People v. Zavala

2021 IL App (1st) 182701-U

• Court: Appellate Court of Illinois
• Decided: January 29, 2021
• Docket: 1-18-2701
• Status: Unpublished

Opinion

2021 IL App (1st) 182701-U

SIXTH DIVISION January 29, 2021

No. 1-18-2701

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 17 CR 17636 ) MARCO ZAVALA, ) Honorable ) Ramon Ocasio III, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE MIKVA delivered the judgment of the court. Justices Connors and Harris concurred in the judgment. ORDER

¶1 Held: Case remanded for proper admonitions under Illinois Supreme Court Rule 605(c).

¶2 On August 21, 2018, defendant Marco Zavala pleaded guilty to one count of aggravated

unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5), (a)(3)(C) (West Supp.

2017)) and was sentenced to three years in prison. He appeals, claiming that the matter should be

remanded for proper postplea admonitions pursuant to Illinois Supreme Court Rule 605(c) (eff.

Oct. 1, 2001). For the following reasons, we agree and reverse and remand.

¶3 I. BACKGROUND

¶4 Mr. Zavala was charged by indictment with one count of unlawful use of a weapon by a No. 1-18-2701

felon, one count of possession of a controlled substance, and three counts of AUUW arising from

an incident on October 24, 2017. During pretrial proceedings on August 21, 2018, defense counsel

requested a conference under Illinois Supreme Court Rule 402(d) (eff. July 1, 2012). Following

the conference, defense counsel advised the court that Mr. Zavala decided to plead guilty to one

count of AUUW. Mr. Zavala submitted his jury waiver, and the State recited the factual basis for

the plea.

¶5 The prosecutor stated that the evidence would show that on October 24, 2017, at

approximately 3:34 p.m., police officers curbed Mr. Zavala’s vehicle for “a minor traffic violation”

near the 2500 block of Lombard Avenue in Cicero, Illinois. During the stop, Mr. Zavala could not

provide a driver’s license or insurance, and the officers arrested him. An “inventory search” of Mr.

Zavala’s vehicle revealed suspected cocaine, and he also admitted that a firearm was behind the

center console, which the officers recovered. The firearm was uncased, loaded, and immediately

accessible to Mr. Zavala, and he did not have a valid Firearm Owners Identification card or a

concealed carry permit at the time of the stop. The State would also provide evidence that Mr.

Zavala had a felony conviction in case No. 12 CR 14536.

¶6 The trial court accepted Mr. Zavala’s guilty plea and sentenced him to three years in prison.

The court then admonished Mr. Zavala as follows:

“Sir, this is a final and appealable order, which means if you want to exercise your

right to appeal, you must within 30 days of today’s court date file a written motion asking

to withdraw or take back the guilty plea.

In the written motion, you must tell me all the reasons why I should allow you to

do that. Anything you forget to put in the written motion I cannot consider and you waive

for purposes of appeal.

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If I did allow you to take back the guilty plea, all those allegations that were

dismissed would be reinstated and the case would be set for trial and you would have your

day in court.

However, if I did not allow you to take back the guilty plea, you would have 30

days from the time I denied the request to file a Notice of Appeal with the Appellate Court.

If you could not afford it, we would provide you an attorney and transcripts free of

charge to help you exercise your right to appeal.

Do you understand your right to appeal?”

Mr. Zavala replied, “Yes, sir.”

¶7 Mr. Zavala did not file a motion to withdraw his guilty plea. On January 4, 2019, this court

permitted Mr. Zavala’s pro se late notice of appeal and appointed appellate counsel. The State has

asked us to dismiss this appeal on the basis that Mr. Zavala never filed the required postplea

motion, seeking to withdraw his plea. Mr. Zavala argues that he was not properly admonished

under Illinois Supreme Court Rule 605(c) and that, therefore, this case should be remanded for the

purpose of proper postplea admonishments.

¶8 II. ANALYSIS

¶9 When a defendant pleads guilty following a negotiated plea, the trial court must give the

defendant certain admonitions that are set out in Supreme Court Rule 605(c). Ill. S. Ct. R. 605(c)

(eff. Oct. 1, 2001). Specifically, the court must inform the defendant:

“(1) that the defendant has a right to appeal;

(2) that prior to taking an appeal the defendant must file in the trial court, within 30

days of the date on which sentence is imposed, a written motion asking to have the

judgment vacated and for leave to withdraw the plea of guilty, setting forth the grounds for

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the motion;

(3) that if the motion is allowed, the plea of guilty, sentence and judgment will be

vacated and a trial date will be set on the charges to which the plea of guilty was made;

(4) that upon request of the State any charges that may have been dismissed as a

part of the plea agreement will be reinstated and will also be set for trial;

(5) that if the defendant is indigent, a copy of the transcript of the proceedings at

the time of the defendant’s plea of guilty and sentence will be provided without cost to the

defendant and counsel will be appointed to assist the defendant with the preparation of

motions; and

(6) that in any appeal taken from the judgment on the plea of guilty any issue or

claim of error not raised in the motion to vacate the judgment and to withdraw the plea of

guilty shall be deemed waived.” Id.

¶ 10 If a defendant who pleaded guilty attempts to appeal without first filing a written motion

to withdraw his plea, this court is generally precluded from addressing the merits and must dismiss

the appeal. See Ill. S. Ct. R. 604(d) (eff. July 1, 2017); People v. Flowers, 208 Ill. 2d 291, 300-01

(2003). Where, however, the trial court failed to properly admonish a defendant pursuant to Rule

605(c), we will remand the case for the purpose of proper Rule 605(c) admonitions, and the

defendant’s case will proceed from there, with the defendant given a new opportunity to file a

motion to withdraw his or her plea. Id. at 301.

¶ 11 The trial court must substantially comply with Rule 605(c) but is not required to read the

rule verbatim to the defendant. People v. Dominguez, 2012 IL 111336, ¶ 22. Rather, the court must

ensure that the admonitions were “sufficient to impart to a defendant the essence or substance of

the rule” such that the defendant understands the necessary steps to preserve his appeal rights. Id.

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Whether the trial court substantially complied with Rule 605(c) is a matter of supreme court rule

interpretation that we review de novo. People v. Henderson, 217 Ill. 2d 449, 458 (2005).

¶ 12 Mr. Zavala argues that the court did not substantially comply respecting two specific

subsections of Rule 605(c). First, he argues that the court erred in advising him that if he withdrew

his plea, “all those allegations that were dismissed would be reinstated and the case would be set

for trial.” This is not an accurate description of what occurs if a plea is withdrawn. Rather, pursuant

to subsections (c)(3) and (c)(4) of the rule, where, as in Mr. Zavala’s case, there is a negotiated

plea, he was supposed to have been admonished that “a trial date will be set on the charges to

which the plea of guilty was made” and that “upon the request of the State any charges that may

have been dismissed as a part of a plea agreement will be reinstated and will also be set for trial.”

Ill. S. Ct. R. 605(c)(3), (c)(4) (eff. Oct. 1, 2001). Thus, Mr. Zavala is correct that the court erred in

failing to make clear that the charges he pleaded guilty to would be set for trial and the additional

charges that had been dismissed could also be set for trial at the State’s request.

¶ 13 Of far more concern is Mr. Zavala’s second specific argument, which is that the trial court

did not tell him that he had a right to counsel in filing a motion to withdraw his plea under Rule

605(c)(5). After a defendant has been informed that he or she must file “a written motion asking

to have the judgment vacated and for leave to withdraw the plea of guilty” (Ill. S. Ct. R. 605(c)(2)

(eff. Oct. 1, 2001)), they must then be admonished under Rule 605(c)(5) (eff. Oct. 1, 2001) that “if

the defendant is indigent, *** counsel will be appointed to assist the defendant with the preparation

of motions.” The court said instead that Mr. Zavala had the right to appointed counsel to help him

“exercise his right to appeal.” Mr. Zavala’s right and obligation to appeal is separate and distinct

from his right and obligation to first file a postplea motion. The admonition that counsel would be

appointed to aid Mr. Zavala on appeal did not necessarily mean to him that counsel could help him

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file the appropriate postplea motions in the trial court. Mr. Zavala points out in his briefing that he

made clear in his motion to file a late notice of appeal that his appeal was late because the law

library where he was incarcerated was closed due to lockdowns. He argues that, if he had known

about his right to appointed counsel to help him file a motion, the closed library would not have

been a problem since counsel could have prepared and filed a timely postplea motion.

¶ 14 This court made clear long ago that the failure of the trial court to advise a defendant who

is pleading guilty that the defendant had a right to counsel for his obligatory postplea motions

requires a remand for proper admonishments. People v. Lloyd, 338 Ill. App. 3d 379, 384 (2003).

As we stated in that case, notwithstanding that the defendant was told that he had to take action

within 30 days to withdraw his plea and that he had the right to an attorney for his appeal, the

“defendant was still entitled to be informed of the availability of appointed counsel for postplea

proceedings and his right to receive a transcript of the plea proceedings.” Id. at 385. We recognized

that “[w]here it is undisputed that [the] defendant was not so informed, there could not be

substantial admonishment under Rule 605(c).” Id.

¶ 15 The State distinguishes Lloyd on the basis that the defendant in that case specifically argued

that he did not file a motion within thirty days because he did not know how to file an appeal by

himself and was therefore prejudiced by not being told he had a right to the help of counsel in

filing his postplea motions. We see little difference between that case and this one, where Mr.

Zavala’s request to file a late notice of appeal specifically notes that he was hampered by the fact

that the law library in his prison was closed. Counsel in this case argues that had Mr. Zavala been

properly admonished, he would “have availed himself of such representation and filed a motion to

withdraw his plea in a timely manner and in the proper legal form.” To the extent that prejudice

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from incomplete admonishments is a required showing, it is present in this case as it was in Lloyd.

¶ 16 The State relies on our supreme court’s decision in People v. Dominguez, 2012 IL 111336,

which would certainly control if it were inconsistent with Lloyd. However, in Dominguez, the

admonishments given “substantially complied” with the Rule 605(c) because, in addition to the

incomplete oral admonishments, the defendant in that case received written admonishments that

“did clearly indicate that counsel could be appointed to help him prepare his postplea motions.”

Id. ¶ 51. No such written admonishments were given in Mr. Zavala’s case.

¶ 17 The State also suggests that In re J.T., 221 Ill. 2d 338 (2006), might be relevant. However,

in that case the defendant “did not file a timely notice of appeal from the order sentencing him to

probation, a written motion to either withdraw his plea or reconsider his sentence, or a motion for

leave to file a late notice of appeal.” Id. at 346. That was the why our supreme court determined

that “the appellate court had no jurisdiction to consider any issues arising from either his guilty

plea or his sentence.” Id. at 347. That case is also not controlling here.

¶ 18 Because the trial court failed to advise Mr. Zavala that he could have an attorney appointed

on his postplea motions, this case is remanded for new admonitions in accordance with Rule

605(c).

¶ 19 Reversed and remanded for plea admonitions.

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