 1991)
People v. Bronson
576 N.E.2d 449 (Appellate Court of Illinois, 1991)
People v. Smith
574 N.E.2d 784 (Appellate Court of Illinois, 1991)
People v. Durbin
569 N.E.2d 548 (Appellate Court of Illinois, 1991)
People v. Gordon
566 N.E.2d 23 (Appellate Court of Illinois, 1991)
People v. Fern
557 N.E.2d 1010 (Appellate Court of Illinois, 1990)
People v. Gerdes
553 N.E.2d 108 (Appellate Court of Illinois, 1990)
People v. Harrison
553 N.E.2d 746 (Appellate Court of Illinois, 1990)
People v. Carroll
552 N.E.2d 361 (Appellate Court of Illinois, 1990)
People v. Kennedy
543 N.E.2d 617 (Appellate Court of Illinois, 1989)
People v. Patrick
544 N.E.2d 1042 (Appellate Court of Illinois, 1989)
People v. Israel
537 N.E.2d 1124 (Appellate Court of Illinois, 1989)
People v. Balsar
533 N.E.2d 1140 (Appellate Court of Illinois, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
531 N.E.2d 386, 176 Ill. App. 3d 618, 126 Ill. Dec. 91, 1988 Ill. App. LEXIS 1482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-favelli-illappct-1988.