FIFTH DI VISI ON December 3, 2010

No. 1-09-0418

THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. v. ) ) 07 CR 8322 LEE WIG OD, ) ) The Honorable

Defend ant-App ellant. ) Wi ll ia m G . La cy, ) Judge Presi ding.

JUSTICE TOOMI N deliver ed the opi nion of the

court: Here, we must determine whether prejudice inuring from purported inadequate g uilty plea admonishments was c ompounde d by the trial court’s ex parte

denial of defenda nt’s motion

to reconsider sentence, thereby providing the basis for vacature of the plea . Following a plea of guilty to the offe

nse of failure to support, defendant, L ee Wigod, was sentenced to serve 18 months’ imprisonmen

t and orde red to pa y r estitution totaling $85,802. D efenda

nt’s pro se motions to reduce his sentence and correct the re stitution order were denied. He now appeals contending: (1) he wa s inadequately a dmonished of the consequences of his plea and his appeal rights pursuant to Supreme Court Rules 604 and 605 (210 I ll. 2d Rs. 604, 605); (2) the denia l of his pos tplea moti ons violat ed Supre me Court Ru

le 604 (21 0 Ill. 2d R.1-09-0418

2

604); (3) the scope of the restitution order was bey ond the authority of the trial c ourt; and (4) the restitution order is inadequate. Although defendant’s ope ning brief asserted that the enactment under which he was charge d violated the “single subject rule,” he has since a bandoned that contention. For the reasons that follow, we vacate the judgment of the circuit court and remand for fur ther pro ceeding s. BACKGROUND Defend ant was c harge d by indictmen

t with a sin

gle cou nt of the o ffense

of failur e to support, pursuant to the Non-Support Punishment Act (750 IL CS 16/15(a)(4) (West 2006)). The indictmen t alleg ed defe

ndant: “[W]illfully

failed to pay a support obligat ion requi red unde r a cour t * ** ord er for support and the obligation has remained unpaid for a period long er than one y ear, or is in arrears in an

amount greater than twenty thousand dollars ($20,000) and he has the ability to provide s upport, and s aid offe nse is bas ed upon a

series o f such ac

ts performed at different times by [defendant].” The insta nt prosec ution initia

lly p roceed ed to a be nch tria l on Dece mber 17, 2 007. Afte

r a sing le witness testified, the matter was continued. On January 28, 2008, defendant’s counsel were gra nt ed l eav e to wit hdr aw a nd s ubs ti tu te c oun sel ent ere d an app ear anc e on def end ant ’s b eha lf. In turn, the matter was continued from time to time, until August 5, 2008, when defendant ele cted to en te r a bl in d p le a o f g ui lt y. After ascertaining defe

ndant’s desire to change his plea, the trial judg e stated: “You are charged in this case w ith a crime of failure to support. T ha t is a1-09-0418

3

Class 4 felony. What that means is when y ou plead guilty, the

nit will be up

to me to sentenc e you any

where f rom proba

tion up to time in th e penitentiary, a nywhere froma minimum of

one y ear up to a maximum of

three y ears, and that would carry one yea r of mandatory

supervised release which is what they used to call parole.” Defendant indicated he understood and changed his plea to that of guilty . The trial judge then admonished defendant as to the rights he was giving up by cha nging his plea. The judge a dded: “And you understand that I have the rea lm to sentence you to any of those possible sentences , do you understand that.”

(Emphasis added.) Defendant indicated that he did. Thereafter, the State offere d the following factual basis for the plea. De fendant and Susan Wigod-Giffen married in 1986. A daughter , Carley, wa s born from this union in 1990. Defend ant and Su san sepa

rated in 1993. The

separa tion agr eement a warded custody of Carle y to Susan and obligated defendant to pay $125 per week in child support. Thereafter, on De cember 29, 1995, a judgment of dissolution of marriage was ente red. A marital settlement agreement was incorporated into the judgment, providing, inter alia , that Susan would retain custody of Carley, that def

endant was to pay

$150 per week in child support, along with health care and dayca re costs, and repay

ment of $5,000 defendant withdrew from Carley ’s bank account. Because defendant was a

lready $2,716 in ar

rears at the time of the time of the dissolution, by operati on of the i

nitial sep aration

agree ment, he w as order

ed to pay $237.65 pe

r month unt

il satisfied. Neither the arrearag e nor the $5,000 repay ment was made. On September 10, 2002, an order was entered reflec

ting an arrearag e totaling $48,300. Defendant was then held in contempt1-09-0418

4

of court. A modified order was entered on Aug ust 12, 2003, based upon defendant’s claimed loss of income, reducing his obligation to $234 per month, pay able in fortnightly

installments of $117. On July 7, 2005, an order was e ntered reflecting a child support ar rearage totaling $101,928, as well as amounts due and owing for Carley ’s dayca re. Defendant continually failed to pay and did so for a

period exceeding one y

ear. According to the State, documentary evidence would further demonstrate an ability to pay as shown, inter alia , by bank rec ords reflecting deposits of $30,000 into defendant’s individual bank account during a period of time when he claimed only $3,000 in income. Additionally , the evidence would show defendant rece ived two $5,000 cash loans from his co-worker, Robert Kenig. Yet, ac cording

to the State , none of

this money

was used to reduc e his outsta

nding child support obligation. In 1996, defenda nt married Lori (Weedsman) Wigod. D uring their union, two condominiums were purchased in Chicago for a pproximately $430,000 and $971,000. Additionally, they

owned two cars, took vacations annually , and went on cruises. During 2004 and 2005, defenda

nt was emp loy ed in a pos ition wher e he ear ned a sal ary , together with commission s. Defe

ndant per sisted in th

e nonpay ment of his

obligat ions. Additiona

lly, the State

repres ented tha

t the willf ul chara cter of defenda nt’s cond uct could be demons trated in

severa l way s. Defe

ndant had underta ken numer

ous efforts and ta

ctics to delay the proc eeding s in the civ il court, i ncluding filing a variety of frivo lous and ba seless motions. Furthermore, he filed for bankruptcy on so many occa sions that the United States Bankruptcy

Court barred him from further petitions without first obtaining leave of cour t. Moreover, defendant’s ex-wife, Susan, would testify that in 1993, at the time of the initial1-09-0418

5

separa tion, def endant st ated: “Y ou will re gret th

is decision. I w

ill drag you through the cour ts, and you will never se e a dime.” Defense counsel stipulated to the majority of the State’s factual basis. However, defendant refused to stipulate to the full measure of the a rrearage as de scribed by the pr osecutor. The State agreed that the actua l amount owed required further discussion and ultimate resolution by the parties. Ne

vertheless, defense counsel stipulated that the origina l judgment “was for $101,000 three ye ars ago.” The trial court accepted the stipulation and upon rece iving the plea added: “I find the defenda

nt does understand the nature of the charg e against him and the possible p enalties , that this p lea has b een made freely and volun

tarily and that a factual basis does exist for the plea; therefore, the plea will be accepted. There will be a fin ding o f guilt y and judgm ent wi ll be e ntered on th at fin ding. Sir, even though y ou have p led guil

ty in this case , yo

u do have certain appellate rights; but in order for y ou to exercise those rights, within 30 day s you must file with this court a motion asking the court to withdraw y our plea of guilty

. That motion must be in writing and as I stated, filed within 30 day s of today’s date. In that motion y

ou must put every claim of e rror or any

issue or claim of error regarding

the plea of guilty

or this proceeding and any aspect of this hearing. If y ou leave any

thing out and the motion is denied, that issue will be deemed waived on appeal.”1-09-0418

6

In tur n, defen dant aff irmed his u

ndersta nding of the fore going

admonishment. At the sentencing hearing, de fendant’s ex-wife, Susan, testified to the couple’s marriag e, separation, dissolution, as well as defendant’s conduct therea fter. Much of her testimony mirrored the factual basis offered by the State at defendant’s plea. According to Susan, the entry of the dissolution was delayed be cause defendant twice failed to produc e funds to resolve the arrearage a

ccumulated during their separation. Following a court-mandated mediation, defendant approached Susan and the following occur red: “He begg ed me not t

o follow th

rough w ith the divo

rce. An d when I told him that I was procee ding, he told me that he would dragme thr ough t he cou rts t hrough the rest of my life a

nd bankrupt me.” Ultimately, she ag

reed to entry

of the dissolution without first receiving that pay ment. Defendant never satisfied his financial obligations under the ag reement, including, inter alia , child sup port, medical, dental, and educational expenses for Carley . Additionally, defendant did not re pay the $5,000 he took from an inheritance meant for Carley . Consequently, Susan has expended significant time and resources since the dissolution in order to compel pay ment. Susan testified to tables she created listing pay ments defendant made. During 2004, he paid a total of $1,170. Susan indicated that defendant never told her where he was employe d during the 12 y ears leading up the sentencing. L ikewise, he had repeatedly represented to the civil court he was unemployed. Howe

ver, Susan, with the help of her current husband, deter mined that defendant

was em ployed at one po int w ith R evere M ortgage. Throu gh thi s conn ectio n, she spoke to Ken ig, who work

ed there as well, a nd learned of the

$10,000 lo an he mad

e to defe ndant.1-09-0418

7

According to Susan, during periods of time when de fendant was not pay ing support he took vaca tions and e

ven brou ght Car ley to Arizona , Las

Vegas , Florida , and othe r place s, as well as taking her on a cruise. When confronte d about these expenditures, defendant explained that he would do what he wanted to do. Susan further described de fendant’s failure to reimburse her for the cost of an airline ticket he purchased using her airline miles. Though this was incorporated into the agreement at the time of the dissolution, defendant failed to make the required reimbursement. At one point defendant was plac ed in handcuffs during a civil hearing and giv en 24 hours to come u p with a “p

urge a mount” in order to a

void jail. Wh

ile the re cord is not explicit on this point, it appears defendant did so. In a statement read to the c ourt, Susan acknowledged defendant’ s payment of support for a “brief time” following the divorce. Othe rwise, he claimed he was “unemploy ed and unemployable *** had no inc ome, that he was destitute, he was indigent.” Although she maintained records of pay ments made at various points, she acknowledged that her table might not cover all of the pay ments he ma

de. Neve rtheless , defend

ant had a n opportun

ity t o establish the amoun

ts he paid prior to the entry

of the jud

gment f or $101,9 28 aga

inst him. The parties stipulated that defendant filed for bankruptcy 10 times. On the final occasion, defenda nt’s petit ion was dismissed with

prejudic e. Moreover, the bankrup tcy

court ba rred him from further filings without first obtaining leave of c ourt. Defendant’s current wife, L ori, testified to her ownership of two condominiums, valued at $430,000 and $971,000, as well as two vehicles. While both of the properties were purc hased during her marr

iage to defenda nt, his name is not on e ither of t hem. Howe

ver, a home equity1-09-0418

8

line of credit was obtained in both of their names. Likewise, she purchased the two vehicles and placed t hem in her

name. Lori further explain ed that sh e did not f

ile joint ta

x returns w

ith defenda nt and did n

ot know what he ea

rned. She

describ ed givin

g defe ndant $1, 600 for a

child support payment at one point. Additionally , she had occasionally

assisted in the payment of attorneys in the civil ca se and offered to pay defendant’s bond. Although defendant contributed money to their marital expenses, she pa id most of the bills. She did not give defendant an allowance of any

kind. The parties entered into several documentar y stipulations, essentially relevant to the domestic relations proceedings. Defenda nt also offered several rece ipts of payments made during 2008 for child support, totaling $2,760. Additionally , defendant tendered a cashier ’s check f or $15,00 0. Defe

ndant the n offer ed a stat ement to th

e court a cknowle dging

his shortcomings and inability to ea rn money. He sta

ted, “I still owe a gr

eat deal of child support, I do intend to pay it.” He a dded, “I think that the information that [defense c ounsel] put forward was when I did have the

ability, I did try to pay . The periods of time when I didn’t pa y, that’s when I didn’t ha ve the ab ility . That’s n

o excuse.”

Therea fter, the trial judg e order

ed an inc rease in defendant’s bond, resulting in defendant being taken into custody. The matter was then taken under ad visement. When the hearing resumed, defenda nt was sentenced to 18 months’ imprisonment and ordered to pay

restitution in the amount of $88,502. The trial court then advised defendant of his right to withdraw his guilty plea and to reconsideration of the court’s sentenc e. The court also ente red an or der exone rating defenda nt’s bond a

nd directed the pr

oceeds b e applie d to his1-09-0418

1 We note that this amount does not justify with the other amounts appearing in the record. The actual amount of bond posted – a 10% de posit – was $2,500. The amount reflected in the restitution order is $2,700 less than the original amount ordered in the trial judge ’s announcement of sentencing. All of this is so without taking into account the usual a nd customar y f ee dedu cted fr om exonera

ted bonds b

y th e clerk

of the ci rcuit co urt. 9 restitution obligation. The amount owed was thereby reduced to $85,802 1 as reflected in the restitution order. Thereafter, wh

ile in cust ody , defend

ant prep ared an

d filed c ertain p osttrial motions, including a motion to c orrect

the resti tution awa

rd. Def endant c ontended

the amoun

t was in error because it did not adequately account for pay

ments he made between 1996 and 2008. The motion also

challen ged the court’s ability to enter the resti tution awa

rd, as it in

cluded a mounts “outside of child support.” Additionally, def endant filed a motion to reduce his sentence. A combined memorandum in support was offered for the motions, where by defenda

nt articulated numerous reasons why

the restitution order required correction. Def endant also claimed his plea was coerced, when counsel appe ared unprepared for trial. The me morandum further alleged a wide range of examples of defense counsel’s ineffectiveness. I n denying the motions, the trial judge noted that defendant failed to explain why the court lacked jurisdiction to enter the restitution order. Neither defendant nor counsel wa s present during consideration or ruling on the posttr ial motions

. Defend ant now a ppeals. ANA LYSIS1-09-0418

10

Defendant’s first claim of error stems from the a lleged inadequacy

of the court’s admonishments duri

ng the h earing

on his cha

nge of plea. No tably , the tria

l judge f ailed to mention the element of restitution as a consequence of his guilty plea. The State responds that defendant has forfeited this claim by failing to raise it in his postplea motions or, in the alterna tive, tha t no error occur

red. I n order t o preser ve an issu e for ap pellate r eview, it is generally recognized that defendants must object at trial as well as in their w ritten posttrial motions. People v. Nelson , 235 Ill. 2d 386, 436, 922 N.E.2d 1056, 1083 (2009). However , exceptions such as the plain-error doctrine permit otherwise for feited matters to be considered on review. As our supreme court observed in People v . McLaurin : “The plain-error doctrine allows a reviewing court to remedy

a ‘clear or obvious error’ in two circumstances, regardless of the defendant ’ s forfeiture: (1) where the evidence in the case i s so closely balance d that the jury’s g uilty verdict may

have resulted from the error

and not the evidence; or (2) where the er ror is so serious that the defe ndant was denied a substantial right, and thus a fair trial.” People v. McLaurin , 235 Ill. 2d 47 8, 489, 922 N. E.2d 3 44, 35 1 (200 9), ci ting People v. Piatkowski , 225 Ill. 2d 551, 565, 870 N.E.2d 403, 411 (2007) . Because this analysis presupposes the existence of an error, we must first determine whe ther an error of the magnitude contemplated by the doctrine actually

occurred. McLaurin , 235 Ill. 2d at 489, 9 22 N.E .2d at 351-5 2, cit ing Piatkowski , 225 Ill. 2d at 565, 870 N.E.2d at 411. As the question b efore u s concer ns the inte

rpreta tion of a s upreme c ourt rule , our rev iew is de novo

. Robidoux v. Oliphant , 201 Ill. 2d 324, 332, 775 N.E.2d 987, 992 (2002).1-09-0418

11

Supreme C ourt Rule 4 02 provide s, in rele vant par t, as follows: “In hearing s on pleas

of guilt y, * ** there

must b e substan tial compliance with the fo llow ing: (a) Admonitions to Defendant. The court shall not accept a plea of guilty *** without*** addr

essing t he defe ndant per sonally inopen cou

rt, informing him of and determ inin g that h e unde rstan ds th e foll owing:

*** (2) the minimum andmaximum sentence prescribed by law, including , when ap

plicable , the pena

lty to which the defendant may be subjecte d becau se of pri or convic tions or consecu

tiv e sen tenc es[.]” 177 Ill. 2d R. 402(a)(2). Section 15 of the Non-Suppor t Punishmen

t Act (750

IL CS 16/15 (We st 2006))provides : “(a) A person commits the offense of fa ilure to support when he or she: * * * (4) willfull

y f ail s to pay a support obliga tion required under a court or administrative order for support, if the obligation

has rem ained unpai d for a p eriod longe r than one year, or is in arrears in an amount greater than $20,000, and the person ha s the abili

ty to provide t he suppor t.

*** (b) Sentence. A person

convicted of a first offense under subdivision (a)(1)1-09-0418

12

or (a)(2) is guilty

of a Class A misdemeanor. A person convicted of an offense under subdivision (a)(3) or (a)(4) or a second or subs equen t offense under subdivision (a )( 1) or (a )( 2) is gu il ty o f a Cl as s 4 fe lo ny.

*** (d) Fine. Sentences of imprisonment and fines for offenses committed under this Act shall be as provided under Articles 8 and 9 of Chapter V of the Unified Code of Corrections, except that the court shall order restitution of all unpai d suppor t pay ments and may

imposethe follow

ing fine s, alone, or in addition to a sentence of imprisonme

nt under t he follow ing cir cumstanc es: * * * (3) from $10,000 t o $25,000 if the support obligation ha s remained unpaid for a period longer than 8 years, or is i n arrears in an amount grea ter than $20,000[.] (e) Restitution

shallbe ordered in an

amount equal to the total unpaid support obligation

as it existed at the time of sentencing. An y amounts paid by the obligor shallbe allocated

first to curren

t support a

nd then to r

estitution ordere d and then

to fines imposed under this Section.” 750 IL CS 16/15 (West 2006). As a threshold matter, we recognize that the standa rds of statutory construction and interpretation apply e qually to our supreme c ourt rules. Robidoux , 201 Ill. 2d at 332, 775 N.E.2d at 992. In reviewing

these enactments, our primary objective is to give effect to the intent of the drafters. People v. Nunez , 236 I ll. 2d 488, 4 95, 925 N. E.2d 1083, 1087 (201 0). The b est1-09-0418

13

indicator in doing so is the plain and ordinary meaning of the languag e used. Nunez , 236 Ill. 2d at 495, 92 5 N.E.2d a

t 1087. Mor

eover, “ When the st

atutory langua ge is cl ear and

unambig uous, it is unnecessary to re sort to other aids of interpretation.” Nunez , 236 Ill. 2d at 495, 925 N.E.2d at 1087. The broa d reach of Rule 40 2(a)(2 ) demonst rates the trial judg e is oblig ated – al beit prefaced by

a suggestion of “substantial compliance” – to a scertain defendant’s understanding of the minimum

and maximum p enalties

accompa nyi ng a g uilty plea. I n assessi ng a simi lar clai

m of error in People v

. Whit field , our supreme court noted that “every defendant who enters a plea of guilty has a

due process right to be properly and fully admonished.” People v . Whit field , 217 Ill. 2d 177, 188, 840 N.E.2d 658, 665 (2005). I n the case sub judice , the trial judge mentioned only that the offense

was a Class 4 felony, tha t the offense was probationable, that the rang e of custodial sentences was from 1 to 3 y ears, and that a one-y

ear period of mandatory

supervised release would be added to any sentence. The court made no mention of the possibility of an order of restitution or even a fine. Our consideration of what transpired below makes c lear that restitution is an indispensable element of the offense. Subsection (d) provides, in par t: “[T]he court shall order restitution of all un

paid support pay

ments and

may impose the

following

fines, a lone, or i n addition to a sentence of imprisonment.” 750 IL CS 16/15(d) (West 2006). In turn, the potential fines are dependent on several fa ctors depending on the duration and amount of the arr earage. See, e.g. , 750 IL CS 16/15(d)(3) (West 2006). Additionally, the lang uage of subsection (e) of the statute repeats that restitution “shall be ordered.” 750 I LCS 16/15(e) (West 2006).1-09-0418

14

Consequently, it is clear that re stitution is an aspect of the penalty to be imposed upon conviction. Although a restitution order imposed under the statute could be viewed a s nothing more than an extension of

a defen dant’s existing, a

nd possibly

continuin

g, oblig ation, the

statute clearly e stablishes that probation, imprisonment, or fines – alone or in conjunction – are not contemplated as the sole punishment to be imposed. Moreover, it is clear a def endant cannot satisfy the terms of a sent ence un der this st atute wit hout makin

g resti tution for “the tota l unpaid support obligation as it existed at the time of sentencing.” 750 I LCS 16/15(e) (West 2006). Mindful of our conclusion that restitution is an integral component of any sentence imposed un

der the s ubject sta tute, we c onclude t

he trial j udge e

rred in f ailing to admonish defenda nt as to tha

t require ment. I n the pre sent cas e, defe

ndant ent ered a b lind plea . As a re sult, he put himself at the mercy of the court to sentence him. Consequently , it was incumbent upon the cour t to advise

defenda nt fully of the mini

mum and ma

ximum obliga

tions he wo

uld incur to satisfy the judgme

nt. In the case sub judice , it is clea r defen dant was not appri sed of the

full measure of the contemplated penalties. Notably , the insufficiency

of the trial judge’s admonition s was not li

mited to the

issue of r estitution . As noted , the impos ition of a f ine was, equally, a ve

ry rea l possibility under the statute. See 750 I LCS 16/15(e) (West 2006). Yet, the record reveals no mention of a fine as a possible sentencing component. Having determined the trial court erre d, we turn now to the matter of forfeiture. Her e, we discern two interrelated bases upon which defe ndant can overcome forfeiture. F irst, we perceive that the error in the present case is clear and obvious and that “the error is so serious that the1-09-0418

15

defendant was denied a substantial right, and thus a f air trial.” McLaurin , 235 Ill. 2d at 489, 922 N.E.2 d at 35 1, cit ing Piatkowski , 225 I ll. 2d at 56 5, 870 N.E .2d at 411 . Second, we find that, based upon the pronouncement of our supreme court in Whitf ield that “every

defendant who enters a plea of guilty

has a due process right to be properly and fully admonished” ( Whitf ield , 217 Ill. 2d at 188, 840 N.E.2d at 665), hence de fendant was deprived of a substantial right. Moreove r, we fin d defend ant’s fa ilure to ob

ject ca n be excuse d based u

pon the la nguag e of Rule 402, requiring that trial courts not accept a plea of guilty without admonishing the defendant about its c onseque

nces and ascert aining h is or her understa nding. 1 77 Ill . 2d R. 402( a). Quite frankly, the la

nguage of the rule plac es the obligation of admonishing the defendant upon the court. As our supreme court observed in Whitf ield , an opposite conclusion “would place the onus on defendant to ensure his own admonishment in accord with due proce ss.” Whitf ield , 217 Ill. 2 d at 188, 8 40 N.E.2d at 666. Th erefor

e, under the plain -error

doctrine or the simi lar rule recited in Whitf

ield , we can resolve defendant’s cla im of error. As noted, defendant was inadequately admonished as to the full extent of the penalties available to the trial judge in sentencing. Without a full expression of those penalties, any defendant in the same position could reasonably conclude that the possible range of sentenc es would include only probation or one to three yea

rs’ imprisonment and a term of mandatory supervis ed rele ase. I

n effec t, a defe ndant cou ld reasonably

conclude his decis ion to plea

d guilty would subject him to those penalties in lieu of having to pay his back the arrearag e. Such an outcome would be manifestly c ontrary to the leg islative intent, whereby r

estitution is mandated by the plain lang

uage of the statute. 750 I LCS 16/15 (West 2006).1-09-0418

16

The State maintains that defendant was not punished by the restitution order because he was already

legally obligated to pay

that amount by the civil court’s existing order . The State’s position finds support in certain federal cases interpreting a similar federal statute. However, we find it unnecessary

to run the gauntlet of federal dec isional law. The language of the supr

eme court rule and the statute at issue both persuade us that the issue does not refine itself to whether restitution is punishment. Rather, the question to be resolved requires us to determine whether def endant was advised of and understood the consequences of his plea of guilty , an essential component of due process. People v. Seyferlich , 398 I ll. App. 3d

989, 991, 9 24 N.E.2d

1212, 1214

(2010). A s noted, de fendant could cle arly misinterpret the admonishment he received as removing r estitution from the table. Given that the statute, implicitly prohibits such an outcome, the trial court wa s required to admonish defendant of the spectrum of potential consequences of his plea, including restitution. We find support for this conclusion by a rea sonable extension of the existing language of Rule 402(a) (2), which provides the admonishments “includ[e], when applicable, the penalty to which the defendant may be subjected because of prior convictions or conse cutive sentences.” 177 I ll. 2d R. 402(a)(2). While the restitution order entered in the civil court was not a “prior conviction,” it was a prior matter, the substance of which would inevitably impact defendant’s ultimate penalty

. Nevertheless, r

estitution , along

with futur

e complia nce with c

hild suppor

t orders , is manife stly the primary objec

tive of the statute. Furthermore, a defenda nt whose sentence included an order of restitution could not satisfy that sentence without fulfilling that obligation as well. Hence, restitution is a component of any sente nce – whether minimum or maximum – that a defendant1-09-0418

17

would hav e to serv e if conv icted und er this sta tute. The refore , the tria

l court wa s requir

ed to address that obligation before acce pting defendant’s guilty

plea. Because defendant was not prope rly admonished, we va

cate the court’s judgment and allow the defendant to withdraw his plea of guilty and to plead anew. In lig ht of the foregoing conclusion, it is unnecessary to fully address all of the a dditional issues raised by defe ndant. However, we will briefly

address those issues likely to re cur on remand. Notably , defend ant has a sserted

challen ges to the trial c ourt’s c omplianc e with Supr eme Court Rules 604(d) and 605(b)(2), insofar as they relate to his indigency , representation, and the require d content s of a post plea motion. As this is sue ag ain conc erns inte rpreta tion of a s upreme court ru le, our r eview is de novo

. Robidoux , 201 Ill. 2d at 332, 775 N.E.2d at 992. Rule 604( d) provid

es: “(d) Appeal by De fenda

nt fr om a J ud gm en t E nt er ed up on a P le a o f G ui lt y. No appeal f

rom a judg

ment e ntered upon a plea of guilty shall be taken unless the defenda nt, within 30 days of the

date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if only the sentence is being cha l lenged, or, if the plea is being challenged, a motion to withdraw the plea of g uilty and vac ate the judgment. *** The motion shall be in wr iting and shall state the grounds therefor. *** The tr

ial cour t shall the

n determ in e whether the defe

ndant is represented

by c ounsel, and if the defendant is indigent and desires counsel, the trial court shall appoint counsel. *** The motion shall be heard promptly, and if allowed, the trial cou

rt shall mo dify

the sente

nce or va cate th e judgment and permit the1-09-0418

18

defendant to withdraw the plea of guilty and plead anew.” 210 I ll. 2d R. 604(d). Rule 605( b)(2) ma ndates, i n releva nt part: “(b) On Judgment and SentenceEn te re d o n a Pl ea of Gu il ty. In a

ll cases i n whicha judgme

nt is ente red upon aplea of guilty , *** at the time of imposing sentenc e, the tr

ial cour t shall adv

ise the de fendant

substantia

lly a s follows: (1) that t he defe ndant has a right to appea l; (2) that prior

to taking an appeal the defendant must file inthe trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the t rial court reconsider

the sentence or to have thejudgment vacated and for leave to withdraw the plea of guilty , setting forth the ground s for the motion; (3) that if the

motion is al l owed , the sentence will be modified or the ple a of gu

ilty , sentenc e and judg

ment will b e vacated and a tri al date w

ill be set on the cha

rges to whichthe plea of guilty

was made;

*** (5 ) that if the defendant is indigent, a cop y of th e transcript of the proceedings at the

time of the defendant's plea of guilty and sente

nce will b e provide d without c ost to t he defendant and counsel will be appointed to assist the defendant1-09-0418

19 with the preparation of the motions[.]” 210 Ill. 2d R. 605(b). Our review of these sections in juxtaposition to the admonitions given to defendant convince s us that the

trial cou rt faile d to comply

with these

rules. We

are re minded of

the oftcited principles that the rules promulgated by our supreme court have the force of law, are not aspirational or suggestive, and ar e presumed to be adhered to as written. Bright v. Dicke , 166 I ll. 2d 204, 210, 652 N.E.2d 275, 277-78 (1995). The State’s response focuses upon whether def endant was, in fact, indigent and whether he would thereby

be entitled to counsel. Although the cases relied upon by the State stand for the propositions asserted, they do not, individually or collectively, a

ddress the precise issue presented. In the proc eedings below, defendant filed a pro se postplea motion concerning, inter alia , his sentence. Unquestionably , this motion fell within the contemplation of Rule 604(d) nor does the State argue otherwise. Disturbing ly, the recor d reveals that defendant was neither present nor represented by counsel at the hearing on his motion. A cursory r

eview of Rule 604(d) y

ields the unmistakable conclusion that the absence of defenda nt precl uded the t rial judg e from pe

rforming the dutie s imposed by th is rule. T he rule requires that, “The trial court shall then determine whe ther the defendant is represented by counsel, and if the defendant is indigent and desire s counsel, the trial court shall appoint counsel.” 210 Ill. 2d R. 604(d). Although a defendant could conceivably include these issues in a pro se postplea motion, defendant did not elect to do so here. Moreover, without the defe ndant’s presence the trial judge could not asce rtain whether he was indigent or desire d counsel. The State subs tantially

reitera tes the e vidence adduce d during

the plea and sente ncing to support its1-09-0418

20

position that defendant was not indigent. However, that information did not relate to de fendant’s financial status at the time of the postplea hearing. De fendant’s status was not ascertained nor was his desire for counsel probed. Consequently, the trial judge failed to comply with the dictates of Rule 604(d). We find eq

ually unsettling

the cour t’s lack o f adher

ence to t he requi rement o f Rule 605(b)( 2). Althou

gh par ts of the r ule were address ed in the a

dmonishme

nts give n to defe ndant, the full measure of the rule, as it related particula rly to defenda

nt, was simply not addressed. While we cannot predict what will transpire on remand, pursuant to the principle in Bright , we offer this reminder of the importance of comply ing with the rules of our supreme court. Compliance with the rules is, ultimately, benefic ial to all involved as it reduces the likelihood of issues suc h as these arising on appea l. We next consider defendant’s contention that the trial court lacked authority to enter a restitution order for amounts accrued prior to the eff ective date of the offense char ged. A review of the child support statute, specifically subsection (e), persuades that there is an orde r of primacy of payment on the pa

rt of a child support obligor. Subsection (e) provides: “Restitution shall be ordered in an amount equal to the total unpaid support obligation as it existed at the time of sentenc ing. Any

amounts pa

id by the oblig or shall b e alloca ted first to curre nt support

and then t

o restitution ordere d and then to fines im

posed und

er this Se ction.” 7 50 IL

CS 16/15(e ) (West 2006). Clearly, any

restitution order must necessarily be calculated based upon defendant’s unpaid support obligation at that point. As noted, the restitution order entered below did not1-09-0418

21

balance with the other amounts, specifically as to the offset from the exoneration of defendant’s bond. Therefore, it will be necessary to establish the precise value of the amounts paid by defenda nt since the entry

of the sup

port orde r in the c ivil court . Without est ablishing these values, it will be impossible to determine what time period is encompassed by the restitution order – that is, whether the arreara ge actually

predates the effective date of the Non-Support Punishment Act. For example, if the amounts paid over time were sufficient to satisfy the

am ou nt s d ue an d o wi ng si nc e t he en tr y of th e s up po rt or de r, th en an y ex post fa cto concer ns – real or supposed – will be obviated. Consequently, only

when an accounting of defe ndant’s payments is conducted consistent with the ordering provided in subsection (e) (750 I LCS 16/15(e) (West 2006)) will the purported constitutional question become relevant. Notably , though, the provisions of section 15 of the Non-Support Punishment Act apparently c ontemplate amounts due prior to the effective date. Otherwi se, the of

fense w ould not be

functional until en

ough time passed f or a def endant to fall under its terms. Th

is seems a

n illogic al result . Yet, we will leav e it to the t

rial cou rt to fully explore this issue on remand. Alterna tively , defend

ant arg ues that w e must vac ate the r estitution order be cause requirin g pay ment for u

npaid supp ort pred

ating th e effe ctive da

te of the enactme nt violate s ex post factoprinciples. A law violates the ex post fa cto doctrine when it: “(1) ma kes crimi nal and pu

nishable an act in nocent w hen done ; (2) ag grava

tes a crime, or makes it greater than it was w hen committed; (3) increases the punishment for a crime and applies the increase to cr imes committed before the1-09-0418

22

enactment of the law; or (4) alters the rules of e vidence to require less or different evidence than required when the cr ime was committed.” People v . Leonard , 391 Ill. App . 3d 92 6, 931 , 911 N .E.2d 403, 4 08 (20 09), c itin g People v. Morgan , 377 Ill. App. 3d 821, 823, 881 N.E.2d 507, 508-09 (2007). In the case at bar, def endant c ontends the restitu tion orde r violate s ex post fa cto principles because it includes amounts accrued prior to the ef fective date of the Non-Support Punishment Act. As an initi al matter , we are guided by t he funda mental pr inciple that we sho

uld refr ain from deciding a case on a constitutional basis when a nonconstitutional basis is available. People v. Hampton , 225 Ill. 2d 238, 243, 867 N.E.2d 957, 960 (2007). The Non-Support Punishment Act was enacted by

virtue of Public Act 91-0613, effective October 1, 1999, whic h repealed the Non-Support of Spouse and Children Act (750 IL CS 15/1 et seq . (West 1998)). Pub. Act 91- 0613, eff. October 1, 1999 (repealing 750 IL CS 15/1 et seq. (West 1998)). The Non-Support of Spouse an

d Children

Act made

the neg lect of or refus al to pay support or

maintena nce a Cla ss A misdemeanor. 750 IL CS 15/1(a) (West 1998), repealed by Pub. Act 91-0613, eff. October 1, 1999. Clearly, the prior a ct criminalized the same conduct as the Non-Support Punishment Act. Howeve r, the Non-Suppor

t Punishmen

t Act prov

ides a wid

er rang e of pote

ntially culpable conduct, as well as sentences ranging from a Class A misdemeanor to a Class 4 felony, along with provisions for fines and restitution. 750 IL CS 16/15 (West 2006). These changes do serve, under certain circumstances, to make the of fense greater or incr

ease the punishment for a violation. Consequently, there exists the potential for violations of the ex post fa cto principle.1-09-0418

23

Yet, defendant does not challenge the felony conviction or his custodial sente nce on an ex post facto basis. Likewise, he cannot prope rly challeng e the entire restitution order. There was ample evidence in the record to support a finding of culpability under the statute f or both the amount of the arrearage

and the duration of nonpay ment. See 750 IL CS 16/15(a)(4) (West 2006) (“the obligation has remained unpaid for a pe riod longer than one y

ear, or is in arrears in an amount greater than $20,000, and the person ha s the ability to provide the support”). Unquestionably, defe

ndant amassed an arrearag e that remained unpaid for over a y ear and totaling well over $20,000 between October 1, 1999, a nd April 12, 2007, as provided in the indictment. Defendant’s challenge, esse ntially, is that to the extent the restitution order includes amounts a

ccrued prior to the effe ctive da

te of the Non-Support Pay

ment Act, it violate s ex post facto principles. As no te d, th e r es ti tu ti on or de r i s a co ns eq ue nc e o f d ef en da nt ’s gu il ty p le a a nd , i nh er en tl y, part of the punishment imposed. Consequently, it is possible that amount was impacted by nonpayments occur

ring prior to October 1, 1999. However, ba sed upon the record before us, we cannot make a determination whether this indeed occur red. On remand, the trial court is directed to ascertain a full accounting of the c hronology of

the arrearage, a s well as the credits due by virtue of defendant’s pay

ments over time, in crafting a restitution order consistent with the NonSupport Punishment Act and not violative of ex post facto principle s. Defendant additionally

contends that the restitution order entered by the trial court was “defic ient bec ause it fa

il[ed] to set t

he manne r and time

frame f or repa yme nt.” This c laim is meritles s. Restituti on is an int egral part of d efenda nt’s sente nce and repres ents a pot

entially1-09-0418

24

ongoing obligation on his part. Section 15(e) establishes a basic order for the application of amounts paid. 750 IL CS 16/15(e) (West 2006). However, this provision is silent on the manner or time frame for repay

ment. Therefore, a restitution order entere d without these considerations is entire ly proper a

nd compor

ts with the

plain lan guag e of the s tatute. T o conclud e otherw ise would be t

o impose a

n obliga tion not en

visioned by th e legis lature. We decline the invi tation to do so. Defendants must pay restitution and be given credit toward their support obliga tions and arrearage a s provided by the statute. The ir obligation ends when the underly ing order is satisfied temporally, financ ially, and otherwise. For the f orego ing rea sons, we v acate t he judg ment of the

circuit c ourt of Cook County and remand the matter for further proc eedings consistent with this opinion. Reverse d and remanded wi th direc tions. FITZG ERALD SMITH, P.J., with HOWSE, J., concur.1-09-0418

25 REPORTER OF DECISIONS – IL LINOIS A PPELLATE COURT

(Front Sheet to be Attached to Each Case) THE PEOPL

E OF THE

STATE OFIL

LI NOI S, Plaintiff-Appellee,

v. LEE WIG OD, Defend ant-App ellant.

No. 1-09-0418 Appella te Cour t of I llinois First District, FI

FTH Division December 3, 2010 (Give mon

th, day and y

ear ) JUSTIC E TOOMI

N deliv ered the opinio n of the

court: FITZG ERALD SMITH, P.J., with HOWSE, J. concur [s] dissent[s]

Lower Court and T rial Judge(s) i n form indicated in t he margin: Th e H ono rable W illi am G. Lacy, Judge Presiding

.

Indi cate if

att orney repre sent s APPELLANTS or APPELLEE S and i nclu de att orney s of

couns el. Indi cate the word NONE if n ot re prese nted. Attorneys for Plaintiff-Appellee-People of the State of Illinois: Anita Alvarez State’s Attorney County of Co ok Room 309- Richard

J. Daley Center , Chicago, I

L 60602 O f counsel: Alan Spe llberg, Kyle Berger (sen ior law student at the Chicago-Kent College of Law) Attorne ys for Defend ant- Appella

nt: MICHAEL J. PELLETIER State Appellate Defender ALAN D. GOLDBERG Deputy Defender LINDSEY J. ANDERSON Please U se Fol low ing Form: Co mple te TITLE of Case

Docket No. COURT Opini on Filed

JUSTI CES

APPEAL f

rom the Circuit

Ct. of Coo k Co unt y, Chancery Div.

For APPELLA

NTS, John Doe, of Chicago. For APPELLEES, Smith and S mith of Chica go, Joseph Brow

n, (of Counse l) Also add attorney s for third-party appellants or appellees.1-09-0418

26 Assistant Appellate Defend er Office of the State App ellate Defender 203 North LaSalle S treet - 24 th Floor Chicago, I

L 60601 312/814-5472