¶1concurring in part and dissenting in part:
¶2I concur in the decision to affirm the trial court’s handling of the issues relating to the jurors, although I find aspects of the decision very troubling. As the majority has indicated, the standard for reversing conviction by a tainted jury is a reasonable showing that at least some of the jurors have been influenced or prejudiced so that they cannot be fair and impartial. The majority further notes that the challenging party has the burden of showing that the juror has a disqualifying state of mind. Only when a defendant is prejudiced is reversal required.
¶3The problem I have is how a defendant can satisfy that burden with credible evidence when the trial judge fails or refuses to question the jurors about alleged prejudicial influences.
¶4I believe that the trial judge in this case had to walk a fine line between the obligation to ensure that the jury was untainted by fear or intimidation and the need to not create such taint by suggestive questioning. Certainly some, although surely not all, reasonable people would have made the same choice the trial court made here. I, therefore, join in concluding that there was no abuse of discretion on that issue.
¶5I differ with the majority, however, on defendant’s second claim of error. I believe that Supreme Court Rule 605 (210 Ill. 2d R. 605) mandates a remand whenever the trial court fails to give one of the admonitions required by either Rule 605(a) or Rule 605(b).
¶6Rule 605(a), which applies in all cases when a defendant is convicted following a plea of not guilty and Rule 605(b), applicable in all cases of conviction entered on a plea of guilty, both state that at the time of imposing sentence “the trial court shall [also, in Rule 605(a)] advise the defendant [substantially, in Rule 605(b)] as follows.” (Emphasis added.)
¶7Cases interpreting Rule 605(b) have held that a defendant is entitled to a remand for proper admonishment when the trial court either fails to deliver the admonitions (People v. Jamison, 181 Ill. 2d 24, 29-30, 690 N.E.2d 995, 998 (1998)) or gives them incorrectly (People v. Doguet, 307 Ill. App. 3d 1, 6-7, 716 N.E.2d 818, 822 (1999)). Moreover, the cases have held that remand is not discretionary; strict compliance with the rule is required. Jamison, 181 Ill. 2d at 31, 690 N.E.2d at 998. Applying the principle that when the language of a supreme court rule is plain and unambiguous, courts will not read in exceptions, limitations, or other conditions, the court in Jamison found that this language required strict compliance with the rule and a remand if the rule was not properly followed by the trial court. Jamison, 181 Ill. 2d at 29, 690 N.E.2d at 998.
¶8There is no reason to think that identical language in Rule 605(a) would not also be interpreted as requiring strict compliance with the admonitions it sets out.
¶9Notwithstanding the unambiguous language of the rule, the majority argues that, for two reasons, we should be unconcerned with the trial court’s failure to properly admonish the defendant: first, the defendant did not allege a specific sentencing error in this appeal, and second, that strict compliance with Rule 605(a) is unnecessary, because there is no rule that requires strict compliance from the defendant, like there is with Rule 604(d) with respect to Rule 605(b). These reasons, the majority argues, preclude the need for strict compliance with the rule. I do not believe either reason has intrinsic merit.
¶10Although the majority contends that strict compliance is not required here because the defendant has not alleged any specific sentencing errors, it cites no authority for this proposition. In fact, there is none. No case holds that a failure to allege a specific sentencing error obviates the need for strict compliance with the rule. Indeed, in Mazar, the defendant did not identify a specific sentencing error on appeal, other than the failure of the trial court to properly admonish. Despite this, Mazar was remanded. See generally Mazar, 333 Ill. App. 3d 244, 775 N.E.2d 135. The majority apparently believes otherwise, however, relying on the first sentence in Mazar, which states that the defendant “appeals from the circuit court’s sentencing order on his convictions.” Mazar, 333 Ill. App. 3d at 245, 775 N.E.2d at 137. It is the only sentence in the opinion that hints at the existence of alleged sentencing errors in that case. It could be, however, that the improper admonishment was the only sentencing error alleged. That would not be surprising, since any sentencing error would not properly be before the appellate court, due to the trial court’s failure to properly admonish, and the defendant’s consequent failure to preserve sentencing errors for review.
¶11Here, too, it would be inappropriate for the defendant to allege sentencing errors at this stage in the case. The defendant’s only recourse at this point is to seek remandment for proper admonishment, so that error may be preserved. The majority assumes that there are no independent grounds for challenging the sentence. There is no reason to make that assumption. Furthermore, it is not clear that the defendant is obliged to allege such error at this point in the proceedings. Simply put, the clear language of the rule requires strict compliance and it is inappropriate for this court to attempt to craft an exception to the rule not supported by its text. Jamison, 181 Ill. 2d at 29, 690 N.E.2d at 998.
¶12The majority asserts that “[t]he failure … to properly admonish a defendant …, … alone, does not automatically establish grounds for reversing the judgment or vacating a plea” (344 Ill. App. 3d at 338, citing People v. Davis, 145 Ill. 2d 240, 250, 582 N.E.2d 714, 719 (1991); People v. Cohn, 91 Ill. App. 3d 209, 213, 414 N.E.2d 543, 547 (1980)), and that whether reversal and remand are required depends on whether real justice has been denied or whether the defendant has been prejudiced by the inadequate admonishment. Davis, 145 Ill. 2d at 250, 582 N.E.2d at 719; People v. Dudley, 58 Ill. 2d 57, 60-61, 316 N.E.2d 773, 774-75 (1974); People v. Hayes, 336 Ill. App. 3d 145, 151, 782 N.E.2d 787, 792 (2002); People v. Blankley, 319 Ill. App. 3d 996, 1007, 777 N.E.2d 16, 25 (2001); People v. Wilson, 295 Ill. App. 3d 228, 235, 692 N.E.2d 422, 427 (1998).
¶13I do not disagree with the existence of the principle, but I do not believe that it is applicable to cases involving Rule 605(a). An examination of the cases cited above reveals that they uniformly deal with failure of the trial court to comply with Supreme Court Rule 402, which requires that the trial court admonish a defendant who intends to plead guilty, at his sentencing hearing and in open court, of various aspects of the plea agreement. 177 Ill. 2d R. 402(a). The purpose of the rule is to ensure that a defendant understands his plea, the rights he has waived by pleading guilty, and the consequences of his actions. People v. Wilson, 295 Ill. App. 3d at 234, 692 N.E.2d at 427. Furthermore, substantial compliance (as opposed to strict compliance) with the rule is all that is required. People v. Burt, 168 Ill. 2d 49, 64, 658 N.E.2d 375, 382 (1995).
¶14The question of whether the trial court has complied with the requirements of Rule 402 or with Rule 605 involves two distinct inquiries. With respect to Rule 402, a failure to comply with the admonishment requirement may render the plea agreement involuntary and the conviction unconstitutional. Nonetheless, our courts have held that the conviction need not necessarily be overturned (People v. Dudley, 58 Ill. 2d at 60, 316 N.E.2d at 774) and have traditionally looked beyond the question of whether the rule was complied with, to determine whether the principle that the rule is intended to protect has been honored. Therefore, a reviewing court will not overturn a conviction based on a guilty plea merely on the basis of improper admonition, but will examine, from the facts of the case, whether the plea was involuntary or otherwise unjust. The supreme court in Dudley states the issue quite clearly: “ ‘It is not the policy of this court to reverse a judgment of conviction merely because error was committed unless it appears that real justice has been denied.’ ” (Emphasis added.) Dudley, 58 Ill. 2d at 61, 316 N.E.2d at 775, quoting People v. Morehead, 45 Ill. 2d 326, 332, 259 N.E.2d 8, 11 (1970).
¶15In this case, we are not asked to overturn a conviction. Rather, we are asked to remand the case for proper postconviction admonishments, so that the defendant may have the opportunity to appeal his sentence, if he so chooses. The courts of this state have consistently and unanimously held that strict compliance with Rule 605 is required. I see no reason to depart from that rule here.
¶16For an illustration of my point that Rules 605 and 402 operate differently, see People v. Hayes, in which the court dealt with a challenge to the trial court’s failure to properly admonish under both Rule 605(b) and Rule 402(a). The court engages in a long analysis of whether the trial court’s failure to admonish pursuant to Rule 402(a) prejudiced the defendant or denied him real justice. Hayes, 336 Ill. App. 3d at 149-153, 782 N.E.2d at 791-93. The court does not engage in a similar analysis with respect to the failure to admonish under Rule 605(b). Rather, the court states that “[sjtrict compliance with Rule 605(b) is required” (Hayes, 336 Ill. App. 3d at 147, 782 N.E.2d at 789) and that the appropriate remedy for a failure to properly admonish is remand to the circuit court for compliance with the rule (Hayes, 336 Ill. App. 3d at 147-48, 782 N.E.2d at 789-90). There was absolutely no discussion of whether the defendant was prejudiced or denied real justice.
¶17Finally, the distinction between Rule 605 and Rule 402 is supported by the language of the rules. As noted earlier, Rule 605 demands that “in all cases” the trial court “shall” give the relevant admonishments. 210 Ill. 2d Rs. 605(a)(1), (a)(2), (b). Rule 402, on the other hand, only requires that “there must be substantial compliance with the following [admonition requirements].” 177 Ill. 2d R. 402(a). The text of the rules themselves does not support the connection the majority attempts to draw.
¶18The majority next argues that strict compliance with Rule 605(a) is not required, because there is no corollary rule that imposed strict compliance with obligations on the defendant. As a demonstration of the argument, the majority points to the relationship between Rule 604(a), which imposes obligations requiring strict compliance on the defendant in order to preserve errors in sentencing on a plea of guilty, and Rule 605(b), which requires the trial court to admonish the defendant of those obligations. As the majority notes, “when a trial court fails to issue the admonishments required under Rule 605(b), a defendant’s appeal rights under Rule 604(d) are compromised.” 344 Ill. App. 3d at 340.
¶19The majority is correct, insofar as there is no supreme court rule that acts as a corollary to Rule 605(a). However, section 5 — 8—1 of the Unified Code of Corrections (730 ILCS 5/5 — 8—1(c) (West 2002)) stands in the same relationship to Rule 605(a) as Rule 604(a) does to Rule 605(b). The mandatory language'of section 5 — 8—1(c) requires strict compliance with its provisions to preserve error for appeal. People v. Reed, 177 Ill. 2d 389, 392, 686 N.E.2d 584, 585 (1997). In this sense, the section is analogous to Rule 604(d). Compare People v. Lewis, 158 Ill. 2d 386, 390, 634 N.E.2d 717, 719 (1994) (holding that pre-amended section 5 — 8—1(c), with no mandatory language, is not analogous to Rule 604(d)), with Reed, 177 Ill. 2d at 392, 686 N.E.2d at 585 (holding that amendment adding mandatory language to section 5 — 8—1(c) abrogates the holding in Lewis). Therefore, since the defendant is required to strictly comply with section 5 — 8—1(c), fundamental fairness requires the trial court to strictly comply with Rule 605(a). Cf. Little, 318 Ill. App. 3d 75, 79, 743 N.E.2d 594, 597-98 (2001) (noting that because Rule 604(d) requires strict compliance from the defendant, fundamental fairness requires that the trial court strictly comply with the rule’s corollary, Rule 605(b)).
¶20For these reasons, I believe the trial court’s failure to admonish the defendant of the requirement for filing a motion to reconsider sentence in order to perfect his appeal mandates a remand for proper Rule 605(a) admonitions. The rule requires strict compliance, and the majority has not stated any persuasive reason to depart from that general rule. I, therefore, dissent from the decision of the majority to the contrary.