No. 3--01--0804

	(Consolidated with No. 3--01--0805)

_________________________________________________________________

							IN THE

							APPELLATE COURT OF ILLINOIS

							THIRD DISTRICT

							A.D., 2002 

THE PEOPLE OF THE STATE 			)	Appeal from the Circuit Court

OF ILLINOIS,					)	of the 21st Judicial Circuit

							)	Kankakee County, Illinois

	Plaintiff-Appellee,			)	

							)	No. 97--CF--621 and

	)	No. 98--CF--374

	v.						)			

							)	

BENNIE STROUD,	)	Honorable                      

	 ) 	Kathy Bradshaw-Elliott

	Defendant-Appellant.		)	Judge, Presiding

_________________________________________________________________

	PRESIDING JUSTICE LYTTON delivered the opinion of the court:	

_________________________________________________________________

	The defendant, Bennie Stroud, pled guilty to possession of a

stolen vehicle (625 ILCS 5/4--103(a)(1) (West 1996)) (No. 97--CF--

621) via closed circuit television and was sentenced to a

probationary term of two years.  While on probation, the defendant

was found guilty of a subsequent offense (No. 98--CF--374) and his

probation was revoked.  The trial court sentenced the defendant to

seven years in prison on each conviction.  The defendant's direct

appeal was dismissed for lack of jurisdiction (People v. Stroud, No. 3--98--0981 (consolidated with No. 3--98--0982) (2000)

(unpublished order under Supreme Court Rule 23)).  

	The defendant filed a postconviction petition which was

dismissed.  The defendant now appeals from that dismissal, arguing that his plea of guilty in case No. 97--CF--621 should be vacated

because it was entered over closed circuit television.  He also

contends that his sentence in case No. 98--CF--374 should be

vacated and remanded for resentencing.  We vacate the conviction in

case No. 97--CF--621, vacate the sentence in case No. 98--CF--374

and remand both causes for further proceedings.     

	FACTS

	On March 23, 1998, the defendant appeared via closed circuit

television and pled guilty to the charge of possession of a stolen

motor vehicle (No. 97--CF--621).  Pursuant to agreement, he was

sentenced to two years' probation.  The trial court admonished the

defendant of his appellate rights.  He did not appeal his

conviction or sentence.

	On July 1, 1998, the State filed a petition to revoke

probation, alleging that the defendant violated his probation by

committing another offense.  Subsequently, the defendant was found

guilty of unlawful possession of a controlled substance (720 ILCS

570/402 (West 1998)) (No. 98--CF--374) and his probation in case

No. 97--CF--621 was revoked.  The trial court sentenced the

defendant to seven years' imprisonment for each offense.  Based on

his prior felony conviction in case No. 97--CF--621, the defendant

was not eligible for probation in case No. 98--CF--374.

	On direct appeal, the defendant claimed that his guilty plea

in case No. 97--CF--621 should be vacated since he was not

physically present in the courtroom when the plea was entered.  We

dismissed the appeal for lack of subject matter jurisdiction because the defendant did not file a timely motion to withdraw the

plea.  Stroud, No. 3--98--0981 (consolidated with No. 3--98--0982). 

	On November 22, 2000, the defendant filed a timely

postconviction petition, again arguing that his guilty plea should

be vacated because the trial court conducted the proceeding via

closed circuit television rather than in person.  He also asked

that his sentence in case No. 98--CF--374 be vacated and remanded

for resentencing.  The State moved to dismiss the petition because

the defendant failed to file a timely motion to withdraw his plea

pursuant to Supreme Court Rule 604(d).  188 Ill. 2d R. 604(d).  The

trial court agreed and the petition was dismissed. 

	ANALYSIS

	I.

	  Closed Circuit Television Guilty Plea (No. 97-CF-621)

	A. Waiver

	On appeal, the defendant argues that the trial court erred in

dismissing his postconviction petition because he failed to file a

timely postplea motion.  The State claims that the defendant waived

review by failing to file a motion to withdraw his guilty plea

pursuant to Supreme Court Rule 604(d).  

	A.  Waiver

	The State's contention that the defendant cannot challenge his

guilty plea on collateral review is misplaced.  Rule 604(d)

provides that no appeal from a judgment entered upon a guilty plea

shall be taken unless the defendant files a motion to withdraw his

plea within 30 days of that judgment.  188 Ill. 2d R. 604(d).  A

petition filed under the Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq. (West 2000)) is not a direct appeal; it is a collateral attack on a prior judgment.  This court has consistently

held that the direct appeal requirements of Rule 604(d) do not

apply to postconviction proceedings.  People v. Stein, 255 Ill. App. 3d 847, 625 N.E.2d 1151 (1993); People v. Brumas, 142 Ill. App. 3d 178, 491 N.E.2d 773 (1986); see also People v. Miranda, No. 1--99--3613 (April 29, 2002).  Since Rule 604(d) has no

application, the defendant's failure to move to withdraw his plea

does not result in a waiver of his constitutional claim.   

	Nevertheless, the State relies on People v. Speed, 318 Ill. App. 3d 910, 743 N.E.2d 1084 (2001) in support of its argument that

the defendant is foreclosed from attacking the plea because he

failed to address the issue in a timely direct appeal.  In Speed, the defendant attempted to vacate his guilty plea on direct appeal.  We held that the appellate court lacked jurisdiction to consider

the issue because Speed did not follow the requirements of Rule

604(d).  People v. Speed, 318 Ill. App. 3d 910, 743 N.E.2d 1084.

	Here, the defendant filed a timely postconviction petition,

(See 725 ILCS 5/122–1(c) (West 2000); People v. Bates, 323 Ill. App. 3d 77, 751 N.E.2d 180 (2001)); in it, he claimed that his

televised guilty plea substantially violated his constitutional

rights.  As a result, the postconviction petition provides this

court with jurisdiction to review the defendant’s claim.  AlthoughWe

therefore conclude that, although the defendant was barred from challenging his plea on direct appeal, nothing prevents him from collaterally attacking his plea

on constitutional grounds.   

	B.  Guilty Plea Proceeding (No. 97--CF--621)

	The remaining question is whether the acceptance of the guilty

plea over closed circuit television violated the defendant's

constitutional rights.  

	Rule 402 states that "[t]he court shall not accept a plea of

guilty *** without first, by addressing the defendant personally in

open court, informing him of and determining that he understands

[specific admonitions]."  177 Ill. 2d R. 402.  The entry of a

guilty plea is a critical stage of the proceedings against a

defendant.  Guttendorf, 309 Ill. App. 3d 1044, 723 N.E.2d 838.  This court has recently confirmed that the right to be physically

present when entering a guilty plea is a substantial constitutional

right.  Guttendorf, 309 Ill. App. 3d 1044, 723 N.E.2d 838.  Consequently, a guilty plea hearing on closed circuit television

denies the defendant a substantial right and deprives him of

fundamental fairness.  Guttendorf, 309 Ill. App. 3d 1044, 723 N.E.2d 838. 

	Here, the defendant pled guilty over closed circuit television

and was denied the substantial right to be present at a critical

stage of his conviction proceeding.  We therefore vacate the defendant's conviction in case No. 97--CF--621 and remand the cause

for further proceedings.  See Guttendorf, 309 Ill. App. 3d 1044, 723 N.E.2d 838. 

	II. 

	Sentencing (No. 98--CF--374)

	The defendant also appeals his sentence in case No. 98--CF--

374.  He claims that because his conviction in case No. 97--CF--621

should be vacated, his sentence in case No. 98--CF--374 should be

vacated and remanded for resentencing to allow the trial court to

consider a term of probation.  We agree.  At sentencing in case No.

98--CF--374, the defendant was found ineligible for probation due

to his prior felony conviction in case No. 97--CF--621.  Since the

conviction in case No. 97--CF--621 no longer exists, we vacate the

sentence in case No. 98--CF--374 and remand the cause for

resentencing.  

	CONCLUSION

	For the reasons stated, we vacate the conviction in case No.

97--CF--621 and remand for further proceedings.  The sentence in

case No. 98--CF--374 is vacated and the cause is remanded for

resentencing.  

	No. 97--CF--621, Judgment vacated; cause remanded.

	No. 98--CF--374, Sentence vacated; cause remanded.

	McDADE and SLATER, JJjj., JJJ., concur., concur.