People v. Zawadka

2020 IL App (3d) 170236-U

• Court: Appellate Court of Illinois
• Decided: July 28, 2020
• Docket: 3-17-0236
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

2020 IL App (3d) 170236-U

Order filed July 28, 2020 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, ) Plaintiff-Appellee, ) Appeal No. 3-17-0236 ) 3-17-0237 ) 3-17-0238 v. ) Circuit No. 14-CF-2183 ) 15-CF-199 ) 15-CF-1418 DANIEL J. ZAWADKA, ) ) Honorable ) Daniel Kennedy, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE HOLDRIDGE delivered the judgment of the court. Justices Carter and Wright concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: The trial court did not fail to properly admonish the defendant.

¶2 The defendant, Daniel J. Zawadka, appeals from the sentences entered upon his three guilty

pleas, arguing that the trial court failed to properly admonish him pursuant to Illinois Supreme Court Rules 605(b) (eff. Oct. 1, 2001) and 401(a) (eff. July 1, 1984) and erred in denying his

request for the removal of his handcuffs during a hearing on his motion to reconsider sentence.

¶3 I. BACKGROUND

¶4 The defendant entered open guilty pleas in three separate cases to aggravated battery (720

ILCS 5/12-3.05(c) (West 2014)), theft by deception (720 ILCS 5/16-1(a)(2)(A) (West 2014)),

forgery (720 ILCS 5/17-3(a)(2) (West 2014)), and two counts of identity theft (720 ILCS 5/16-

30(a)(1) (West 2014)) in exchange for the dismissal of other pending counts.

¶5 The cases proceeded to a consolidated sentencing hearing. The defendant was represented

by an attorney from the public defender’s office during his guilty plea hearings and continued to

be represented by the public defender’s office during sentencing. The court sentenced the

defendant to the following sentences of imprisonment: (1) two years for aggravated battery, (2)

four years for theft by deception, (3) three years for forgery, and (4) two years for identity theft.

The sentences for aggravated battery and forgery would be consecutive, and the other sentences

would run concurrently. The court stated:

“Sir, if you wish to withdraw your guilt[y] pleas in these matters or have me

reconsider my sentence, you must file a written motion within 30 days of today’s

date setting forth grounds why. If you don’t file *** such a[ ] motion within 30

days of today’s date, you waive your appellate rights. If you do file such a motion

within 30 days of today’s date, I will set it down for hearing. If I grant your motion,

we will start all over. If I deny your motion, you have got 30 days from the date of

my denial to file your notice of appeal. Do you understand your appellate rights?”

The defendant stated that he did. Defense counsel stated that he was going to file a motion to

reconsider sentence. Counsel also stated:

2 “My client also wants me to consider filing a motion to withdraw his plea of guilty.

It’s something that I had discussed with him before that I need additional time.

What I plan to do is order the transcripts of the date that he pled guilty, see if he

was admonished. If he was admonished correctly and there is no other issues that I

see, I am not going to file a motion to withdraw his plea of guilty, but definitely a

motion to reconsider his sentence.”

¶6 The defendant filed a pro se motion to withdraw guilty plea. In the motion, the defendant

stated that he pleaded guilty based on “a misapprehension of the law.” The defendant also stated

that the State had promised to dismiss an additional count and he was improperly admonished. The

defendant also filed a pro se motion to reconsider sentence, stating that the court considered an

improper aggravating factor, failed to consider factors in mitigation, erred in imposing consecutive

sentences, and imposed an excessive sentence.

¶7 At the next court date, defense counsel stated that it needed more time to get the transcripts,

but that the defendant had filed pro se motions and wanted to represent himself. The court stated,

“You don’t want [defense counsel] to represent you?” The defendant said that was correct. The

court asked the defendant if he understood that he was at a disadvantage by representing himself.

The defendant agreed. The court asked what sort of legal training the defendant had. The defendant

stated that he had a bachelor’s degree in criminal justice, but no law degree. The court asked if the

defendant had ever represented himself and if he knew the rules of evidence. The defendant stated

that he had not represented himself, but that he did know the rules of evidence. The court asked

the defendant if he understood that he could not complain on appeal about the competency of his

own representation and would not receive any additional time in the law library or special

consideration. The defendant said he agreed. The court asked the defendant if he understood that

3 he would not be given the chance to change his mind. The defendant said he understood. The court

then allowed the public defender’s office to withdraw.

¶8 The defendant chose to voluntarily withdraw his motion to withdraw his guilty plea, and

the case proceeded to a hearing on the defendant’s motion to reconsider sentence. The defendant

asked if the handcuffs could be taken off. The court denied his request. The court denied the

defendant’s motion to reconsider.

¶9 The defendant completed his sentence on November 2, 2017, and completed his mandatory

supervised release (MSR) in November 2018.

¶ 10 II. ANALYSIS

¶ 11 On appeal, the defendant argues the court (1) failed to properly admonish him pursuant to

Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001), (2) failed to substantially comply with

Illinois Supreme Court Rule 401(a) (eff. July 1, 1984), and (3) erred in denying his request for the

removal of handcuffs during the hearing on his motion to reconsider sentence.

¶ 12 At the outset, we note that the parties agree that the defendant is no longer incarcerated for

these cases and has completed his MSR. Any issues raised in relation to his sentence are, therefore,

moot. People v. Roberson, 212 Ill. 2d 430, 435 (2004). “A case is moot if the issues involved in

the trial court have ceased to exist because intervening events have made it impossible for the

reviewing court to grant effectual relief to the complaining party.” Id. The defendant does not

argue that any exceptions to the mootness doctrine apply. The relief requested in the defendant’s

first two arguments is new postplea proceedings, including the ability to file new motions to

reconsider sentence and to withdraw his plea. Since the defendant seeks the ability to file motions

to withdraw his plea, we will consider these two arguments on that basis alone. Since the

4 defendant’s third argument solely asks for a new hearing on his motion to reconsider sentence, we

do not reach the issue as it is moot.

¶ 13 Turning to the merits, the defendant first argues that this case should be remanded for

proper admonishments pursuant to Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001).

Specifically, the defendant argues that the court failed to admonish him that a copy of the

transcripts would be provided to him and counsel would be appointed to assist him in preparing

his postplea motions.

Before a defendant may appeal a judgment entered upon an open plea of guilty, Illinois

Supreme Court Rule 604(d) requires the filing of either a motion to withdraw the plea, a motion

to reconsider sentence, or both, within 30 days of sentencing. Rule 605(b) is a corollary to Rule

604(d). People v. Foster, 171 Ill. 2d 469, 472 (1996). Rule 605(b) serves to ensure “that a

defendant knows of Rule 604(d)’s requirements regarding appeals from sentences imposed upon

a plea of guilty.” Id. Rule 605(b) states:

“In all cases in which a judgment is entered upon a plea of guilty, other than a

negotiated plea of guilty, at the time of imposing sentence, the trial court shall

advice the defendant substantially as follows:

(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 trial court reconsider the sentence or to have the judgment

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

grounds for the motion;

5 (3) that if the motion is allowed, the sentence will be modified or 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 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;

(5) that if the defendant is indigent, a copy of the transcripts 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 the 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 reconsider the sentence or

to vacate the judgment and to withdraw the plea of guilty shall be deemed

waived.”

The court need not strictly comply with Rule 605(b) but need only substantially comply. People

v. Dominguez, 2012 IL 111336, ¶ 19. The court need only impart to a defendant the essence of the

rule “in such a way that the defendant is properly informed, or put on notice, of what he must do

in order to preserve his right to appeal his guilty plea or sentence.” Id. ¶ 22.

¶ 14 We find that the court substantially complied with Rule 605(b). The defendant was on

notice that he needed to file postplea motions in order to preserve his appeal rights. See In re J.T.,

221 Ill. 2d 338, 347-48 (2006). Moreover, we find that any error would be harmless. While the

court did not specifically state that the defendant could have an attorney appointed to represent

him and he could receive the transcripts for free, the defendant received a copy of the transcripts,

6 had counsel before deciding to proceed pro se, filed postplea motions, and exercised his right to

appeal. See People v. Leon, 66 Ill. App. 3d 778, 779 (1978); People v. Potts, 136 Ill. App. 3d 1059,

1061-62 (1985).

¶ 15 Next, the defendant contends that the court failed to admonish him pursuant to Illinois

Supreme Court Rule 401(a) (eff. July 1, 1984), which states:

“Any waiver of counsel shall be in open court. The court shall not permit a waiver

of counsel by a person accused of an offense punishable by imprisonment without

first, by addressing the defendant personally in open court, informing him of and

determining that he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including,

when applicable, the penalty to which the defendant may be subjected

because of prior convictions or consecutive sentences; and

(3) that he has a right to counsel and, if he is indigent, to have counsel

appointed for him by the court.”

¶ 16 We find People v. Young, 341 Ill. App. 3d 379 (2003), instructive. In Young, the trial court

allowed the defendant to proceed pro se on his posttrial motions filed after sentencing, without

admonishing the defendant pursuant to Rule 401(a). Id. at 382. The defendant challenged this

failure on appeal. Id. at 387. The court stated that Rule 401(a) does not express that it is mandatory

for the court to comply with the technical requirements when a defendant discharges his attorney

late in the proceedings. Id. The court stated:

“A defendant who has been represented by an attorney for a period of time is more

likely to understand the workings of the system than a defendant who first appears

7 in court. The language of Rule 401(a) manifests only the intent to deal with

defendants who are considering a waiver of counsel at the initial-appointment stage

of the proceedings. The plain language of Rule 401(a) says that the admonishments

are to be given to a defendant ‘accused’ of an offense ‘punishable’ by

imprisonment. [Citation.] In this case, Young had already been convicted of the

offense and sentenced, while being represented by counsel. Young already knew

everything a Rule 401(a) admonishment would have told him.” (Emphases in

original). Id.

¶ 17 We agree with the Young court’s interpretation of Rule 401(a). The court need not have

admonished the defendant pursuant to Rule 401(a). There would have been no use in informing

the defendant of the nature of the charge and the possible sentence because the defendant had

already been convicted and sentenced. It was clear that the defendant understood his right to

counsel, and the court asked a series of questions to confirm that the defendant’s waiver was

knowing and voluntary. The defendant already knew everything the admonishments would have

told him. Therefore, the court did not err in failing to admonish the defendant pursuant to Rule

401(a). See People v. Harrison, 2018 IL App (3d) 150419, ¶ 18.

¶ 18 In coming to this conclusion, we reject the defendant’s reliance on People v. Langley, 226

Ill. App. 3d 742, 749 (1992). Langley is factually distinguishable as the defendant in that case had

yet to be sentenced when he sought to proceed pro se. Id. at 744-45.

¶ 19 III. CONCLUSION

¶ 20 The judgment of the circuit court of Will County is affirmed.

¶ 21 Affirmed.