                          NO. 4-06-0382           Filed 10/11/07

                      IN THE APPELLATE COURT

                              OF ILLINOIS

                          FOURTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,         )   Appeal from
          Plaintiff-Appellee,                )   Circuit Court of
          v.                                 )   Schuyler County
WALTER LOFTON III,                           )   No. 05CF40
          Defendant-Appellant.               )
                                             )   Honorable
                                             )   Alesia A. McMillen,
                                             )   Judge Presiding.


           JUSTICE MYERSCOUGH delivered the opinion of the court:

           In March 2006, defendant, Walter Lofton III, pleaded

guilty to aggravated battery (720 ILCS 5/12-4(b)(6) (West 2004))

and criminal damage to government-supported property (720 ILCS
5/21-4(1)(a) (West 2004)).    In April 2006, the trial court

sentenced him to four years' imprisonment for aggravated battery

and a concurrent three-year prison term for criminal damage to

government-supported property.    At the sentencing hearing,

defendant expressed his desire to appeal, and the court thereaf-
ter properly admonished defendant of his appeal rights.     One week

later, the court directed the clerk of the court to file a notice

of appeal.   Defendant appeals, claiming the court erred by

failing to appoint counsel to assist him in perfecting his

appeal.   We remand with directions.

                             I. BACKGROUND

           In October 2005, the State charged defendant with

aggravated battery (720 ILCS 5/12-4(b)(6) (West 2004)) (count I),
criminal damage to government-supported property (720 ILCS 5/21-

4(1)(a) (West 2004)) (count II), and resisting a peace officer

(720 ILCS 5/31-1 (West 2004)) (count III).    On October 26, 2005,

the trial court found defendant indigent and appointed the public

defender to represent him.    On January 26, 2006, defendant waived

his right to a jury trial.

            On March 22, 2006, defendant entered a negotiated

guilty plea to counts I and II.    The State agreed to seek no more

than five years' imprisonment on count I and three years' impris-

onment on count II.    The State also agreed to dismiss count III.

            On April 26, 2006, the trial court held the sentencing

hearing.    At the outset, the court denied defendant's request for

a continuance to retain private counsel.    Defendant's appointed

counsel, Robert A. Jones, then requested a recess to confer with
defendant.    Following the recess, attorney Jones informed the

court that he and defendant had chosen not to present any formal

evidence.    After hearing the arguments of counsel, the court

sentenced defendant to four years' imprisonment on count I and a

concurrent three-year prison term on count II.      The sentencing

order indicates the court also dismissed count III.

            The trial court admonished defendant of his appeal

rights as follows:

                 "THE COURT: *** You have a right to

            appeal.

                 THE DEFENDANT: I want to appeal.

                 THE COURT: Prior to taking an appeal,


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you must file in the trial court within 30

days of today's date, the date on which sen-

tence was imposed, a written motion asking to

have the judgment vacated and for leave to

withdraw your plea of guilty, setting forth

your grounds for the motion.

     If the motion is allowed, the plea of

guilty, sentence[,] and judgment would be

vacated, and a trial date would be set on the

charges to which the plea of guilty was made.

Upon request of the People, any charges that

were dismissed as part of the plea agreement

would also be reinstated and set for trial.

     [Defendant], have you heard what I said
to you about your appeal so far?

     THE DEFENDANT: Yes.

     THE COURT: Pardon?

     THE DEFENDANT: Yes.

     THE COURT: If the [m]otion to [v]acate

the plea 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.   Upon

request of the People, any charges that may

have been dismissed as part of the plea

agreement would be reinstated and also set


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for trial.   If you're indigent, that is with-

out funds, a copy of the transcript of the

proceedings at the time of *** your plea of

guilty and sentence would be provided without

cost to you and counsel appointed to assist

you in the preparation of the motions.

       If the [m]otion to [v]acate the

[j]udgment is denied, and you still desire to

appeal, you must file your [n]otice of

[a]ppeal within 30 days of the date that the

motion was denied.

       And in any appeal taken from the judg-

ment on plea of guilty, any issue or claim of

error not raised in the [m]otion to [v]acate
the [j]udgment and withdraw your plea of

guilty shall be deemed waived or given up.

       Do you understand your rights on appeal,

sir?

       THE DEFENDANT: Yeah.

       THE COURT: Is that a yes?

       THE DEFENDANT: (No response.)

       THE COURT: I didn't hear you, sir.

       MR. JONES: You have to say yes or no.

       THE COURT: Do you want to come back this

afternoon and do appeal rights and then

they'll take you to the Department of Correc-


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            tions [(DOC)] this afternoon?

                 (Discussion off the record between

                 [a]ttorney Jones and the

                 [d]efendant.)

                 THE DEFENDANT: Yes.

                 THE COURT: Very well, defendant remanded

            to the custody of the sheriff for transporta-

            tion to the [DOC]."

The record contains no indication that any further proceedings

occurred.    Because the court remanded defendant to the custody of

the sheriff for transportation to DOC, it appears defendant

responded "yes" to the court's question regarding whether defen-

dant understood his appeal rights and not to the court's question

regarding continuing the admonishments.
            On May 3, 2006, the trial court entered the following

order:

                 "Defendant having stated in court on 4-

            26-06 that he wants to appeal, [c]ircuit

            [c]lerk is directed to file notice of appeal

            on behalf of defendant.    Appellate defender

            is appointed to represent defendant on ap-

            peal."

Also on May 3, 2006, the circuit clerk filed the notice of

appeal.

            On December 4, 2006, defendant filed in this court a

motion for summary disposition.     This court denied the motion.


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                            II. ANALYSIS

          Defendant argues he was denied his constitutional right

to the assistance of counsel for the purpose of protecting his

direct appeal.   Specifically, defendant asserts that when defen-

dant stated he wanted to appeal, the trial court erred by failing

to appoint counsel to assist him in perfecting that appeal.       The

State argues the court was not required to appoint counsel for

defendant where defendant made no request for the appointment of

counsel and did not indicate that he wanted to file a motion to

withdraw his guilty plea.

          Because the facts are undisputed and the appeal in-

volves only a legal issue, this court reviews the issue de novo.

See People v. Woodrum, 223 Ill. 2d 286, 300, 860 N.E.2d 259, 269

(2006).
          Pursuant to Supreme Court Rule 604(d), a defendant may

not appeal from a judgment entered upon a plea of guilty unless

(1) he files a timely motion to reconsider, if challenging only

his sentence; or (2) if challenging his plea, files a timely

motion to withdraw the guilty plea and to vacate the judgment.

210 Ill. 2d R. 604(d), eff. December 13, 2005.       In the case of a

negotiated plea, however, a defendant cannot challenge his

sentence without filing a timely motion to withdraw his guilty

plea and vacate the judgment. 210 Ill. 2d R. 604(d).       Supreme

Court Rule 604(d) further provides, in relevant part, as follows:

          "The motion shall be in writing and shall

          state the grounds therefor.      ***   The motion


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           shall be presented promptly to the trial

           judge by whom the defendant was sentenced

           ***.   The trial court shall then determine

           whether the defendant is represented by coun-

           sel, and if the defendant is indigent and

           desires counsel, the trial court shall ap-

           point counsel."   210 Ill. 2d R. 604(d).

Although Rule 604(d) speaks in terms of a right to counsel after

the postplea motion is filed, it is well settled that Rule 604(d)

provides a defendant with the right to the aid of an attorney in

the preparation and presentation of a postplea motion.     People v.

Barnes, 291 Ill. App. 3d 545, 550, 684 N.E.2d 416, 420 (1997).

In fact, this court has previously held that it is the trial

court's obligation to appoint counsel regardless of whether a
defendant has made a specific request for the court to do so.

People v. Ledbetter, 174 Ill. App. 3d 234, 236-37, 528 N.E.2d

375, 376-77 (1988).    See also People v. Griffin, 305 Ill. App. 3d

326, 331, 713 N.E.2d 662, 665 (1999) (finding a trial court is

required to investigate whether a defendant who pleaded guilty

wants counsel when the defendant manifests an interest in appeal-

ing his judgment and sentence).

           In this case, the trial court properly admonished

defendant in accordance with Supreme Court Rule 605(c) pertaining

to a judgment and sentence entered on a negotiated plea of

guilty.   See 210 Ill. 2d R. 605(c).    In particular, the court

informed defendant that, prior to taking an appeal, he had to


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file, within 30 days, a written motion seeking to have the

judgment vacated and for leave to withdraw the plea of guilty.

See 210 Ill. 2d R. 605(c)(2).   The court also informed defendant

that if he was indigent, counsel would be appointed to assist him

in the preparation of the motions.      210 Ill. 2d R. 605(c)(5).

          Despite these admonitions, however, and despite knowing

defendant had expressed a desire to appeal before receiving the

admonishments, the trial court did not make any further inquiry

of defendant regarding his desire to appeal.      Instead, a week

later, the court directed the clerk to file a notice of appeal

without, it appears, any further contact by defendant.      This

action deprived defendant of his right to appeal.      That is,

because defendant did not file a motion to withdraw his guilty

plea, he could not challenge his plea or sentence on appeal.        See
210 Ill. 2d R. 604(d); People v. Linder, 186 Ill. 2d 67, 74, 708

N.E.2d 1169, 1172 (1999) (holding that a defendant who pleads

guilty in exchange for a cap on the length of his sentence must

file a motion to withdraw his guilty plea before challenging a

sentence imposed within the range of the cap).

          This court recognizes the difficulty facing trial

courts when a defendant expresses a desire to appeal.      Often, a

defendant receives the proper admonitions and then expresses a

desire to appeal by writing a letter to the trial judge or

circuit clerk.   The court is then put in the awkward position of

trying to determine whether, despite the admonitions, the defen-

dant still wants a notice of appeal filed or whether the request


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should be construed as a desire to file the appropriate posttrial

motion.

          However, in this case, the trial court acted without

authority by directing the clerk to file a notice of appeal.

Although defendant had initially expressed a desire to appeal, he

did not indicate that he wanted to appeal after he had received

the appeal admonitions.   Defendant was deprived of approximately

three weeks' time in which to determine whether to file a

posttrial motion.

                          III. CONCLUSION

          For the reasons stated, we remand this cause with

directions to the trial court to strike the notice of appeal and

confirm whether defendant wants to file a posttrial motion.

          Remanded with directions.
          KNECHT and COOK, JJ., concur.




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