People v. Wigod

940 N.E.2d 202, 406 Ill. App. 3d 66, 346 Ill. Dec. 202, 2010 Ill. App. LEXIS 1289
Appellate Court of Illinois·Decided December 3, 2010·No. 1-09-0418·Published·Cited by 6 cases

Opinion

JUSTICE TOOMIN

delivered the opinion of the court:

Here, we must determine whether prejudice inuring from purported inadequate guilty plea admonishments was compounded by the trial court’s ex parte denial of defendant’s motion to reconsider sentence, thereby providing the basis for vacature of the plea. Following a plea of guilty to the offense of failure to support, defendant, Lee Wigod, was sentenced to serve 18 months’ imprisonment and ordered to pay restitution totaling $85,802. Defendant’s pro se motions to reduce his sentence and correct the restitution order were denied.

He now appeals, contending: (1) he was inadequately admonished of the consequences of his plea and his appeal rights pursuant to Supreme Court Rules 604 and 605 (210 Ill. 2d Rs. 604, 605); (2) the denial of his postplea motions violated Supreme Court Rule 604 (210 Ill. 2d R. 604); (3) the scope of the restitution order was beyond the authority of the trial court; and (4) the restitution order is inadequate. Although defendant’s opening brief asserted that the enactment under which he was charged violated the “single subject rule,” he has since abandoned that contention. For the reasons that follow, we vacate the judgment of the circuit court and remand for further proceedings.

BACKGROUND

Defendant was charged by indictment with a single count of the offense of failure to support, pursuant to the Non-Support Punishment Act (750 ILCS 16/15(a)(4) (West 2006)). The indictment alleged defendant:

“[Wlillfully failed to pay a support obligation required under a court *** order for support and the obligation has remained unpaid for a period longer than one year, or is in arrears in an amount greater than twenty thousand dollars ($20,000) and he has the ability to provide support, and said offense is based upon a series of such acts performed at different times by [defendant].”

The instant prosecution initially proceeded to a bench trial on December 17, 2007. After a single witness testified, the matter was continued. On January 28, 2008, defendant’s counsel were granted leave to withdraw and substitute counsel entered an appearance on defendant’s behalf. In turn, the matter was continued from time to time, until August 5, 2008, when defendant elected to enter a blind plea of guilty.

After ascertaining defendant’s desire to change his plea, the trial judge stated:

“You are charged in this case with a crime of failure to support. That is a Class 4 felony. What that means is when you plead guilty, then it will be up to me to sentence you anywhere from probation up to time in the penitentiary, anywhere from a minimum of one year up to a maximum of three years, and that would carry one year of mandatory supervised release which is what they used to call parole.”

Defendant indicated he understood and changed his plea to that of guilty. The trial judge then admonished defendant as to the rights he was giving up by changing his plea. The judge added: “And you understand that I have the realm to sentence you to any of those possible sentences, do you understand that.” (Emphasis added.) Defendant indicated that he did.

Thereafter, the State offered the following factual basis for the plea. Defendant and Susan Wigod-Giffen married in 1986. A daughter, Carley, was born from this union in 1990. Defendant and Susan separated in 1993. The separation agreement awarded custody of Carley to Susan and obligated defendant to pay $125 per week in child support. Thereafter, on December 29, 1995, a judgment of dissolution of marriage was entered. A marital settlement agreement was incorporated into the judgment, providing, inter alia, that Susan would retain custody of Carley, that defendant was to pay $150 per week in child support, along with health care and daycare costs, and repayment of $5,000 defendant withdrew from Carley’s bank account. Because defendant was already $2,716 in arrears at the time of the dissolution, by operation of the initial separation agreement, he was ordered to pay $237.65 per month until satisfied.

Neither the arrearage nor the $5,000 repayment was made. On September 10, 2002, an order was entered reflecting an arrearage totaling $48,300. Defendant was then held in contempt of court. A modified order was entered on August 12, 2003, based upon defendant’s claimed loss of income, reducing his obligation to $234 per month, payable in fortnightly installments of $117. On July 7, 2005, an order was entered reflecting a child support arrearage totaling $101,928, as well as amounts due and owing for Carley’s daycare. Defendant continually failed to pay and did so for a period exceeding one year.

According to the State, documentary evidence would further demonstrate an ability to pay as shown, inter alia, by bank records reflecting deposits of $30,000 into defendant’s individual bank account during a period of time when he claimed only $3,000 in income. Additionally, the evidence would show defendant received two $5,000 cash loans from his coworker, Robert Kenig. Yet, according to the State, none of this money was used to reduce his outstanding child support obligation. In 1996, defendant married Lori (Weedsman) Wigod. During their union, two condominiums were purchased in Chicago for approximately $430,000 and $971,000. Additionally, they owned two cars, took vacations annually, and went on cruises. During 2004 and 2005, defendant was employed in a position where he earned a salary, together with commissions. Defendant persisted in the nonpayment of his obligations.

Additionally, the State represented that the willful character of defendant’s conduct could be demonstrated in several ways. Defendant had undertaken numerous efforts and tactics to delay the proceedings in the civil court, including filing a variety of frivolous and baseless motions. Furthermore, he filed for bankruptcy on so many occasions that the United States Bankruptcy Court barred him from further petitions without first obtaining leave of court. Moreover, defendant’s ex-wife, Susan, would testify that in 1993, at the time of the initial separation, defendant stated: “You will regret this decision. I will drag you through the courts, and you will never see a dime.”

Defense counsel stipulated to the majority of the State’s factual basis. However, defendant refused to stipulate to the full measure of the arrearage as described by the prosecutor. The State agreed that the actual amount owed required further discussion and ultimate resolution by the parties. Nevertheless, defense counsel stipulated that the original judgment “was for $101,000 three years ago.”

The trial court accepted the stipulation and upon receiving the plea added:

“I find the defendant does understand the nature of the charge against him and the possible penalties, that this plea has been made freely and voluntarily and that a factual basis does exist for the plea; therefore, the plea will be accepted. There will be a finding of guilty and judgment will be entered on that finding.

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People v. Wigod, 940 N.E.2d 202, 406 Ill. App. 3d 66, 346 Ill. Dec. 202, 2010 Ill. App. LEXIS 1289 (Ill. Ct. App. 2010).

940 N.E.2d 202 (People v. Wigod) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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