People v. Riegle

615 N.E.2d 1232, 246 Ill. App. 3d 270, 186 Ill. Dec. 175, 1993 Ill. App. LEXIS 934
CourtAppellate Court of Illinois
DecidedJune 24, 1993
Docket4-92-0776
StatusPublished
Cited by7 cases

This text of 615 N.E.2d 1232 (People v. Riegle) 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. Riegle, 615 N.E.2d 1232, 246 Ill. App. 3d 270, 186 Ill. Dec. 175, 1993 Ill. App. LEXIS 934 (Ill. Ct. App. 1993).

Opinion

JUSTICE LUND

delivered the opinion of the court:

Defendant Dale Wayne Riegle appeals an order of the circuit court of Vermilion County denying a motion to withdraw his guilty plea. Defendant pleaded guilty to a number of drug charges, but moved to withdraw this plea prior to sentencing. The motion was denied, and defendant was sentenced to 14 years’ imprisonment. Defendant did not resubmit his motion to withdraw his plea, nor did he file a motion to reconsider sentence. Defendant now appeals both the denial of his motion to withdraw guilty plea and his sentence. He requests that his conviction and sentence be vacated and the cause remanded for trial or, in the alternative, that the cause be remanded for a new sentencing hearing before a different judge. We affirm.

On May 11, 1989, defendant was involved in a sale of 24.6 grams of cocaine to an undercover police officer. On August 8, 1989, agents for the Vermilion County Metropolitan Enforcement Group went to his place of business, placed him under arrest, and asked for consent to search his residence. Consent was given and 219.6 grams of 85% pure cocaine were seized from defendant’s home. Defendant then gave a taped statement acknowledging his involvement in the May 11, 1989, transaction and indicated that the cocaine found in his residence was being held for another individual. He claimed he would receive $200 for keeping the cocaine for this other individual and stated that he had held half-pound packages of cocaine 10 to 12 times in the last three months.

On June 10, 1991, defendant pleaded guilty to: count I — delivery of controlled substance (15 to 100 grams) on May 11, 1989 (Class X, 6 to 30 years); count II — possession of controlled substance with intent to deliver (100 to 400 grams) on August 8, 1989 (Class X, 9 to 40 years); count III — possession of controlled substance (100 to 400 grams) on August 8, 1989 (merger into count II); count IV — calculated criminal drug conspiracy on August 11, 1989 (Class X, 6 to 30 years); and count V — narcotics racketeering between January 25, 1989, and August 8, 1989 (Class 1, 4 to 15 years). In exchange for this plea, a 1990 felony count was dropped. In addition, defendant agreed to forfeit his home, bank accounts, and automobile, all of which had been named in a temporary restraining order (TRO) previously issued by the court.

Defendant first complains of five errors in the trial court’s Supreme Court Rule 402(a) (134 Ill. 2d R. 402(a)) admonishments, which he argues rendered his guilty plea involuntary.

The first claim involves the fact that the trial judge misinformed defendant of the minimum and maximum sentence for count I. The court realized its mistake and corrected itself, but this mistake, combined with numerous interjections by the State’s Attorney, created an air of confusion.

Second, the trial judge described the punishment for count IV as “the same possible incarceration penalties as I just told you about.” The last penalty he had spoken about was 9 to 40 years on count II. The correct sentencing range for count IV is 6 to 30 years.

The third claim of error is that defendant was not advised of the maximum sentence that could be imposed because the trial judge failed to advise him of the possibility of receiving consecutive sentences.

In the fourth claim, defendant contends he was not advised of the forfeiture provisions of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 561/2, par. 1100 et seq.).

The fifth and final claim is based upon a typographical error in count IV. Count IV states that a drug conspiracy took place on August 11, 1989, rather than the correct date of May 11, 1989. This error was not noticed, and defendant pleaded guilty to count IV. This error first .appeared on the original bill of indictment and was not brought to the court’s attention until defendant filed his motion to withdraw his plea.

The State contends that defendant has waived all but one of his claims of error by his failure to include them in his motion to withdraw his guilty plea. The State argues that the only claim preserved for appeal is the issue regarding the incorrect date in count IV of the indictment. This argument is unfounded, since paragraphs 9 and 10 of defendant’s amended complaint clearly raise issues regarding the voluntariness of his plea and the fact that he did not understand the potential penalties under the plea agreement.

On our own motion, we consider whether defendant has failed to perfect his appeal by his failure to resubmit his motion to withdraw his guilty plea after sentence was handed down. Defendant’s motion to withdraw his plea was filed and denied prior to his sentencing on September 17, 1992. After sentencing, defendant filed a notice of appeal, but did not submit another motion to withdraw his guilty plea. Defendant’s motion to withdraw his plea, filed prior to sentencing, was inadequate to perfect his appeal under Supreme Court Rule 604(d), which states in relevant part:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw his plea of guilty and vacate the judgment. The motion shall be in writing and shall state the grounds therefor. *** Upon appeal any issue not raised by the defendant in the motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be deemed waived.” (Emphasis added.) (Official Reports Advance Sheet No. 8 (April 15, 1992), R. 604(d), eff. August 1, 1992.)

We addressed this issue in People v. Hale (1979), 77 Ill. App. 3d 721, 396 N.E.2d 317, rev’d on other grounds (1980), 82 Ill. 2d 172, 411 N.E.2d 867, where our court asked:

“Can a motion to withdraw a plea of guilty be filed and heard prior to sentencing?
Yes.
But an appeal from a denial of such motion cannot be taken until after sentence and the filing of another motion to withdraw the plea.” (Emphasis added.) Hale, 77 Ill. App. 3d at 721-22, 396 N.E.2d at 318.

This rule was criticized in the Second District Appellate Court opinion in People v. Paul (1981), 93 Ill. App. 3d 302, 417 N.E.2d 251, where that court concluded that filing a second motion was wholly redundant and unnecessary. In People v. Ramage (1992), 229 Ill. App. 3d 1027, 595 N.E.2d 222, the second district explicitly overruled its Paul decision. Initially, the court noted that the failure of a defendant convicted on a plea of guilty to file a Rule 604(d) motion is a jurisdictional defect which prevents a court of review from entertaining an appeal from that judgment. The supreme court emphasized the mandatory nature of Rule 604(d) in People v. Wilk (1988), 124 Ill.

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Cite This Page — Counsel Stack

Bluebook (online)
615 N.E.2d 1232, 246 Ill. App. 3d 270, 186 Ill. Dec. 175, 1993 Ill. App. LEXIS 934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-riegle-illappct-1993.