People v. Horton

620 N.E.2d 437, 250 Ill. App. 3d 944, 189 Ill. Dec. 469, 1993 Ill. App. LEXIS 1333, 1993 WL 334735
CourtAppellate Court of Illinois
DecidedSeptember 2, 1993
Docket4-92-0853
StatusPublished
Cited by10 cases

This text of 620 N.E.2d 437 (People v. Horton) 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. Horton, 620 N.E.2d 437, 250 Ill. App. 3d 944, 189 Ill. Dec. 469, 1993 Ill. App. LEXIS 1333, 1993 WL 334735 (Ill. Ct. App. 1993).

Opinion

JUSTICE KNECHT

delivered the opinion of the court:

Defendant Bervet Horton stipulated to violation of a protective order, was found in indirect criminal contempt and was sentenced to 45 days’ periodic imprisonment with work release. His sentence was later revoked and he was resentenced to 120 days’ imprisonment. Defendant contends he was not properly admonished pursuant to Supreme Court Rule 402(a) about the potential ramifications of his decision to plead guilty. (134 Ill. 2d R. 402(a).) He also contends the trial judge did not properly admonish him about the procedural steps necessary to perfect an appeal from the judgment and sentence pursuant to Supreme Court Rule 605(b). (134 Ill. 2d R. 605(b).) We remand.

I. Facts

On October 10, 1991, a plenary order of protection was entered against defendant on behalf of Gisele Thompson. (Ill. Rev. Stat. 1991, ch. 40, par. 2312 — 19.) It was enforceable until October 10, 1993. On November 6, 1991, a petition for adjudication of indirect criminal contempt was filed against defendant for his alleged violation of the protective order. On January 27, 1992, defendant was found guilty of indirect criminal contempt and ordered to serve a 30-day period of incarceration in the Champaign County jail. No appeal was taken.

On May 19, 1992, the State filed a second petition for adjudication of indirect criminal contempt against defendant. A hearing occurred on July 27, 1992. Defendant stipulated to violating the protective order. After testimony, the trial judge permitted defendant to make a statement in allocution. The trial judge admonished defendant he was admitting he had contacted Thompson in violation of a court order and defendant was voluntarily admitting to the allegation. The judge explained he could impose up to a six-month jail term and a $500 fine. This maximum jail term was based on the State’s stipulation. The trial judge proceeded to the sentencing hearing.

At the close of the evidence, and after closing arguments, the trial judge imposed a sentence of 45 days’ periodic imprisonment to be served in a work-release program and ordered defendant to pay $12 daily during this period. After imposing sentence, the trial judge admonished defendant, stating:

“This, obviously, is not the sentence that you wanted to have the Court impose upon you. You can make a motion to have the Court reconsider the sentence imposed upon you. I have listened to the evidence here. I think I imposed the correct sentence and I would deny it. Then, you could take an appeal of the sentence imposed [upon] you to the Appellate Court. [The assistant public defender] continues to be your attorney for the next thirty days, to make sure that gets done for you. If you fail to do that within the next thirty days, you lose forever your chance to take back any guilty plea and get this matter reviewed by the Appellate Court in Springfield. Do you understand that, Mr. Horton?”

On August 12, 1992, defendant filed a motion to reconsider his sentence. On the same date the State filed a motion to revoke defendant’s work-release sentence because of an allegation defendant had consumed alcoholic beverages before returning to the correctional center after work. On August 14, defendant filed an amended motion to reconsider the sentence. On September 2, 1992, the State filed a supplemental petition to revoke defendant’s work-release sentence because of an additional allegation defendant had consumed alcoholic beverages.

At the September 11, 1992, hearing on the pending motions, defendant stipulated to the allegations contained in the State’s initial petition to revoke and the State withdrew its supplemental petition. The trial judge concluded defendant’s motion to reconsider the sentence imposed on July 27 was moot because of defendant’s stipulation to the State’s allegation he had consumed alcohol.

After additional testimony on October 9, 1992, the trial judge concluded probation under the intensive probation program was not an appropriate sentence to impose upon defendant. Defendant was resentenced to a term of 120 days’ incarceration in the Champaign County correctional center with credit for 42 days previously served. The trial judge admonished defendant about the procedural steps for an appeal, stating:

“THE COURT: The law says that you have thirty days from today’s date to file a request to have the Court reconsider the disposition imposed upon you in this matter. [Defense counsel], You want to address that?
DEFENSE COUNSEL: Yes, Your Honor. Mr. Horton indicates that he would be interested in a notice of appeal to be filed and would ask that an oral motion to reconsider be allowed at this time.
THE COURT: I would be glad to consider it. The dicta from the Fourth District seems to be that it’s supposed to be a written notice, here recently, the stuff that I have read. We will show an oral motion to have the Court reconsider the sentence imposed in this matter. Did you have additional evidence, [defense counsel], that you want to offer on that?
DEFENSE COUNSEL: No, Your Honor.
THE COURT: Okay. The Court is going to find, based upon the evidence before me, that my initial decision was a correct decision. That I simply reaffirm the finding that I have just made with regard to whether or not Mr. Horton needs to be incarcerated. Having said that, Mr. Horton can then be requesting an appeal of the sentence imposed upon you, of the trial that took place on July 27, 1992, as he has been inclined to do for a while. The Court does find that he is indigent. That the Appellate Defender should be appointed for him in this matter. Mr. Daniel Yuhas is hereby appointed. The Circuit Clerk is directed to file a notice of appeal for Mr. Horton, contesting the hearing of July 27, 1992, and the sentence imposed upon him previously on this date.”

On October 19,1992, defendant filed a notice of appeal.

II. Analysis

Defendant contends he was not properly admonished pursuant to Rule 402 after he pleaded guilty at the July 27 hearing by stipulating to the violation of the protective order. He also argues at the July 27 and October 9 hearings, the trial judge did not properly admonish him about the procedural steps necessary to perfect an appeal from the judgment and sentence pursuant to Rule 605(b).

A. Jurisdiction

The State initially contends this court lacks jurisdiction to hear this appeal because defendant did not file his notice of appeal within 30 days of the order appealed from. It directs us to the order filed by the trial judge on July 27, 1992, and the disposition of defendant’s motion to reconsider on September 11,1992.

An appeal must be filed within 30 days from the date of the order appealed. When a motion directed against the judgment is timely filed within 30 days, defendant has 30 days after disposition of that motion in which to file his appeal. (134 Ill. 2d R.

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Cite This Page — Counsel Stack

Bluebook (online)
620 N.E.2d 437, 250 Ill. App. 3d 944, 189 Ill. Dec. 469, 1993 Ill. App. LEXIS 1333, 1993 WL 334735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-horton-illappct-1993.