                                                                     FIFTH DIVISION
                                                                     March 31, 2006




No. 1-04-1289

THE PEOPLE OF THE STATE OF ILLINOIS,                         )       Appeal from the
                                                             )       Circuit Court of
                Plaintiff-Appellee,                          )       Cook County
                                                             )
       v.                                                    )
                                                             )
KENNETH SMITH,                                               )
                                                             )       Honorable
                Defendant-Appellant.                         )       Colleen McSweeney-Moore,
                                                             )       Judge Presiding.

       JUSTICE O=MARA FROSSARD delivered the opinion of the court:

       Defendant Kenneth Smith pleaded guilty to first degree murder and was sentenced to 25

years in prison. On appeal, defendant contends that his right to counsel was violated when the

trial court heard his pro se motion to vacate his guilty plea without determining whether he

desired counsel and without securing a waiver of that right. Defendant further contends that the

compulsory extraction of his blood and the perpetual storing of his DNA profile violated his

constitutional right to be free from unreasonable searches and seizures.

                                         BACKGROUND

       On January 12, 2004, defendant entered a negotiated plea of guilty to one count of first

degree murder and received a 25-year sentence. The trial court found the plea was knowing and

voluntary and found the factual basis presented by the State to be sufficient to support the plea.

On the same date, the trial court also entered an order directing defendant to produce a blood

sample for forensic DNA testing.
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       Defendant thereafter drafted a pro se motion to withdraw his guilty plea, and on February

10, 2004, he placed it into the prison mail system. The clerk filed the motion on February 19,

2004. In the motion, defendant alleged that (1) two public defenders that represented him,

Anthony Eben and Rodney Carr, were ineffective for failing to investigate and violated his right

to a speedy trial; (2) his plea was coerced; (3) attorney Carr had a conflict of interest; and (4) his

case was pleaded in order to benefit him in an unrelated case and in order to benefit Carr and the

prosecutor.

       On February 20, 2004, the trial court held a hearing on the motion at which defendant

was not present. At the hearing, defendant=s attorney, Rodney Carr, informed the court that

defendant had made allegations in his motion against both Carr and prior counsel, Anthony

Eben. The trial court passed the case in order to writ defendant in for the hearing and noted, AI

may need to appoint private counsel if this [is] going to get to a hearing.@

       On March 15, 2004, the trial court again heard the pro se motion to withdraw the guilty

plea, this time with defendant present. The trial court asked defendant if he wished to make

argument or preferred to stand on his motion. Defendant responded that he would stand on the

motion, stating, AWell, yes. It is [sic] a lot of things going on. I guess I=m ready. I stand on my

instrument.@ After hearing argument from attorney Carr, who was present but not acting as

defendant=s attorney, the assistant State=s Attorney, and defendant himself, the trial court found

no basis to withdraw the plea. The court concluded that defendant sought to withdraw his guilty

plea Anot due to any errors in the proceeding or on the part of his attorney, but rather simply

because apparently he has changed his mind,@ and that defendant was Aa bold-face liar.@ Finding



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that the record supported the conclusion that defendant=s guilty plea was knowing and voluntary,

the trial court denied the motion to withdraw the plea.

                                            ANALYSIS

       On appeal, defendant contends that his right to counsel was violated when the trial court

allowed him to proceed pro se on his motion to vacate the guilty plea without determining

whether he desired counsel and without securing a waiver of the right. Defendant further

contends that the compulsory extraction of his blood and the perpetual storing of his DNA

profile violates his constitutional right to be free from unreasonable searches and seizures.

                                        I. Right to Counsel

       Defendant contends that contrary to constitutional requirements (U.S. Const., amend. VI;

Ill. Const.1970, art. I, ' 8) and Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)), the trial court

heard his pro se motion to vacate the guilty plea without first determining whether he desired the

assistance of counsel and securing a waiver of that right. Generally, a reviewing court should

not reach constitutional issues if the case can be determined on other grounds. People v. Nash,

173 Ill. 2d 423, 432 (1996). Here, we need not address defendant=s constitutional arguments

because we are able to resolve the issue presented by applying Supreme Court Rule 604(d). We

review a trial court=s compliance with supreme court rules de novo. People v. Breedlove, 213 Ill.

2d 509, 512 (2004).

       At the time the trial court ruled on defendant=s pro se motion to vacate his guilty plea,

Supreme Court Rule 604(d) provided that if a defendant is challenging a guilty plea, A[n]o appeal

from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days



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of the date on which sentence is imposed, files in the trial court *** a motion to withdraw the

plea.@ 188 Ill. 2d R. 604(d). When such a motion is filed, A[t]he trial court shall then determine

whether the defendant is represented by counsel, and if the defendant is indigent and desires

counsel, the trial court shall appoint counsel. If the defendant is indigent, the trial court shall

order a copy of the transcript as provided in Rule 402(e) be furnished the defendant without cost.

The defendant=s attorney shall file with the trial court a certificate stating that the attorney has

consulted with the defendant either by mail or in person to ascertain defendant=s 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.@ 188 Ill. 2d R. 604(d).

       When a pro se defendant indicates to the circuit court that he wishes to withdraw his

guilty plea and appeal, the protections offered by Rule 604(d), i.e., the appointment of counsel

and the attorney certificate, are automatically triggered. See, e.g., People v. Griffin, 305 Ill. App.

3d 326, 330 (1999) (AAfter a defendant demonstrates his desire to appeal, the trial judge is

obligated to inquire whether the defendant seeks counsel@). ABecause of the >strict waiver

requirements of Rule 604(d), fundamental fairness requires that a defendant be afforded a full

opportunity to explain his allegations and that he have assistance of counsel in preparing the

motion.= @ People v. Velasco, 197 Ill. App. 3d 589, 591-92 (1990), quoting People v. Ledbetter,

174 Ill. App. 3d 234, 237-38 (1988); see also People v. Pegues, 277 Ill. App. 3d 884, 888 (1996);

People v. Barnes, 263 Ill. App. 3d 736, 738-39 (1994); People v. Adams, 74 Ill. App. 3d 727,

731 (1979); People v. Moore, 45 Ill. App. 3d 570, 572 (1976).



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       A trial judge is obligated to appoint counsel in post-plea proceedings, even without a

specific request from the defendant, unless the trial court finds that the defendant knowingly

waived the right to appointed counsel. People v. Hinton, 362 Ill. App. 3d 229, 232 (2005). In

Hinton, the defendant filed a pro se motion to withdraw his guilty plea. Hinton, 362 Ill. App. 3d

at 230. At the hearing on the motion, the trial court did not appoint counsel or obtain a knowing

waiver of the defendant=s right to counsel, but proceeded to dismiss the motion. Hinton, 362 Ill.

App. 3d at 232. On appeal, this court found that the trial court erred as a matter of law by failing

to comply with Rule 604(d), reversed, and remanded. Hinton, 362 Ill. App. 3d at 234.

       The Hinton court explained that Supreme Court Rules 604(d) and 605(b) must be read

together. Hinton, 362 Ill. App. 3d at 232, citing People v. Wilk, 124 Ill. 2d 93, 103 (1988).

Under Rule 605(b), after a defendant has pleaded guilty and has been sentenced, the trial court

must give certain admonishments concerning how to perfect an appeal, including an

admonishment concerning the postplea motions that must be filed and an admonishment that Aif

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

preparation of the motions.@ Official Reports Advance Sheet No. 21 (October 17, 2001), R.

605(b)(5), eff. October 1, 2001. The Hinton court explained that when read together, Rules

604(d) and 605(b) require a trial court to appoint counsel to an indigent defendant in postplea

proceedings unless the trial court finds that defendant knowingly and intelligently waives the

right to counsel. Hinton, 362 Ill. App. 3d at 232-33, citing Ledbetter, 174 Ill. App. 3d at 234.

The Hinton court rejected the State=s argument that the defendant=s waiver of his right to counsel

at an earlier stage in his criminal proceedings was applicable to the proceedings regarding the



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motion to withdraw the guilty plea. Hinton, 362 Ill. App. 3d at 232.

       Here, as in Hinton, after defendant was sentenced, the trial court admonished him

according to Rule 605(b) that if he wished to appeal and was Awithout funds to hire an attorney

or to pay for a transcript of the proceedings, those will be given to you.@ Then, at the hearing on

the pro se motion to withdraw the guilty plea, the trial court addressed defendant as follows:

                       ATHE COURT: The Defendant filed a pro se motion to

               withdraw his plea of guilty and vacate his sentence, and it was

               docketed on the last date, which was 2-20.

                       Mr. Smith, are you ready to proceed on your motion? Do

               you have any additional argument other than what is contained in

               your motion?

                       THE DEFENDANT: Well, yes. It is [sic] a lot of things

               going on. I guess I=m ready. I stand on my instrument.

                       THE COURT: You stand on what you wrote?

                       THE DEFENDANT: I stand on what I wrote.@

Following this short exchange, the trial court addressed defendant=s former attorney and the

Assistant State=s Attorney, asking for their responses to the written motion.

       Once defendant filed his pro se motion to withdraw his guilty plea, the trial court was

obligated either to appoint counsel, even without a specific request from defendant, or to make a

finding that defendant knowingly waived the right to appointed counsel. See Hinton, 362 Ill.

App. 3d at 233. Here, the trial court asked defendant whether he wished to proceed on his



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motion or make additional argument. However, the trial court did not appoint counsel for

defendant, inquire whether defendant sought counsel, or obtain a knowing waiver of defendant=s

right to counsel to assist him with his postplea motion. Accordingly, we find that the trial court

failed to comply with Rule 604(d).

       The State asserts that despite the trial court=s noncompliance with Rule 604(d), a remand

is not necessary in this case because defendant has not established that the denial of his motion

caused him prejudice. We disagree. In People v. Janes, 158 Ill. 2d 27, 34 (1994), our supreme

court explicitly rejected the State=s argument that Awhen it can be determined on the record that a

defendant has not been prejudiced by any violations of Rule 604(d), a remand for new

proceedings would serve no purpose.@ Moreover, the State=s argument in this case invites us to

weigh the merits of the arguments set forth in defendant=s pro se motion. In People v. Barnes,

291 Ill. App. 3d 545, 551 (1997), the court held that A[i]t would be contrary to the purpose of

[Rules 604(d) and 605(b)] to draw a legal conclusion about a defendant=s [postplea] motion

before he has had the opportunity to consult with an attorney to ensure that there is legally

>adequate presentation of any defects= in his guilty plea proceedings.@ Following the authority of

Janes and the reasoning of Barnes, we reject the State=s argument and conclude that this case

must be remanded.

                                         II. DNA Profile

       Defendant contends that the compulsory extraction of his blood and the perpetual storing

of his DNA profile pursuant to section 5-4-3 of the Unified Code of Corrections (730 ILCS 5/5-

4-3 (West 2002)) violates his constitutional right to be free from unreasonable searches and



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seizures. Because we are remanding this case for further proceedings, it would be premature to

rule on this issue at this time.

                                        CONCLUSION

        For the reasons explained above, we reverse the judgment of the circuit court denying

defendant=s motion to withdraw the guilty plea and remand the cause for further proceedings

consistent with this opinion.

        Reversed and remanded.

        GALLAGHER, P.J., and O=BRIEN, J., concur.




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