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  "id": 4265079,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN PETTY, Defendant-Appellant",
  "name_abbreviation": "People v. Petty",
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    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN PETTY, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE MYERSCOUGH\ndelivered the opinion of the court:\nIn September 2004, defendant, Stephen Petty, filed an amended postconviction petition. In March 2005, following an evidentiary hearing, the trial court denied the petition. On appeal, defendant argues the trial court\u2019s denial of his postconviction petition was manifestly erroneous because his counsel failed to file a Rule 604(d) certificate (188 Ill. 2d R. 604(d)) prior to the hearing on his first motion to withdraw his guilty plea. We affirm.\nI. BACKGROUND\nIn August 1999, a grand jury indicted defendant on two counts of unlawful delivery of a controlled substance (cocaine) in an amount more than 15 but less than 100 grams, both Class X felonies (720 ILCS 570/401(a)(2)(A) (West 1998)). In November 1999, the State also charged defendant with a separate count of unlawful delivery of a controlled substance (cocaine) in an amount more than 1 but less than 15 grams, a Class 1 felony (720 ILCS 570/401(c)(2) (West 1998)).\nIn November 1999, defendant entered into a plea agreement with the State whereby defendant agreed to plead guilty to the Class 1 felony of unlawful delivery of a controlled substance (5 to 15 grams), in exchange for the State\u2019s promise to dismiss the two-count indictment for the separate Class X felony charges of unlawful delivery of a controlled substance (15 to 100 grams) and recommend a sentencing cap of IIV2 years. The trial court accepted defendant\u2019s plea, finding that defendant entered into it knowingly and voluntarily.\nIn November 1999, defendant sent to the trial judge certain pro se documents, including a letter indicating he did not wish to plead guilty. Thereafter, defendant\u2019s attorney, Edwin K. Piraino, filed a motion to withdraw the guilty plea or, in the alternative, a motion to reconsider the sentence. Counsel also filed a Rule 604(d) certificate.\nAt the December 1, 1999, hearing on the motion, defendant withdrew his motion to withdraw his guilty plea. On December 10, 1999, the trial court sentenced defendant to an IDA-year prison term within the State\u2019s recommended sentencing cap.\nThereafter, defendant filed a pro se motion to withdraw his guilty plea. On January 14, 2000, attorney Piraino filed a motion to reconsider the sentence or, in the alternative, a motion to withdraw the guilty plea. Counsel did not file a Rule 604(d) certificate.\nIn February 2000, the trial court held a hearing on defendant\u2019s motion to withdraw his guilty plea. The State confessed the motion, stating that the agreed-upon llVs-year sentencing cap was too lenient. The court granted defendant\u2019s motion to withdraw his guilty plea and informed defendant that the State would reinstate the two previously dismissed Class X charges. In February 2000, Piraino withdrew as defendant\u2019s counsel, and Malcolm Barnes was appointed as defendant\u2019s counsel.\nOn June 14, 2000, the day of defendant\u2019s trial, defendant entered a second negotiated guilty plea, under which the State agreed to (1) dismiss count II of the indictment and (2) forego recommending a discretionary doubling of defendant\u2019s sentence, which would have made defendant eligible for a 30- to 60-year prison term (720 ILCS 570/408 (West 1998)). The trial court accepted the negotiated plea.\nPrior to sentencing, defendant filed a motion to reinstate his first plea agreement and the respective UVa-year sentence. The trial court denied the motion.\nAt the July 7, 2000, sentencing hearing, the trial court noted that defendant had filed pro se motions to withdraw his guilty plea and to dismiss the indictments and that defense counsel had filed a supplemental motion to reinstate defendant\u2019s original plea and sentence. The court found defendant\u2019s pro se motion to withdraw his guilty plea premature since sentencing had not yet occurred. The court also found defendant\u2019s motion to dismiss the indictments merit-less. The court sentenced defendant to a 30-year prison sentence in accordance with defendant\u2019s plea agreement.\nFollowing the appointment of new counsel and the denial of defendant\u2019s motion for reconsideration of his sentence and motion to vacate the second plea, defendant filed a direct appeal. Defendant argued (1) he received ineffective assistance of counsel at the time of his second plea agreement, (2) the trial court failed to admonish him of the consequences of withdrawing his first guilty plea, and (3) the State failed to include his prior convictions in the charging instrument as a basis for seeking an enhanced sentence. This court rejected defendant\u2019s arguments and affirmed the conviction and sentence. People v. Petty, No. 4 \u2014 00\u20140777 (January 3, 2002) (unpublished order under Supreme Court Rule 23).\nIn August 2002, defendant filed a pro se verified petition for post-conviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 through 122 \u2014 8 (West 2002)). In his petition, defendant alleged that (1) the attorney that handled his first guilty plea failed to file a certificate in compliance with Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)), (2) he was denied due process because he was not admonished at the time of his plea that a term of mandatory supervised release was part of the negotiated sentence, and (3) he received ineffective assistance of counsel prior to his first guilty plea when his counsel failed to advise or communicate to him an offer by the State of nine years. The trial court summarily dismissed defendant\u2019s petition, finding the petition frivolous and patently without merit.\nOn appeal, this court found that defendant\u2019s allegation that his attorney failed to convey a nine-year offer stated a gist of a constitutional claim. People v. Petty, No. 4 \u2014 02\u20140872 (May 25, 2004) (unpublished order under Supreme Court Rule 23). Therefore, we remanded the cause to the trial court with directions to appoint counsel for defendant and for the entire petition to be docketed for second-stage review. Petty, No. 4 \u2014 02\u20140872.\nOn September 21, 2004, following remand, defendant filed an amended postconviction petition. The petition realleged the original three claims. The petition also alleged attorney Piraino rendered ineffective assistance of counsel because he failed to file the Rule 604(d) certificate and determine defendant understood the mandatory-supervised-release requirement.\nOn March 1, 2005, the trial court held an evidentiary third-stage hearing on the postconviction petition. As is relevant to the issue on appeal, defendant testified as follows.\nPrior to pleading guilty on November 9, 1999, defendant met with Piraino only once or twice. According to defendant, Piraino never discussed with him the motion to withdraw the guilty plea.\nHowever, on cross-examination, defendant admitted receiving a letter from Piraino dated November 24, 1999. A copy of that letter is contained in the record on appeal. In that letter, Piraino advised defendant not to withdraw his guilty plea. Piraino also informed defendant that if the trial court allowed him to withdraw his guilty plea, he would be tried on the two Class X felonies, each of which carried a penalty of 6 to 30 years\u2019 imprisonment. Defendant testified he decided to withdraw his motion to withdraw his guilty plea and proceed to sentencing.\nAfter the trial court sentenced him to HVz years\u2019 imprisonment, defendant testified he again filed a pro se motion to withdraw his guilty plea. Piraino subsequently filed a motion to withdraw the guilty plea on defendant\u2019s behalf but, according to defendant, never discussed the motion with him. On February 24, 2000, the court held the hearing on the motion and allowed defendant to withdraw his guilty plea.\nThe trial court took judicial notice of the court file and transcripts. Defendant rested, and the State presented its case. Piraino testified he met with defendant eight or nine times. After defendant pleaded guilty, defendant told Piraino that he thought the UVa-year cap was too high, and he wanted to withdraw his guilty plea. Piraino spoke to defendant in person to try to talk him out of withdrawing his guilty plea. Piraino also wrote him a letter asking him to reconsider because if defendant withdrew his guilty plea, he would receive a greater sentence. A day before writing that letter, Piraino prepared the motion to withdraw the guilty plea and filed a Rule 604(d) certificate. Defendant later withdrew that motion to withdraw the guilty plea.\nPiraino testified that after the trial court sentenced defendant to IIV2 years\u2019 imprisonment, defendant would not speak to Piraino. Piraino believed he was fired. He admitted, however, that before he withdrew as counsel, he appeared on the motion to withdraw the guilty plea, which was granted.\nOn cross-examination, Piraino stated he filed the first motion to withdraw the guilty plea immediately after getting a copy of defendant\u2019s pro se motion. He did not talk to defendant prior to filing that motion, despite filing a Rule 604(d) certificate saying he consulted with defendant about the grounds. Piraino did not recall whether he filed a second motion to withdraw the guilty plea but admitted he would have followed the same procedure as he did with the first. He did not recall filing a second Rule 604(d) certificate because he did not think he still represented defendant.\nFollowing argument, the trial court found that the second motion to withdraw the guilty plea did not have an accompanying Rule 604(d) certificate. However, the court found that defendant was not prejudiced by his counsel\u2019s failure to file the certificate because the motion was granted. The court further found that defendant forfeited the issue by failing to raise it on direct appeal. Finally, the court noted the failure to file a Rule 604(d) certificate does not raise an issue of constitutional deprivation of rights.\nThis appeal followed.\nII. ANALYSIS\nThe Act (725 ILCS 5/122 \u2014 1 through 122 \u2014 8 (West 2004)) provides a means by which a defendant may challenge his conviction for violations of federal or state constitutional rights. People v. Orange, 195 Ill. 2d 437, 447, 749 N.E.2d 932, 938 (2001). To be entitled to postconviction relief, a defendant must establish a substantial deprivation of federal or state constitutional rights in the proceedings that resulted in the conviction or sentence being challenged. Orange, 195 Ill. 2d at 447, 749 N.E.2d at 938. Trial court determinations on postconviction petitions made after an evidentiary hearing will not be disturbed unless manifestly erroneous. People v. Morgan, 187 Ill. 2d 500, 528, 719 N.E.2d 681, 697 (1999).\nDefendant argues the absence of a Rule 604(d) certificate renders the withdrawal of defendant\u2019s original guilty plea void. Defendant seeks vacation of his current sentence and a remand for proceedings on his original motion to withdraw his guilty plea.\nDefendant has forfeited the issue by failing to raise it on his direct appeal. A postconviction proceeding only addresses constitutional issues that were not, and could not have been, raised and adjudicated on direct appeal. People v. Pitsonbarger, 205 Ill. 2d 444, 456, 793 N.E.2d 609, 619 (2002). The doctrine of res judicata bars issues raised on direct appeal, and issues that could have been raised, but were not, are forfeited. Pitsonbarger, 205 Ill. 2d at 456, 793 N.E.2d at 619. Because defendant could have raised the issue in his direct appeal but did not, the issue is forfeited.\nEven if we were to address the issue on the merits, we would find defendant is not entitled to the relief requested. Pursuant to Rule 604(d), a defendant may not appeal from a judgment entered on a plea without first filing a motion to withdraw the guilty plea. 188 Ill. 2d R. 604(d). If only the sentence is challenged, the defendant must file a motion to reconsider the sentence. 188 Ill. 2d R. 604(d). Counsel representing a defendant who has pleaded guilty must file in the trial court a certificate stating the following:\n\u201c[T]he attorney has consulted with the defendant either by mail or in person to ascertain defendant\u2019s contentions of error in the sentence or the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.\u201d 188 Ill. 2d R. 604(d).\nThe purpose of the Rule 604(d) motion requirement is to permit the trial judge who accepted the plea and imposed the sentence to consider any allegations of impropriety that took place outside the record and correct any error that may have led to the guilty plea. People v. Shirley, 181 Ill. 2d 359, 361, 692 N.E.2d 1189, 1191 (1998). The purpose of this certificate requirement is to ensure \u201ccounsel has reviewed the defendant\u2019s claim and considered all relevant bases for the motion to withdraw the guilty plea or to reconsider the sentence.\u201d Shirley, 181 Ill. 2d at 361, 692 N.E.2d at 1191. The certificate requirement \u201cencourages the preservation of a clear record *** of the reasons why a defendant is moving to withdraw his plea or to reduce sentence.\u201d Shirley, 181 Ill. 2d at 361, 692 N.E.2d at 1191. When Rule 604(d) is violated, the remedy is to remand for the filing of a new motion and for a new hearing on the motion. People v. Janes, 158 Ill. 2d 27, 33, 630 N.E.2d 790, 792 (1994) (reversing trial court\u2019s denial of a motion to withdraw a guilty plea where counsel failed to strictly comply with Rule 604(d) certificate requirement); People v. Dismuke, 355 Ill. App. 3d 606, 611, 823 N.E.2d 1131, 1135 (2005) (involving insufficient Rule 604(d) certificate).\nWhether strict compliance with the Rule 604(d) certificate requirement is necessary when the trial court grants the motion to withdraw the guilty plea is a matter of first impression. Given the purpose of the certificate requirement, we conclude that when the motion to withdraw the guilty plea is granted, the Rule 604(d) certificate requirement becomes irrelevant. Cf. People v. McCaskill, 298 Ill. App. 3d 260, 268, 698 N.E.2d 690, 695 (1998) (finding that where the defendant did not file a motion to withdraw his negotiated guilty plea before moving to reduce his sentence, counsel\u2019s alleged failure to file a Rule 604(d) certificate was irrelevant). It makes no sense to remand the cause for another hearing on a motion to withdraw a guilty plea that has previously been granted.\nDefendant argues that compliance with Rule 604(d) would have provided him the opportunity to make a fully informed decision about his plan to withdraw his guilty plea. However, the purpose of the rule is not to protect defendants from their own poor judgment. The rule ensures that counsel considered all arguments in support of the motion to withdraw the guilty plea. Whether defense counsel reviewed defendant\u2019s claim and considered all relevant bases for the motion to withdraw the guilty plea is irrelevant because defendant received the relief he sought in the motion \u2014 withdrawal of his guilty plea.\nMoreover, the testimony at the evidentiary hearing demonstrated defendant did know the ramifications of withdrawing his guilty plea so as to permit him to make an informed decision. Defendant admitted receiving the November 24, 1999, letter from Piraino informing defendant that if he withdrew his guilty plea, he would be tried on the two Class X felonies, each of which carried a penalty of 6 to 30 years\u2019 imprisonment.\nDefendant also argues that because the filing of a Rule 604(d) certificate is a prerequisite to holding the hearing on the motion to withdraw the guilty plea, all subsequent procedures were void. In support of his proposition, defendant cites People v. Oliver, 276 Ill. App. 3d 929, 932, 659 N.E.2d 435, 438 (1995) (noting that Janes, 158 Ill. 2d 27, 630 N.E.2d 790, \u201cimplicitly held that the proceedings below were fundamentally flawed, not merely void due to a technicality\u201d).\n\u201cA void judgment is one entered by a court that lacks the power to make or enter a particular order.\u201d People v. Johnson, 338 Ill. App. 3d 213, 215, 788 N.E.2d 152, 154 (2003). A voidable order is \u201cone entered erroneously by a court having jurisdiction.\u201d People v. Davis, 156 Ill. 2d 149, 155-56, 619 N.E.2d 750, 754 (1993).\nA trial court that proceeds with a hearing on a motion to withdraw a guilty plea without confirming that counsel filed a Rule 604(d) certificate proceeds in error. See, e.g., Dismuke, 355 Ill. App. 3d at 608, 823 N.E.2d at 1133 (the filing of a Rule 604(d) certificate is a condition precedent to a hearing on the motion to withdraw the guilty plea). This does not render the ruling on the motion void. If the court denies the motion to withdraw, the cause must be remanded for the filing of a new motion and for a new hearing on the motion. Dismuke, 355 Ill. App. 3d at 611, 823 N.E.2d at 1135. However, if the court grants the motion, it is immaterial whether counsel filed a Rule 604(d) certificate because the defendant received the relief requested.\nIII. CONCLUSION\nFor the reasons stated, we affirm the trial court\u2019s judgment.\nAffirmed.\nTURNER, P.J., and McCULLOUGH, J., concur.",
        "type": "majority",
        "author": "JUSTICE MYERSCOUGH"
      }
    ],
    "attorneys": [
      "Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.",
      "Julia Rietz, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and David A. Hibben, all 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. STEPHEN PETTY, Defendant-Appellant.\nFourth District\nNo. 4-05-0213\nOpinion filed August 2, 2006.\nDaniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nJulia Rietz, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and David A. Hibben, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
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