People v. Harris

912 N.E.2d 696, 392 Ill. App. 3d 503, 332 Ill. Dec. 209, 2009 Ill. App. LEXIS 536
Appellate Court of Illinois·Decided June 18, 2009·No. 2-07-0695·Published·Cited by 9 cases

Opinion

PRESIDING JUSTICE ZENOFF

delivered the opinion of the court:

Ivan B. Harris appeals the denial of his motion to withdraw his admission to violating his probation for his original conviction of burglary to a motor vehicle, a Class 2 felony (720 ILCS 5/19 — 1 (West 2004)). He contends that his admission was involuntary because his sentence did not include approval for impact incarceration, in violation of the parties’ agreement that the sentence would be concurrent with a Will County sentence that included such approval. Because the trial court wrongly determined that withdrawal of the admission was not an available remedy and, as a result, never heard evidence on the merits of Harris’s motion, we reverse and remand for further proceedings.

I. BACKGROUND

On October 12, 2005, Harris pleaded guilty under a plea agreement and was sentenced to 24 months’ probation. On December 5, 2006, the State filed a petition to revoke Harris’s probation, alleging that on October 3, 2006, Harris committed offenses in Will County and that he failed to report to the probation department.

On March 28, 2007, Harris entered into an agreement to admit to the allegations in exchange for a sentence of seven years’ incarceration “concurrent” with the sentence in the Will County case, with credit for 177 days. The Will County sentence included approval for placement in impact incarceration. However, the Du Page County agreement as stated to the trial court was silent on whether it required approval for impact incarceration in order for the sentence in this case to be “concurrent” with the sentence in Will County.

Under Supreme Court Rule 402A(a) (210 Ill. 2d R. 402A(a)), the court admonished Harris that, by admitting the violations, he would give up his right to call witnesses at a hearing that would require the State to prove the violations by a preponderance of the evidence. The court also admonished Harris of the requirements of mandatory supervised release. However, the court never confirmed Harris’s understanding of the petition, and it advised Harris that the sentencing range for the original Class 2 felony was 3 to 14 years, when at the plea hearing it stated the range as 3 to 7 years. See 730 ILCS 5/5 — 8— 1(a)(5) (West 2004). The court did not inquire whether any coercion or promises apart from the agreement influenced the admission. 210 Ill. 2d R. 402A(b). The court also never heard a specific factual basis for the admission. 210 Ill. 2d R. 402A(c). The court imposed the seven-year term and told Harris that, should he want to appeal, he would be required to first file within 30 days a written motion to withdraw the admission.

On April 10, 2007, Harris wrote a letter to the trial court, stating that he had received impact incarceration in Will County and needed approval for impact incarceration in the current case in order for his sentence to be concurrent with his Will County sentence. On April 25, 2007, Harris wrote another letter to the trial court, stating that a box for impact incarceration on the sentencing form had not been checked and asking that the order be corrected. The record confirms that the sentencing form has a box for the judge to check when impact incarceration is approved.

On April 26, 2007, Harris filed a motion to withdraw his admission, pursuant to Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)), alleging that he did not knowingly, intelligently, and voluntarily waive his right to a hearing on the petition to revoke his probation and that he did not fully understand the trial court’s admonitions. The State moved to strike the motion, alleging that Rule 604(d) was not applicable.

On June 6, 2007, a hearing was held on the motion to strike. Harris appeared with new counsel who told the court that they wished to present evidence that, based on the advice of his previous attorney, Harris believed that his sentence would include approval for impact incarceration. Harris’s new counsel said that he would call Harris’s previous attorney to testify. The trial court continued the matter to allow Harris to supplement his motion.

On July 9, 2007, another hearing was held, and Harris filed a supplemental motion, reasserting his previous contentions and adding that his original counsel was ineffective for failing to inform him that the sentence would not include approval for impact incarceration. He included an affidavit stating that, from discussions with counsel, his understanding was that the sentence proposed under his agreement would include approval for impact incarceration.

The State argued that withdrawal of the admission was not the proper remedy and that Harris should file an appeal. Without hearing any evidence on the matter, the trial court responded that the issue of impact incarceration never arose and that “there was never a sentence, there was never a contemplation, there was never an error.” The court said that it had read Harris’s letter about checking the box on the form and said, “that was never, ever an issue, pretrial or sentencing.” The court then found that the State’s position was well taken, held that withdrawal of the admission was not the proper remedy, and denied Harris’s motion. Harris appeals.

II. ANALYSIS

Harris contends that he should be allowed to withdraw his admission because his counsel misinformed him that his sentence would include approval for impact incarceration. The State argues that, because Rule 604(d) is inapplicable, the trial court had no obligation to hear evidence on Harris’s motion. In the alternative, it contends that Harris failed to show that he was entitled to withdraw his admission.

A. Ability to Move to Withdraw the Admission Although the trial court made statements about the merits of the motion to withdraw the admission, it ultimately concluded that withdrawal of the admission was not the proper remedy. 1 The State contends that the court was correct, arguing that Rule 604(d) is inapplicable and that Harris thus did not have the right to a hearing on his motion.

We review a legal question de novo. See People v. Hall, 198 Ill. 2d 173, 177 (2001). In the context of a negotiated guilty plea, a defendant must file a motion to withdraw the plea within 30 days in order to preserve the right to appeal. See 210 Ill. 2d R. 604(d). But Rule 604(d) “makes no express reference to an appeal from a conviction or sentence imposed after a defendant on probation has admitted the allegations of the petition to revoke the probation.” People v. Stevens, 94 Ill. App. 3d 516, 518 (1981). Thus, a defendant who has admitted violating his or her probation is not required to move to withdraw the admission before appealing the order revoking the probation. See Stevens, 94 Ill. App. 3d at 518; see also People v. Butcher, 288 Ill. App. 3d 120, 122-23 (1997). However, that a defendant is not required to move to withdraw the admission does not mean that he or she may not seek to do so or that an appeal is the only available remedy. Instead, such a motion, while not a prerequisite to an appeal, is permissible. See People v. Tufte, 165 Ill. 2d 66, 78 (1995); see also Butcher, 288 Ill. App.

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People v. Harris, 912 N.E.2d 696, 392 Ill. App. 3d 503, 332 Ill. Dec. 209, 2009 Ill. App. LEXIS 536 (Ill. Ct. App. 2009).

912 N.E.2d 696 (People v. Harris) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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