{ "id": 3589161, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN W. FAVELLI, Defendant-Appellant", "name_abbreviation": "People v. Favelli", "decision_date": "1988-11-18", "docket_number": "No. 2\u201487\u20140130", "first_page": "618", "last_page": "624", "citations": [ { "type": "official", "cite": "176 Ill. App. 3d 618" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "107 Ill. App. 3d 1078", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3023107 ], "pin_cites": [ { "page": "1082" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/1078-01" ] }, { "cite": "129 Ill. App. 3d 52", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3490943 ], "year": 1982, "pin_cites": [ { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/0052-01" ] }, { "cite": "68 Ill. 2d 261", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809512 ], "pin_cites": [ { "page": "266-67" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0261-01" ] }, { "cite": "124 Ill. 2d 93", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3218603 ], "weight": 5, "pin_cites": [ { "page": "107" }, { "page": "109-10" }, { "page": "109-10" }, { "page": "109-10" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0093-01" ] } ], "analysis": { "cardinality": 506, "char_count": 11863, "ocr_confidence": 0.766, "pagerank": { "raw": 3.6067893325456725e-07, "percentile": 0.8880006131631613 }, "sha256": "95a35def028f4f96d37b45ab9097249e0838021b39f1ab3e034fc835efcec424", "simhash": "1:253646fe732ef929", "word_count": 2050 }, "last_updated": "2023-07-14T15:43:30.106689+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN W. FAVELLI, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE INGLIS\ndelivered the opinion of the court:\nThis is the second opinion filed in this case. The original opinion dismissed the case under People v. Wilk (June 20, 1988), Nos. 64738, 64739, 64742, 64744. Subsequent to the filing of that opinion, the supreme court modified its opinion in People v. Wilk (1988), 124 Ill. 2d 93. Pursuant to a petition for rehearing, we withdrew our original opinion and now address this case under Wilk as modified.\nDefendant, John Favelli, pleaded guilty to two counts of unlawful delivery of a controlled substance to a person under 18 years of age (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1407(a)). In exchange for defendant\u2019s guilty plea, the State nol-prossed two counts of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(c)), one count of unlawful possession of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402(b)), and one count of unlawful possession of cannabis (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 704(d)). Defendant was sentenced to two concurrent terms of 10 years\u2019 imprisonment and appeals solely from the trial court\u2019s imposition of sentence.\nOn appeal defendant contends that the trial court (1) abused its discretion in sentencing when it twice factored in the difference in the ages of defendant and the buyer; and (2) erred in considering defendant\u2019s receipt of proceeds from the sale of drugs as an aggravating factor in sentencing.\nThe State has filed a motion to dismiss this appeal contending that defendant\u2019s failure to withdraw his guilty plea before appealing his sentence leaves this court without appellate jurisdiction. See People v. Stacey (1977), 68 Ill. 2d 261, 266-67.\nDefendant filed a response to the State\u2019s motion contending that he did not comply with Rule 604(d) because the trial court failed to admonish him that a Rule 604(d) motion was necessary to perfect his appeal as required by Supreme Court Rule 605(b) (107 Ill. 2d R. 605(b)). We ordered both the State\u2019s motion and the defendant\u2019s response to be taken with the case, and both parties have addressed the issue concerning defendant\u2019s failure to comply with Rule 604(d) in their appellate briefs.\nOn January 15, 1987, after imposing defendant\u2019s sentence, the trial court gave defendant the following admonishments:\n\u201cI advise you, Mr. Favelli, that since the Judgment was entered pursuant to a plea of guilty, you have the right to appeal.\nPrior to taking an appeal, the defendant must file with the Court within 30 days from the date which the sentence was imposed a written motion asking to have the Judgment vacated and for leave to withdraw your motion \u2014 leave to withdraw your plea of guilty setting forth specifically the grounds in the motion.\nIf the motion is allowed, the plea of guilty, sentence and the Judgment will be vacated; and a trial date will be set on the charges to which the plea is made.\nUpon the request of the State, any charges that may have been dismissed as a part of this agreement could be reinstated and would also be set for trial.\nIf you are indigent, a copy of the transcript of these proceedings at the time of your plea of guilty and sentence will be provided for you without cost; and an attorney will be appointed to assist you in preparing the motion.\nIn any appeal taken on the Judgment of a plea of guilty, any issue or claim of error not raised in the motion to vacate the Judgment to withdraw the plea of guilty shall be deemed to be waived.\u201d\nOn February 2, 1987, defendant filed a motion to reconsider his sentence which the trial court denied on February 9, 1987. Upon the denial of his motion to reconsider his sentence, defendant filed a notice of appeal, a motion for appointment of the appellate defender, and a motion to prepare the record on appeal. The trial court and defense counsel then engaged in the following colloquy:\n\u201cTHE COURT: Mr. Favelli has the right to proceed to appeal but if I recall right he pled guilty; did he not?\nMR. MADSEN [defense counsel]: That\u2019s correct.\nTHE COURT: Has he filed a motion to vacate his plea of guilty?\nMR. MADSEN: No, your honor. This would be an appeal from the sentencing.\nTHE COURT: All right.\nMR. MADSEN: Paragraph 7 of the Notice of Appeal, your Honor, would indicate that he appeals only from the amount of the sentencing.\nTHE COURT: He is not seeking to withdraw his plea of guilty.\nMR. MADSEN: No, your Honor.\nTHE COURT: All right.\u201d\nIn his original brief, defendant claimed that the trial court not only failed to admonish him that a Rule 604(d) motion is required to obtain appellate review of a sentence, but it also affirmatively indicated that a Rule 604(d) motion would not be required under the instant circumstances. Defendant concluded that, due to his counsel\u2019s ineffective assistance and the trial court\u2019s failure to inform him that he must withdraw his guilty plea prior to appealing his sentence, either his cause should be remanded to the trial court for further proceedings or the merits of his sentencing issue should be addressed.\nIn Wilk, our supreme court reaffirmed that compliance with Rule 604(d) is a condition precedent to an appeal from a defendant\u2019s plea of guilty. The supreme court further recognized that although the failure to file a Rule 604(d) motion to perfect an appeal may amount to ineffective assistance of counsel, a defendant\u2019s remedy lies in the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 \u2014 1 et seq.). (124 Ill. 2d at 107.) We therefore found that defendant\u2019s claim of ineffective assistance of counsel could not excuse his failure to comply with Rule 604(d) before taking an appeal. Consequently, we dismissed defendant\u2019s appeal in our original opinion.\nThe supreme court distinguished cases where defendants did not challenge their guilty pleas but instead appealed the trial court\u2019s denial of their motions to reconsider their sentences. (124 Ill. 2d at 109-10.) The supreme court noted that when a motion to reconsider had been filed, the trial court had the opportunity to reconsider the appropriateness of the sentence imposed and to correct errors made, if any. (124 Ill. 2d at 109-10.) The court further stated that because defendants were not appealing their guilty pleas, it was not necessary for them to file a Rule 604(d) motion. 124 Ill. 2d at 109-10.\nIn the instant case, as in Wilk, defendant appeals only his sentence after having filed a motion to reconsider his sentence. Therefore, defendant was not required to file a motion to withdraw his guilty plea prior to filing a notice of appeal. Nevertheless, we consider the issues raised on appeal to be waived.\nThe effect of Wilk is to read an exception into Rule 604(d). The reason for that exception is that, where a defendant is contesting only his sentencing, there is no need for a motion to withdraw his guilty plea since that is not being contested. However, in Wilk, the trial court still had an opportunity to review the sentence after defendants had made motions to reconsider. The spirit of Rule 604(d), to eliminate appeals where errors can be corrected at the trial level, was therefore preserved. To consider on appeal an issue related to sentencing not raised in either a motion to reconsider or a motion to withdraw a guilty plea would further modify Rule 604(d) in such a way as to obliterate its purpose. This we will not do absent a clear direction by our supreme court. Consequently, in light of Wilk, we read Rule 604(d) to require any defendant who has entered a guilty plea to file a motion to reconsider his sentence as a prerequisite to an appeal of the sentence. In accordance with this conclusion, we follow Rule 604(d) as it pertains to waiver.\nSupreme Court Rule 604(d) provides in pertinent part:\n\u201cUpon appeal any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived.\u201d 107 Ill. 2d R. 604(d).\nIn the instant case, the issues which defendant raises on appeal were not raised in his motion to reconsider. Defendant\u2019s motion to reconsider referred only to a question of defendant\u2019s health, which he does not raise on appeal. The petition specifically alleged that subsequent to the sentencing, the defendant advised counsel that he was subject to epileptic seizures, that he was medicated to avoid seizures and had a seizure while confined in the McHenry County jail.\nAt the oral argument defense counsel argued the issue of defendant\u2019s health and concluded:\n\u201cOn that basis and on that basis alone, your Honor, I would ask that the Court reconsider the length of the sentence and perhaps reduce the same to whatever the Court deems appropriate.\u201d\nNo other issues were raised in writing or orally. In light of our interpretation of Rule 604(d) under Wilk, we consider defendant\u2019s contentions to be waived.\nFinally, we consider defendant\u2019s contention that he was improperly admonished pursuant to Supreme Court Rule 605(b) (107 Ill. 2d R. 605(b)).\nWhere the trial court fails to properly admonish a defendant regarding his rights in compliance with Rule 605(b), the defendant should not be penalized for failing to follow the proper procedure to preserve those rights. People v. Dorsey (1984), 129 Ill. App. 3d 52, 55; see also People v. Miller (1982), 107 Ill. App. 3d 1078,1082.\nRule 605(b) states:\n\u201cIn all cases in which a judgment is entered upon a plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows:\n(1) that he has a right to appeal;\n(2) that prior to taking an appeal he 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 his plea of guilty, setting forth his grounds for the motion;\n(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;\n(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;\n(5) that if he is indigent, a copy of the transcript of the proceedings at the time of his plea of guilty and sentence will be provided without cost to him and counsel will be appointed to assist him with the preparation of the motions; and\n(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 his plea of guilty shall be deemed waived.\u201d (Emphasis added.) 107 Ill. 2d R. 605(b).\nThe record indicates that the trial court\u2019s admonishments to defendant were not confusing, complied with the requisites of Rule 605(b), and fully apprised defendant of his rights. Defendant argues that he should have been admonished a second time when his motion to reconsider sentence was denied. Defendant has failed to cite any authority supporting his position, and our independent research has not discovered any authority which requires that the trial court readmonish a defendant under these circumstances. Rule 605(b) only requires that defendant be admonished of his rights at the time when his sentence is imposed. We conclude that the trial court properly admonished defendant pursuant to Rule 605(b).\nAccordingly, for the reasons expressed above, we affirm.\nAffirmed.\nLINDBERG, P.J., and UNVERZAGT, J., concur.", "type": "majority", "author": "JUSTICE INGLIS" } ], "attorneys": [ "G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Thomas F. Baker, State\u2019s Attorney, of Woodstock (William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN W. FAVELLI, Defendant-Appellant.\nSecond District\nNo. 2\u201487\u20140130\nOpinion filed November 18, 1988.\nG. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nThomas F. Baker, State\u2019s Attorney, of Woodstock (William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0618-01", "first_page_order": 640, "last_page_order": 646 }