No. 2--99--0736

________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

________________________________________________________________

THE PEOPLE OF THE STATE	)	Appeal from the Circuit Court

OF ILLINOIS,	)	of Lake County.

	)

	Plaintiff-Appellee,	)

	)

v.	)	No. 96--CF--1915

	)

PRIEST D. LITTLE,	)	Honorable

	)	Victoria A. Rossetti,

	Defendant-Appellant.	)	Judge, Presiding.

________________________________________________________________

	JUSTICE RAPP delivered the opinion of the court:

	A jury found defendant, Priest D. Little, guilty of aggravated

unlawful restraint (720 ILCS 5/10--3.1(a) (West 1998)), unlawful

use of weapons (720 ILCS 5/24--1(a)(4) (West 1998)), armed robbery

(720 ILCS 5/18--2(a) (West 1998)), armed violence (720 ILCS 5/33A--

2 (West 1998)), and home invasion (720 ILCS 5/12--11(a)(1) (West

1998)).  The trial court entered judgment on only the armed

violence conviction and sentenced defendant to 22 years'

imprisonment.  On appeal, this court concluded that defendant's

penalty for armed violence violated the proportionate penalties

clause of the Illinois Constitution (Ill. Const. 1970, art. I,

§11).  We vacated defendant's conviction of armed violence and

remanded the cause for resentencing on the home invasion

conviction.  People v. Little, No. 2--97--0082 (1999) (unpublished order under Supreme Court Rule 23).  On remand, defendant was sentenced to 16 years' imprisonment, and he appeals again, arguing

that the sentence is excessive.

	Defendant concedes that the trial judge admonished him in

accordance with Supreme Court Rule 605(a) (145 Ill. 2d R. 605(a)). 

However, he claims that his procedural due process rights were

violated when the trial judge failed to inform him of the need to

file a postsentencing motion to preserve his sentencing challenge. 

Defendant also argues that trial counsel rendered ineffective

assistance by failing to file a written postsentencing motion and

by failing to promptly inform the trial court of the two

codefendants' sentences.  We affirm defendant's home invasion

conviction and sentence.

	At the resentencing hearing, the trial court determined that,

although defendant's attitude and behavior had improved since he

was first sentenced, the seriousness of the offense required a 16-

year prison term.  Defense counsel argued that the sentence was

excessive because a codefendant, Eiko Jones, had been sentenced to

only a 13-year term.  Rather than responding to counsel's

additional argument, the trial court admonished defendant of his

appeal rights under Rule 605(a).  Defendant failed to file a

postsentencing motion challenging his sentence, and he appeals

again.

	Defendant initially contends that the trial court was required

on remand to admonish him that he would waive his right to

challenge his sentence as excessive if he failed to file a written

postsentencing motion.  Section 5--8--1(c) of the Unified Code of Corrections (Code) defines the procedure for challenging a sentence 

before appealing and provides in relevant part:

		"(c) A motion to reduce a sentence may be made, or the

court may reduce a sentence without motion, within 30 days

after the sentence is imposed.  A defendant's challenge to the correctness of a sentence or to any aspect of the sentencing

hearing shall be made by a written motion filed within 30 days

following the imposition of sentence.  However, the court may not increase a sentence once it is imposed."  (Emphasis

added.)  730 ILCS 5/5--8--1(c) (West 1998).

	The purpose of section 5--8--1(c) is to require a defendant to

raise in the trial court all sentencing issues to preserve those

issues for appellate review.  People v. Reed, 177 Ill. 2d 389, 393 (1997).  Therefore, a defendant waives his claim that his sentence

is excessive when he fails to raise the issue in a written

postsentencing motion.  Reed, 177 Ill. 2d at 395; People v. Bailey, 311 Ill. App. 3d 265, 270 (2000).

	Defendant argues that the trial court's failure to advise him

of the requirements of section 5--8--1(c) entitles him to a remand

for the opportunity to file a written motion challenging the

sentence.  After a defendant is found guilty, Rule 605(a) requires

the trial court to advise him of his appeal rights.  145 Ill. 2d R.

605(a).  Rule 605(a) provides:

		"(a) On Judgment and Sentence After Plea of Not Guilty. 

In all cases in which the defendant is found guilty and

sentenced to imprisonment, probation or conditional discharge,

periodic imprisonment, or to pay a fine, or in which a sentence of probation or conditional discharge has been

revoked or the conditions attached to such a sentence have

been modified, except in cases in which the judgment and

sentence are entered on a plea of guilty, the trial court

shall, at the time of imposing sentence or modifying the

conditions of the sentence, advise the defendant of his right

to appeal, of his right to request the clerk to prepare and

file a notice of appeal, and of his right, if indigent, to be

furnished, without cost to him, with a transcript of the

proceedings at his trial or hearing, and, in cases in which

the defendant has been convicted of a felony or a Class A

misdemeanor or convicted of a lesser offense and sentenced to

imprisonment, periodic imprisonment, or to probation or

conditional discharge conditioned upon periodic imprisonment,

or in which a sentence of probation or conditional discharge

has been revoked or the conditions attached to such a sentence

have been modified and a sentence or condition of imprisonment

or periodic imprisonment imposed, of his right to have counsel

appointed on appeal.  The trial court shall also advise him

that his right to appeal will be preserved only if a notice of

appeal is filed in the trial court within 30 days from the

date of the sentence."  145 Ill. 2d R. 605(a).

	Defendant acknowledges that Rule 605(a) does not direct trial

judges to advise defendants of the requirements of section 5--8--

1(c).  Nevertheless, defendant relies on recent cases involving

Rule 605(b) (145 Ill. 2d R. 605(b)) in arguing that fundamental

fairness requires a remand here.  Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)) defines the procedure a defendant must follow

when appealing from a judgment entered on a guilty plea, and Rule

605(b) provides the admonitions the trial judge must give a

defendant when imposing a sentence on the guilty plea.  Rule 605(b)

complements Rule 604(d) and serves as a corollary to the

requirements of Rule 604(d).  People v. Jamison, 181 Ill. 2d 24, 27 (1998).

	Strict compliance with Rule 604(d) is a condition precedent to

a defendant's appeal, and a defendant waives issues regarding his

guilty plea if he does not follow the rule.  Jamison, 181 Ill. 2d at 28.  Therefore, fundamental fairness entitles a defendant to a

remand for the proper admonitions under Rule 605(b) if the trial

court (1) fails to deliver the admonitions (Jamison, 181 Ill. 2d at 29-30) or (2) delivers inaccurate admonitions (People v. Winston, 316 Ill. App. 3d 618, 620 (2000); People v. Doguet, 307 Ill. App. 3d 1, 6-7 (1999)).

	After a defendant pleads guilty, Rule 605(b) requires the

trial court to admonish him of the need to file a written motion

before appealing.  In some cases, the defendant is incorrectly told

that he will preserve his appeal rights by filing only a motion to

reconsider the sentence, when, in fact, Rule 604(d) requires him to

move both to reconsider the sentence and to withdraw the negotiated

guilty plea and vacate the judgment.  This court routinely grants

a remand for proper Rule 605(b) admonitions in those instances

where the defendant has been misled about which type of motion Rule

604(d) requires.  See, e.g., Doguet, 307 Ill. App. 3d at 6-7.

	Defendant asks us to create a similar "admonition exception"

to the Reed waiver rule for defendants who are not admonished of the written motion requirement of section 5--8--1(c) of the Code. 

We conclude that such an exception is unnecessary.  In this case,

defendant was neither told that a written postsentencing motion was

unnecessary nor misled about which type of motion was required. 

The trial court fully complied with Rule 605(a) and did not mention

the motion requirement only because it is not included in the rule.

	When the language of a supreme court rule is plain and

unambiguous, courts should not read into the rule exceptions,

limitations, or other conditions.  Jamison, 181 Ill. 2d at 29.  Because the plain language of Rule 605(a) does not require a trial

court to advise the defendant of the written motion requirement of

section 5--8--1(c), we will not read into the rule that additional

condition.

	A brief examination of another waiver rule supports our

conclusion that defendant's due process claim is without merit. 

Ordinarily, a defendant waives an issue for appellate review if he

fails to both object at trial and raise the issue again in a

posttrial motion.  People v. Enoch, 122 Ill. 2d 176, 186 (1988).  If we were to adopt defendant's proposed admonition exception to

the Reed waiver rule, other defendants might demand that we excuse their waiver of claims of trial error.  However, nothing suggests

that procedural due process requires a trial court to advise a

defendant of the Enoch waiver rule.  Furthermore, a defendant who waives a claim of trial or sentencing error may still request

appellate review of the issue by claiming plain error.

	Defendant next claims that his counsel rendered ineffective assistance by failing to (1) file a written postsentencing motion

and (2) promptly inform the trial court of his codefendants'

sentences.  We conclude that defendant's argument is without merit. 

Under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), defense counsel is ineffective only if (1)

counsel's performance fell below an objective standard of

reasonableness; and (2) counsel's error prejudiced the defendant. 

A court need not decide whether counsel's performance was deficient

before analyzing whether the defendant was prejudiced.  People v. Cortes, 181 Ill. 2d 249, 295-96 (1998).

	Defendant was not prejudiced by counsel's failure to file a

postsentencing motion because the trial court did not abuse its

discretion at the resentencing hearing.  Correctly noting that

defendant's home invasion conviction rendered him eligible for 6 to

30 years' imprisonment (see 730 ILCS 5/5--8--1(a)(3) (West 1998)),

the court reviewed the relevant aggravating and mitigating facts

before imposing a 16-year term.  Defendant's new prison term is

much shorter than his previous 22-year sentence.

	We also conclude that defendant was not prejudiced by defense

counsel's delay in informing the trial court of Jones' 13-year

sentence.  When arguing for a particular sentence, a party may

advise the court of the disposition of a codefendant's case (730

ILCS 5/5--4--1(b) (West 1998)), and similarly situated codefendants

should not be given arbitrarily or unreasonably disparate sentences

(People v. Kliner, 185 Ill. 2d 81, 176 (1998)).

	Here, defense counsel did not advise the court of Jones'

sentence until after defendant was sentenced.  After hearing the

additional argument, the court could have modified defendant's

sentence (see 730 ILCS 5/5--8--1(c) (West 1998)), but declined to

do so.  If counsel had made the argument earlier, the result likely

would not have been different.  We conclude that defendant was not

prejudiced by counsel's conduct because the sentences imposed upon 

defendant and Jones are not unreasonably disparate.

	Finally, defendant argues that he was prejudiced by counsel's

failure to inform the court of the sentence of Hope Johnson, the

other codefendant.  It is impossible for us to determine whether

defendant was prejudiced by the court's failure to consider

Johnson's sentence because defendant has failed to tell us what

that sentence is.  As appellant, defendant has the burden to

present a sufficiently complete record to support a claim of error,

and any doubts that arise from the incompleteness of the record

will be resolved against defendant.  See Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984).  Therefore, we determine that defendant

was not prejudiced by counsel's failure to inform the trial court

of Johnson's sentence.

	In this case, the trial court admonished defendant according

to Rule 605(a), and defendant waived his sentencing challenge by

failing to file a postsentencing motion as required by section 5--

8--1(c) of the Code.  We hold that (1) Rule 605(a) does not require

a trial court to advise a defendant of the need to file a

postsentencing motion to preserve a sentencing challenge under

section 5--8--1(c), and (2) a defendant's procedural due process rights are not violated when he is not so advised.  Defendant does

not allege that his sentence amounts to plain error, and we

conclude that his ineffective assistance of counsel claim is

without merit.  Therefore, we affirm his conviction of and sentence

for home invasion.  See Reed, 177 Ill. 2d at 395.

	For these reasons, the judgment of the circuit court of Lake

County is affirmed.

	Affirmed.

	COLWELL, J., concurs.

	JUSTICE O'MALLEY, specially concurring:

	I concur in the holding, but disagree that this is an

appropriate case to reach the question of whether to create an

"admonition exception" to the Reed waiver rule.  

	The defendant claims that he received ineffective assistance

of counsel on the basis that, inter alia, his counsel failed to file a written postsentencing motion that would have preserved

defendant's right to appeal his sentence.  We are required to

address the ineffective assistance of counsel claim, which in turn

requires us to address the appropriateness of defendant's sentence. 

I agree with the majority that the record unequivocally

demonstrates that the trial judge appropriately considered the

aggravating and mitigating factors.  In my view, the sentence is

clearly not excessive and thus not an abuse of discretion.  In so

holding, we reach the merits of defendant's sentence claim, thus

mooting the waiver issue.  See Bailey, 311 Ill. App. 3d at 270 (holding that defendant waived any objection to his sentence by

failing to file a postsentencing motion, and that there was no other basis on which to review the sentence such as an ineffective

assistance of counsel claim).  Justice Inglis specially concurred

in Bailey, suggesting that the supreme court review Rule 605(a) because it is misleading and unjust.  Bailey, 311 Ill. App. 3d at 2710-721 (Inglis, J., specially concurring specially).       	

	I also respectfully suggest supreme court review of Rule

605(a) for the additional reason that defendants will simply, and

rather compellingly, claim ineffective assistance of counsel when

counsel fails to file a postsentencing motion but a notice of

appeal regarding the sentence is filed.  We will routinely have to

consider the merits of the defendant's underlying sentence

objection as we do in this case, thus thwarting the purpose of

section 5--8--1(c) of the Unified Code of Corrections that 

objections to sentences be addressed first to the trial court.