SECOND DIV ISION October 17, 2006

No. 1-04-1392

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circui t Court of Plaintiff-Appelle e, ) Cook Coun ty. ) v. ) ) JOE FORD, ) Honorable ) Catherine M. Haberkor n, Defen dant-A ppella nt. ) Judge Presi ding.

JUSTICE SOUTH delivered the opinion of the court: Defe ndan t Jo e For

d ent ered a neg otia ted p lea of gu ilt y toa ch arg e of r

etai l th eft and was sentenced to one yea r of probation. The trial cour t subsequentl y found that defendant had viol ated his probati on and sentenced him to five ye ars' impri sonment. On appeal from tha t judgment, defen dant contends f or the first time that the trial court's failure to admonish him pursuant to Supreme Court Rule 605(b) (188 Ill. 2d R. 605(b)) when he enter

ed his guil ty plea r

equires tha t his cause be remanded. He als o contends that the trial court improperly ignored his pro se claims of ineffective assistance o f counsel, sentenced him to an ex cessive term of five years' impri sonment, and failed to admonish him purs uant to Supreme Cour t Rule 605(a)

(Official Repor

ts Advance S heet No. 21 (October

17, 2001) R. 605 (a), eff. October 1 , 2001) follow ing the impos ition of1-04-1392

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that sentence. On Febru ary 19, 20 03, def endan t entere d a negot iated p lea ofguilty to a ch arge of retail theft, a C lass 3 felony . The charge s temmed from an incident that occurred about 3:40 p.m. on Januar y 5, 2002. The State provide d a factual basis for the plea which show

ed that defendant took thr ee pairs of sung lasses from the N ieman Marcus store on Nor

th Michig an Avenue in C hicago and w alked past the l ast cashier without paying for them. The circui t court sentenced defendant to one year of probation and admonished him as f ollows:

"You have a right to ap peal. If you feel I've been wrong o r unfair in my

decision today , you hav e a right to appeal that. If you cannot afford a law yer, I'l l appoint one for your [ sic]. If you need a copy of a trans cript, I'l l get that to you, also. Once thirty

days passes

by, you waiv e your ri ghts to appea l. You must

motion the ca se back

up befor

e me within t he next thir

ty daysand giv e me some groundswhy you wi sh to do that." Defendant did not file a motion to w ithdraw h is guilt y plea or otherwis e attempt to perfect an appeal from th e judgment enter ed on it. On August 11, 2 003, the State was granted l eave to file a violatio n of probation (VOP) petiti on alleging that defendant had committe d the offense of retail the ft on August 1, 2003. The public defender w as appointed to r

epresent defendant, and at a1-04-1392

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status hearing held on Septem ber 5, 2003, defe ndant stated that he had no confidence in his counsel 's ability

to represent him, and that hiscounsel had faile d to discuss the alleged pro bation viol ation wit h him. The court o pined that his counsel wasan excell ent attorney and advised him that attorn eys are sometimes "reluctant to discu ss cases in the lock up." The court also ex plained that defendant had already be en arraign ed on the VOP petition which al leged that he ha d violated his probation by committin g the offense of retail theft. At the status hearing held Octobe r 14, 2003, defen dant complained ab out his counsel's "l ack of professional ism in conferences ," asserted that she had refused to defend him, and reques ted the appointment of a "pro bono " attorney. The court stated that its conce rn was w hether counsel was competent and able to repr esent defendant, denied his req uest, and reite rated that counse l was a "v ery competent, able and extremely

experienced attorney." On November 10, 2003, defendant agai n complained about his coun sel's per forma nce and lack ofadvocacy du ring the st atus he aring. On February

26, 2004, the tri al court conduc ted a hearing on the VOP petiti on where the parties stipulated that def endant had previously pleaded guilty to felony retail theft in case No. 02 CR 1814 and w as sentenced to one year of probati on. Obi Uwakwe, a loss pre vention inv estigator at the Saks Fi fth Avenue men's s tore on North Michigan Avenue in C hicago, then testified that about 12:50 p.m. on Augus t 1, 2003, he saw defendant pic k up a whi te Burberry hat, place it

in his left poc ket, and leav e the store. Uw

akwe radi oed investi gator Jeij uan Bouldin, w ho was located across thestreet,1-04-1392

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and Boul din a nd ot her in vesti gato rs de tain ed de fen dan t on Mi chiga n Aven ue. U wakwe identified defendant, r

eached into his left pant pocket, and recovered the white ha t defendant had taken from the s tore. Uwakwe confir med that the hat was for sale by Sak's Fifth Avenue for $95. Defendant testified that he walked into the store on the date in q uestion, spray ed on some cologne, and lef t. He denied removing the hat from th e store. The trial court found Uwakwe's testimony credible and sufficient to prove that defendant had v iolated his probation in case No. 02 CR 1814. A presentence hearing was held on March 24, 200 4. There, defen dant orally alleged that counsel would not allow him to talk to her supervisor. Counsel den ied this accusation, and the assista nt State's Attorney informe d the court that she had he ard counsel tell defend ant to call her supervisor. In the presentence investigation repo rt (PSI), defendant al leged:

"I was deprived of my due process rights. I didn't know w hat evidence was goi ng to be used ag ainst me and I have a rig ht to know. There was no fairness. My counsel did not prov ide effective r epresentation." On April 22, 2004, the trial court conducte d a sentencing hearing at which the State presented ev idence of defendant's four pr ior felony convictions . Defense counsel argued in mi tigation tha t Saks Fifth Avenue suffered no financial loss because t he hat was retur ned, and that no one w as injured. Counsel also advised the court that1-04-1392

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defendant had been gainfull y employe d and that his w ife of four years ha d passed away. Defendant declined t he court's i nvitation to add anythin g in alloc ution. The court then sente nced defenda nt to five years' imprisonment for his conviction of retail theft, an d admonished him as f ollows:

"You have a right to ap peal. If you feel that I've bee n wrong o r unf air in the d ecis ion o f you r case toda y, you h ave a right to appeal. If you can't afford a law yer, I'l l get one for you. I f you can' t af for d a tra nscri pt of the p roce edin gs tod ay, I'll get to that you [ sic], al so. O nce t hirty d ays pa sses by, you wai ve your

rights to appeal." On appeal, defe ndant first contend s that the circuit court's failure to adm onish him in accorda nce with R ule 605(b) at the time he entered his guil ty plea r equires tha t his cause be r

emanded for proper admoni shments. The State i nitially responds that defendant's failure tofile a post-pl ea motion is a j urisdicti onal defect whi ch requir es the dismissal of thi s claim. We agree. Our supreme court recently made clear tha t "[i]n noncapital cases an ap peal is perfected by the timely fili ng of a notice of appeal , and it is t his step w hich vests the appellate court

with ju risdicti on." In re J .T. , 221 Ill. 2d 33 8, 346 (2006), c iting 188 Il l. 2d R. 606( a). Su preme C ourt R ule 604 (d) pr ovid es that

in or der toappeal from a judgment entered on a guilty plea, defendant is r

equired to fil e in the cir cuit court a written motion to wi thdraw hi s plea or re consider his sentence. Official Reports1-04-1392

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Advance Sheet N o. 4 (Februar y 16, 2005), R. 604(d), eff. February 1, 2005. In J.T. , the supreme court held tha t where defendant has no t filed a timely notice of appeal from the order sentencing him to probat ion, a written motion to withdraw his plea or recons ider his se ntence, or a moti on for leave tofile late notice of appeal, "the appellate court

ha[s] no juri sdiction to consider any issues ari sing from eith er his gui lty plea or his s entence." J.T. , 221 Ill. 2d at 346-47. Consi stent wit h that ruling , we find here that defendant's failure to file any of the aforementioned documents leaves us without j urisdicti on to consider whether he r eceived pr

oper admonishments w hen he entered his g uilty pl ea. Accor dingl y, we dismi ss tha t clai m. Defendant next conte nds that his cause should be rem anded for inquiry into his allegations

of ineffective assi stance of counsel du ring the pr obation revocation proceedings , pursuant to People v. Kr ankel , 102 Ill. 2d 18 1 (1984). The State responds that Krankel does not apply to pretrial proceedings and that the cour

t's consider

ation of defendant's claims was sufficient . In Krankel , 102 Ill. 2d at 187-89, defendant presen ted a po sttri al moti on all eging ineffect ive a ssis tance o f counse l, and the sup reme court remanded the m atter for a new hearing on defen dant's motion with newly appoin ted cou nsel. Fol lowing Krankel , it has been hel d that appointment of new counsel is not

automatically

required when defendant pres ents such a post trial motion alleging ineffective ass istance of counsel

. People v. Moore , 207 Ill. 2d 73 , 77 (2003). Rather, the tr ial court mus t conduct an adeq uate inquir y into the fact ual basis for defendant's claim, a nd, if it finds the claim to be nonmer itorious or pertaining only to1-04-1392

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matters of trial strategy , it may deny the motion w ithout appointin g new co unsel. People v. M ilton , 354 Ill. App. 3d 283, 29 2 (2004 ), citing Moore , 207 Ill. 2d at 78. The operative concern for the r eviewi ng court i s whether the trial court conducted an adequate inquiry into defenda nt's pro se allegations

. Moore , 207 Il l. 2d a t 78. To accomplish thi s, the trial court may converse w ith counsel r egarding the facts surrounding the allegat ions or hold a brief discuss ion with defendant. Milton , 354 Ill. App. 3d at 292. The tr ial court may also eval uate defendant's clai ms based on its knowledge of counsel's perform ance at trial or the insuff iciency of defendan t's allegations

on their face. Milton , 354 Ill. App. 3d at 292. In addi tion, wher e the trial court's probe reveals that defen dant's claims are "'conclusory, misleading, or legally imm ater ial' o r do 'n ot br ing to the t rial c ourt 's at tent ion a colo rabl e cla im of inef fec tive assistance of coun sel,' the tr ial court may be excused fro m further inqui ry." Peop le v. Burks , 343 Ill. App. 3d 765, 774 (2003). Here, unlike Krankel , defendant's alleg ations wer e oral, and w ith the exception of the complaint ar

ticulated in the PSI, they occurred pr ior to the hear ing on the VOP petition. Nev

ertheless, th e trial cour t allowed defendant to present hi s complaints an d responded to them i n open court. The record shows, however, that defend ant's allegations were facially insufficient. Hi s stated lack of confidence in VOP counsel and counsel 's lack of professionalism were set forth in a general and conclusory manner ( People v. R ucker , 346 Ill. App. 3d 873, 883 (2004)), and his claim that counsel ref used to meet with him1-04-1392

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was contr

adicted by h is further all egation that counsel had been unpr ofessional duri ng conferences. In addi tion, defendant's con tention that he w as unaware of the allegations in the VOP petition and the evidence against him was refuted by the fa ct that defendant had been prev iously arraigned on i t. His further allegatio n that counsel refused to let hi m speak wit h her superv isor wa s denied by counsel and contr adicted by the prosecutor

who heard ot herwise. Finally , defendant's alleg ation that counsel refused to def end him was shown to be spurious given the record of counse l's represe ntatio n of him at the VO P hearin g. We, thus, find no cause for a remand. Burks , 343 Ill. App. 3d at 777. Th e record shows that the court consi dered defendant's all egations of ineffectiv e assistance o f counsel as they

arose and deter mined, in essenc e, that defendant did not bring forth a colorable claim of inef fective assistance of coun sel. In so conclud ing, we fi nd this case r eadil y dis ting uishab le from Moore , relied upon by defendant. In Moore , 207 Ill. 2d at 76-77, defendant filed t wo wr itten pro se motions assert ing the ineffectiv e assistance o f his trial counsel and req uesting appointment of new counsel. The tri al court failed to make any i nquiry into the allegations

and concluded that

his claimscould be resol ved by t he appointment of different counsel on ap peal. Moore , 207 Ill. 2d at 79. Here, unl ike Moore , we ha ve found that the court ad equately addressed defendant's allegations , though oral , and that no further in quiry

is requi red. Defendant next con tends that the sentence imposed by the circui t court was1-04-1392

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excessive in light

of his particu lar circ umstances and backg round. The State r esponds that defendant wai ved this i ssue by fail ing to file a motion to recons ider his se ntence. Although waiver l imits a party's ability to raise an ar

gument, it doesnot preclude our jurisdict ion to consider

it. People v. Benford , 349 Ill. App. 3d 721, 734 (2004)

. Accor dingl y, we wi ll add ress defendant 's cl aim. In doing so, we afford grea t deference to the ci rcuit cour t's sentencin g decision and will not substitute our judgment fo r that of the circuit court merely because we would have wei ghed the rele vant factors differently. People v. Fern , 189 Ill. 2d 48 , 53 (1999). Absent an abuse of dis cretion, a se ntence wit hin the appropri ate range w ill be affirmed. People v. C oleman , 166 Ill. 2d 247, 258 (1995 ). Here, defendant was convic ted of a Class 3 fel ony whi ch was puni shable by tw o to five year s' imprison ment. 730 ILCS 5/5- 8-1(a)(6) (West 2004). The record show s that the court was apprised of defendant' s employment hi story, th e loss of his w ife, and the fact that no person o r entity had been physi cally or financially

harmed in the cr ime. The court was

also awar

e of defendant's four prior felony conv ictions and s entenced him to the maximum term of five years . This sentence falls wit hin the statutor y parameters

and, under the circumstances, we find that the sentence doe s not vary greatly from the spirit and purpose of the law and is not manifestl y disprop ortionate to the nature of the offense. Fern , 189 Ill. 2d at

54. Finding no abuse of discr etion, we ha ve no basisfor modifying it. Peoplev. Al mo , 108 Ill. 2d 54, 70 (1985). Defendant f inally contends that the circuit court failed to properly admonish him1-04-1392

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pursuant to Supr

eme Court Rule605(a) (Offici al Reports A dvance Sheet N o. 21 (October 17, 2001) R. 605(a), eff . October 1, 2001) afte r imposing sentence. He particularly asserts that the circuit

court failed to advise him that he was required to file a wr itten motion to recons ider his se ntence to avoi d waiv er of his sentenc ing clai ms. We agree that the circuit court's admoni shments wer e deficient in thi s regard. However, we find that remand is not required where we have considered defend ant's sentencing c laim in thisappeal, and it i s clear that he was not pr ejudiced or den ied real justice as aresult of the i nadequate admonishments. People v. H enderson , 217 Ill. 2d 449, 466 (2005). For these rea sons, we di smiss defendant's c laim regar ding Rule 605(b) admonishments and affirm the judgment of the ci rcuit cour t of Cook County

. Dismissed i n part; affirmed in par t. W OLFSON, P.J., and KARNEZIS, J., concu r.