People v. Ratliff

2024 IL 129356

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 129356)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

EARL E. RATLIFF, Appellant.

Opinion filed November 14, 2024.

CHIEF JUSTICE THEIS delivered the judgment of the court, with opinion.

Justices Holder White and Rochford concurred in the judgment and opinion.

Justice Cunningham specially concurred, with opinion.

Justice O’Brien specially concurred, with opinion, joined by Justice

Cunningham.

Justice Overstreet concurred in part and dissented in part, with opinion.

Justice Neville dissented, with opinion.

OPINION

¶1 Defendant Earl Ratliff entered an open plea to one count of robbery, and the

trial court sentenced him to 15 years’ imprisonment. On appeal, the defendant

argued the trial court committed reversible error when it failed to comply with

Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) before accepting his waiver

of counsel. The appellate court rejected that argument and affirmed the defendant’s

conviction and sentence. 2022 IL App (3d) 210194-U. For the reasons that follow,

we vacate the judgment of the appellate court and affirm the judgment of the circuit

court.

¶2 BACKGROUND

¶3 The defendant was indicted for robbery after he purportedly took by force a

woman’s purse containing a necklace, a watch, a cellular telephone, two wallets,

and some currency. On April 24, 2019, he was arraigned. The trial court

admonished him of the charge, the sentencing range, and his right to counsel. The

defendant indicated that he wanted an attorney, and the trial court appointed a

public defender. The trial court set a trial date and scheduled a hearing on any

pretrial motions.

¶4 At that hearing on July 11, 2019, the defendant attempted to speak for himself,

but the trial court instructed him to communicate through his attorney. Appointed

counsel informed the court that the defendant wished to proceed pro se, and the

defendant confirmed that intent. The court then advised him of the difficulties of

representing himself:

“Okay. Now, you have to understand something. Representing you on the

particular matter in this [case] is not simply a matter of stand up, tell your side

of the story. There’s procedures and protocol that have to be followed. That

gentleman right there is here to convict you. He’s not here to help you. I’m not

here to help you either. I just make sure you get a fair trial. I don’t do research

for you. He doesn’t do research for you. We give you no special consideration

in the jail or outside the jail. You’re going to [be] held responsible for any type

of discovery cutoffs, rulings, filings of motions. They are going to be you[r]

responsibility.

-2-

*** Also, when you have an attorney representing you, they have freedom

of access and movement and research availability to, you know, any type of

matters that may need to be involved in. Also, you have the absolute right to

represent yourself. I don’t care one way or the other. If you discharge your

lawyer, any claim about my lawyer didn’t do something claim [sic] in the future

is gone because you cannot claim ineffective [assistance] because you were

representing yourself. So any mistakes or boo-boos that might happen in the

future, they’re all yours, no one else’s. You can’t blame anybody else.”

¶5 When the trial court asked whether the defendant voluntarily chose to represent

himself, the defendant said that his attorney had “threatened” him with a 22-year

sentence and was unwilling to hear his side of the story or to defend him. Appointed

counsel replied that he had a duty to convey offers from the State. The court granted

the defendant’s request to proceed pro se without admonishing him regarding the

charge, the sentencing range, and his right to counsel, as required by Rule 401(a). 1

¶6 The defendant subsequently filed several motions, which the trial court denied.

On the day of trial, the defendant told the court that he wished to enter an open

guilty plea. Before accepting the plea, the trial court admonished the defendant of

the charge, the sentencing range, the term of mandatory supervised release, and

collateral consequences, as required by Rule 402(a). See Ill. S. Ct. R. 402(a) (eff.

July 1, 2012). The defendant indicated that he understood those matters. The trial

court also told the defendant that he had “a right to have an attorney,” and the

defendant confirmed that he waived that right and wanted “to do this” himself. The

court accepted his plea and entered a judgment order to that effect on November

19, 2019. On January 30, 2020, the court sentenced him to 15 years’ imprisonment.

1

Rule 401(a), titled “Waiver of Counsel,” provides:

“Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel

by a person accused of an offense punishable by imprisonment without first, by addressing the

defendant personally in open court, informing him of and determining that he understands the

following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including, when

applicable, the penalty to which the defendant may be subjected because of prior

convictions or consecutive sentences; and

(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for

him by the court.” Ill. S. Ct. R. 402(a) (eff. July 1, 1984).

-3-

¶7 The defendant then filed a pro se “Appeals Motion to Withdraw Plead [sic] of

Guilty,” asking the trial court to reconsider his sentence or to vacate his guilty plea.

At the hearing on that motion, the defendant indicated that he wanted a “private

attorney” because he wanted a speedy trial. The trial court again advised the

defendant that he was entitled to an attorney. The court later reappointed the same

public defender to represent the defendant. At a status hearing, appointed counsel

informed the court that the defendant did not want the court to vacate his guilty

plea, but only to reconsider his sentence. Counsel filed such a motion, and the trial

court denied it on May 7, 2021.

¶8 That day, the defendant filed a notice of appeal. Paragraph eight of the notice

stated, “If appeal is not from a conviction, nature of order appealed from: MOTION

TO RECONSIDER SENTENCE.” More than six months later, on November 12,

2021, the defendant filed an amended notice of appeal in the trial court. The

amended notice again specified that the defendant wanted to appeal the May 7

order. The defendant also filed in the appellate court a corresponding “unopposed”

motion for leave to file an amended notice of appeal. In that motion the appellate

defender stated, “In reviewing the record, counsel noted that the notice of appeal

filed by the Clerk erroneously includes paragraph eight. Defendant is appealing his

conviction and all rulings related thereto, which became final on May 7, 2021.” The

appellate court allowed that motion.

¶9 A divided panel of the appellate court affirmed the defendant’s conviction and

sentence. 2022 IL App (3d) 210194-U. The defendant’s central contention was that

his conviction should be reversed because the trial court failed to comply with the

admonishment requirements of Rule 401(a) before he waived his right to counsel.

The appellate court majority stated that the defendant forfeited review of the Rule

401(a) issue because he neither objected to the court’s admonishment nor raised the

issue in his postplea motions. Id. ¶ 11. The majority stated, however, that that issue

is subject to plain error review because the right to counsel is so fundamental that

the failure to properly issue Rule 401(a) admonishments amounts to a reversible

second-prong plain error. Id. (citing People v. Brzowski, 2015 IL App (3d) 120376,

¶ 42).

¶ 10 The appellate court majority then shifted its attention to the plain error doctrine,

stating that the first step in plain error review is to determine whether a plain error

-4-

occurred. Id. (citing People v. Piatkowski, 225 Ill. 2d 551, 564-65 (2007)).

According to the majority, “[f]or a court to accept a plea of guilty entered by a self-

represented defendant, the defendant must make a valid waiver of his right to

counsel.” Id. ¶ 12. Rule 401(a) requires a court to inform the defendant of and

determine that the defendant understands the nature of the charge, the minimum

and maximum sentence, and his right to appointed counsel before accepting his

waiver of counsel. Id. The majority acknowledged that strict compliance with the

rule is not required if the record indicates that the waiver was made knowingly and

voluntarily and that the admonishment the defendant received did not prejudice his

rights, either because the defendant already knows of the omitted information or

because the defendant’s degree of legal sophistication makes evident the

defendant’s awareness of the omitted information. Id. ¶ 13.

¶ 11 The appellate court majority reviewed the facts. Here, immediately before

accepting the defendant’s waiver, the trial court questioned the defendant about his

education and prior involvement in the legal system. Id. ¶ 14. The trial court also

extensively admonished the defendant about the disadvantages of self-

representation. Id. However, the court failed to advise the defendant of the nature

of the charge, the possible sentencing range, and that he had a right to appointed

counsel. Id. Despite these omissions, the record showed that the court stated the

potential minimum and maximum sentencing range for the offense less than three

months before the plea. Id. The majority noted that the defendant’s motions

demonstrated that he knew the charge against him. Id. Thus, any deficiency in the

court’s admonition regarding the nature of the offense and sentencing was therefore

harmless. Id. The majority concluded that, “[i]n light of the record, we cannot say

that the defendant’s waiver was rendered unknowing or unintelligent because the

court provided an inadequate Rule 401(a) admonishment. Thus, the court’s

admonishment did not amount to a plain error.” Id. ¶ 15.

¶ 12 Justice McDade dissented. She stated that, while the trial court made admirable

efforts to dissuade the defendant from the unwise decision to represent himself,

those efforts did not include the required admonishments of Rule 401(a). Id. ¶ 21

(McDade, J., dissenting). She noted that there was evidence in the record that the

defendant suffered from mental illness and that he had drug use issues. Id. ¶ 22.

Justice McDade insisted,

-5-

“There is no factual basis for the majority’s assumption that defendant could or

did remember something that had been told to him three months earlier and,

therefore, no support for any assumption that giving the required

admonishments prior to defendant’s waiver of his right to counsel was

excusable because it was unnecessary.” Id.

¶ 13 This court allowed the defendant’s petition for leave to appeal. See Ill. S. Ct. R.

315(a) (eff. Oct. 1, 2021).

¶ 14 ANALYSIS

¶ 15 Before we reach the merits in this appeal, we must address a jurisdictional issue.

Though neither the defendant nor the State mentions jurisdiction in their briefs, a

reviewing court has an independent duty to consider sua sponte issues of

jurisdiction. See People v. Smith, 228 Ill. 2d 95, 104 (2008).

¶ 16 Illinois Supreme Court Rule 606(d) (eff. Mar. 12, 2022) states that a notice of

appeal in a criminal case may be amended as provided in Rule 303(b)(5) (Ill. S. Ct.

R. 303(b)(5) (eff. July 1, 2017)). Rule 303(b)(5) states that a notice of appeal may

be amended without leave of court within the initial 30-day period to file an appeal.

Id. The rule continues, “[t]hereafter it may be amended only on motion, in the

reviewing court, pursuant to paragraph (d) of this rule.” Id. Rule 303(d), in turn,

offers an additional 30-day period in which the reviewing court may grant leave to

file an amended notice of appeal upon motion “supported by a showing of

reasonable excuse.” Ill. S. Ct. R. 303(d) (eff. July 1, 2017). Once that additional 30-

day period has lapsed, “the appellate court lacks jurisdiction to permit any further

amendment of the notice of appeal.” Peters v. Herrin Community Unit School

District No. 4, 2015 IL App (5th) 130465, ¶ 22 (citing Ebert v. Dr. Scholl’s Foot

Comfort Shops, Inc., 137 Ill. App. 3d 550, 556 (1985)). Here, the defendant’s

motion for leave to file an amended notice of appeal was filed well after the

additional 30-day period. The appellate court had no jurisdiction to allow that

motion. The appellate court only had jurisdiction as conferred by the defendant’s

original notice of appeal.

¶ 17 Rule 303(b)(2), which governs civil appeals, provides that the notice of appeal

must “specify the judgment or part thereof or other orders appealed from and the

-6-

relief sought from the reviewing court.” Ill. S. Ct. R. 303(b)(2) (eff. July 1, 2017).

This court has similarly observed, “In criminal cases, ‘[a] notice of appeal confers

jurisdiction on an appellate court to consider only the judgments or parts of

judgments specified in the notice.’ ” (Emphases omitted.) People v. Bingham, 2018

IL 122008, ¶ 16 (quoting People v. Lewis, 234 Ill. 2d 32, 37 (2009)).

¶ 18 The defendant’s original notice of appeal specified that he was appealing the

trial court’s May 7, 2021, order denying his motion to reconsider his sentence. The

appellate court had jurisdiction to review that order, but it did not do so. Instead,

the appellate court reviewed the trial court’s November 19, 2019, order entering

judgment on the defendant’s guilty plea—the order to which the appellate defender

alluded in the untimely motion for leave to file an amended notice of appeal. The

appellate court lacked jurisdiction to review that order.

¶ 19 This appeal, however, presents weighty issues concerning the finality of

judgments pursuant to guilty pleas, the applicability of supreme court rules, the

right to counsel, and the second prong of our plain error doctrine. In the exercise of

our supervisory authority under article VI, section 16, of the Illinois Constitution

(Ill. Const. 1970, art. VI, § 16), we will address those issues to provide guidance to

the bench and bar in future cases. See McDunn v. Williams, 156 Ill. 2d 288, 301-02

(1993) (stating that this court’s supervisory authority is “ ‘ “directed primarily to

inferior tribunals” ’ ” and incidentally to litigants (emphasis omitted) (quoting In re

Huff, 91 N.W.2d 613, (Mich. 1958), quoting 14 Am. Jur., Courts, § 265 (1938))).

¶ 20 The defendant argues that the trial court committed reversible error when it

failed to admonish him pursuant to Rule 401(a) at the time the court accepted his

waiver of counsel. There are three impediments that the defendant cannot

overcome. First, the defendant waived any Rule 401(a) claim by pleading guilty.

Second, he waived such a claim by failing to raise it in a postplea motion as required

by Rule 604(d) (Ill. S. Ct. R. 604(d) (eff. July 1, 2017)). Third, even if the

defendant’s claim had not been waived, but only forfeited, his forfeiture would not

be excusable as second-prong plain error because a Rule 401(a) violation is not akin

to structural error.

¶ 21 This court has long held that “a constitutional right, like any other right of an

accused, may be waived, and a voluntary plea of guilty waives all errors or

irregularities that are not jurisdictional.” People v. Brown, 41 Ill. 2d 503, 505 (1969)

-7-

(citing People v. Dennis, 34 Ill. 2d 219 (1966), and People v. Smith, 23 Ill. 2d 512

(1961)); accord People v. Del Vecchio, 105 Ill. 2d 414, 433 (1985); People v.

Peeples, 155 Ill. 2d 422, 491 (1993); People v. Jackson, 199 Ill. 2d 286, 297 (2002)

(stating that the defendant’s decision to plead guilty is “quintessential waiver”);

People v. Sophanavong, 2020 IL 124337, ¶ 33 (“defendant’s act of pleading guilty

forecloses any claim of error”); People v. Jones, 2021 IL 126432, ¶ 20.

¶ 22 In People v. Townsell, 209 Ill. 2d 543, 545 (2004), we stated unequivocally that

the waiver of constitutional claims consequent to a guilty plea is distinguishable

from a forfeiture of such claims that may be excused under our plain error doctrine

as memorialized in Rule 615(a) (Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967)). We

explained that

“invocation of Supreme Court Rule 615(a) is entirely out of place in this

context. Rule 615(a) is concerned with waivers that result from failing to bring

an error to the trial court’s attention. Under that Rule, ‘[p]lain errors or defects

affecting substantial rights may be noticed [on appeal] although they were not

brought to the attention of the trial court.’ [Citation.] In relation to a guilty plea,

by contrast, ‘waiver’ refers to the ‘ “voluntary relinquishment of a known

right.” ’ [Citation.] *** Rule 615(a) in no way speaks to waivers ***.”

Townsell, 209 Ill. 2d at 547-48.

¶ 23 Rule 604(d) works in tandem with the guilty-plea waiver principle. That rule

provides,

“No appeal from a judgment entered upon a plea of guilty shall be taken unless

the defendant, 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

challenged, or, if the plea is being challenged, a motion to withdraw the plea of

guilty and vacate the judgment.” Ill. S. Ct. R. 604(d) (eff. July 1, 2017).

The rule further provides that “[t]he motion shall be in writing and shall state the

grounds therefor” and that “[u]pon appeal any issue not raised by the defendant in

the motion to reconsider the sentence or withdraw the plea of guilty and vacate the

-8-

judgment shall be deemed waived.” Id. 2 Rule 604(d) serves the systemic interest

in the finality of judgments, while offering an important outlet that allows the

defendant to avoid waiver of any constitutional claims by raising them in a postplea

motion.

¶ 24 The defendant here pleaded guilty. Before accepting that plea, the trial court

gave him the proper admonishments required under Rule 402(a) (see Ill. S. Ct. R.

402(a) (eff. July 1, 2012)), which included the nature of the charge, the sentencing

range, and the consequences of a guilty plea. The trial court also informed the

defendant that he had a right to counsel and confirmed that he wished to waive that

right. The defendant never argued that his plea was less than knowing and

voluntary. Any constitutional claims that arose before his plea, including any claim

related to his right to counsel, were waived. See Jones, 2021 IL 126432, ¶ 20;

Sophanavong, 2020 IL 124337, ¶ 33 (“Given that he waived all nonjurisdictional

errors by pleading guilty, defendant should not be rewarded after standing silent all

these years.”).

¶ 25 Several months later, the defendant complied with Rule 604(d) by filing a

pro se motion to withdraw his guilty plea in which he raised seven points. The

defendant requested appointed counsel, and counsel later filed a motion to

reconsider his sentence. In that motion, counsel contended that the trial court gave

too much weight to the defendant’s criminal history and not enough weight to his

age, “mental issues,” substance abuse issues, and rehabilitation potential. Neither

the defendant’s pro se motion to withdraw his guilty plea nor his motion to

reconsider his sentence filed by appointed counsel mentioned any failure by the

trial court to give the admonishments required by Rule 401(a). Under Rule 604(d),

that issue was waived.

¶ 26 Rule 604(d) is unmistakably clear: Any issue not raised in a posttrial motion is

“waived” on appeal. Though forfeiture may be a limitation on the parties, and not

this court, we have never stated that the same is true of waiver, and with good

2

We recognize that we have strayed from the text of Rule 401(a), commenting without rationale

that the defendant’s failure to raise an issue in a postplea motion is more properly termed a forfeiture

than a waiver. Sophanavong, 2020 IL 124337, ¶ 22 n.1. Here, we rectify that misstep and track the

language of what we previously called the “waiver rule.” People v. Stewart, 123 Ill. 2d 368, 374

(1988) (“by its explicit terms, Rule 604(d) states that issues not preserved in a motion to vacate a

guilty plea are waived”).

-9-

reason. Forfeiture may be inadvertent—a failure to make a timely assertion of a

right. See Gallagher v. Lenart, 226 Ill. 2d 208, 229 (2007). Waiver, by contrast, is

never inadvertent because it is an intentional relinquishment of a right.

¶ 27 Moreover, “the rules adopted by this court concerning criminal defendants and

guilty pleas are in fact rules of procedure and not suggestions.” People v. Wilk, 124

Ill. 2d 93, 103 (1988). As such, “[i]t is incumbent upon counsel and courts alike to

follow them.” Id. This court in Wilk explained that our rules concerning guilty

pleas, including Rule 604(d), “mesh together not only to ensure that defendants’

constitutional rights are protected, but also to avoid abuses by defendants.” Id. We

continued:

“Rule 604(d) has a purpose. That purpose is to ensure that before a criminal

appeal can be taken from a guilty plea, the trial judge who accepted the plea

and imposed sentence be given the opportunity to hear the allegations of

improprieties that took place outside the official proceedings and dehors the

record, but nevertheless were unwittingly given sanction in the courtroom. Rule

604(d) provides for fact finding to take place at a time when witnesses are still

available and memories are fresh. [Citation.] A hearing under Rule 604(d)

allows a trial court to immediately correct any improper conduct or any errors

of the trial court that may have produced a guilty plea. The trial court is the

place for fact finding to occur and for a record to be made concerning the factual

basis upon which a defendant relies for the grounds to withdraw a guilty plea.”

Id. at 104.

See People v. Walls, 2022 IL 127965, ¶ 25 (stating that “Rule 604(d) is intended to

ensure that trial courts have an opportunity to correct any potential errors in guilty

pleas and sentences prior to appeal, while witnesses are available and memories are

fresh,” thereby “promoting the finality of judgments by preventing repeated or

successive postjudgment motions that only prolong the proceedings” (citing People

v. Gorss, 2022 IL 126464, ¶ 15)).

¶ 28 Because the defendant did not raise the trial court’s Rule 401(a) violation in

either his pro se motion to withdraw his guilty plea or in his motion to reconsider

his sentence filed by appointed counsel, the trial court did not have the opportunity

to address and correct any errors. Thus, the defendant’s omission of that issue in

his postplea motions waived consideration of it on review.

- 10 -

¶ 29 Another independent and equally important rationale supports our decision.

Even if the defendant’s Rule 401(a) claim had not been waived but only forfeited,

that claim is not cognizable as second-prong plain error.

¶ 30 Certainly, the trial court did not substantially comply with Rule 401(a). At the

defendant’s arraignment, a judge advised him that he was charged with robbery,

that the sentencing range was 6 to 30 years with 3 years of mandatory supervised

release, and that he had the right to appointed counsel. At the defendant’s next court

appearance 11 weeks later, another judge prudently advised the defendant about the

difficulties of proceeding pro se but did not admonish the defendant in accordance

with Rule 401(a). 3

¶ 31 Below, the appellate court majority brushed past the defendant’s failure to raise

the trial court’s lack of admonitions “because the right to counsel is so fundamental

that the failure to properly issue Rule 401(a) admonishments amounts to a

reversible second-prong plain error.” 2022 IL App (3d) 210194-U, ¶ 11. The

appellate court majority cited Brzowski, 2015 IL App (3d)120376, ¶ 42, for that

proposition. This is what Brzowski says:

“The right to counsel is fundamental. [People v. ]Black, 2011 IL App (5th)

080089, ¶ 24. Failure to issue Rule 401 admonitions amounts to plain error.

People v. Vazquez, 2011 IL App (2d) 091155, ¶ 14; Black, 2011 IL App (5th)

080089, ¶ 23; People v. Vernón, 396 Ill. App. 3d 145, 150 (2009); People v.

Jiles, 364 Ill. App. 3d 320, 329 (2006); People v. Herring, 327 Ill. App. 3d 259,

261 (2002); People v. Stoops, 313 Ill. App. 3d 269, 273 (2000).” Id.

¶ 32 The problem for the appellate court majority, and ultimately for the defendant

in this regard, is twofold. First, Brzowski and the cases that it cites are

distinguishable because they involve convictions following trials and not

convictions after guilty pleas. Second, neither Brzowski nor the cases that it cites

engage in a meaningful analysis of whether a clear Rule 401(a) violation that was

not raised in a postplea or posttrial motion constitutes second-prong plain error.

¶ 33 In Brzowski and its supporting cases, the trial court violated Rule 401(a), and

the defendants represented themselves at trial. The concern animating our second-

3

We note that, prior to accepting his guilty plea, the trial court did inform the defendant of the

three matters listed in Rule 401(a).

- 11 -

prong plain error jurisprudence is that the error may have undermined the fairness

of the defendant’s trial. See People v. Herron, 215 Ill. 2d 167, 186 (2005). That

concern is manifest when the defendant has a trial and is absent when the defendant

does not have a trial. Those are dramatically different scenarios with dramatically

different implications. In the former scenario, when the defendant proceeds pro se,

despite the lack of Rule 401(a) admonishments, and is later convicted, there is

uneasiness that stems from the uncertainty whether the waiver of counsel affected

the outcome. That uneasiness and uncertainty disappears when the defendant pleads

guilty. Here, the defendant has never asserted that the trial court’s Rule 401(a)

violation contributed in any way to his decision to plead guilty, and he has likewise

never asserted that his guilty plea was involuntary or unknowing.

¶ 34 Further, a close examination of the line of authority in Brzowski shows that the

appellate court created the proposition that Rule 401(a) violations are second-prong

plain error out of thin air in People v. Robertson, 181 Ill. App. 3d 760 (1989). There,

the State argued that the defendant had “waived” the issue of inadequate Rule

401(a) admonishments. Without citing anything as support, the appellate court

responded: “We decline to treat the matter as waived. The right to counsel is so

fundamental it is not lightly deemed waived.” Id. at 763.

¶ 35 That is the entire discussion in that case, and it spawned a legion of other

“holdings.” Calling a Rule 401(a) violation second-prong plain error is not the

result of any principled analysis but a product of appellate court fiat, copied and

pasted for now 35 years. Rule 401(a) is not an understudy of the right to counsel,

and repetition is a poor substitute for reasoning.

¶ 36 Robertson and much of its progeny predate significant advances in our plain

error jurisprudence, including People v. Sebby, 2017 IL 119445, which largely

outlined the proper approach to first-prong plain error, and People v. Moon, 2022

IL 125959, which did the same for second-prong plain error. Moon controls here.

¶ 37 In Moon, the court faced the question of whether the trial court’s failure to

administer the jury oath, to which the defendant did not object, could be reviewed

as second-prong plain error. The court observed that we have generally equated

second-prong plain error with “structural error.” Id. ¶ 28 (citing People v. Glasper,

234 Ill. 2d 173, 197-98 (2009)). A structural error is one that “necessarily renders

a criminal trial fundamentally unfair or is an unreliable means of determining guilt

- 12 -

or innocence.” Id. Citing several United States Supreme Court cases, the court

posited that structural errors are a very narrow group that defies harmless error

analysis. Id. That is, if a constitutional claim can be harmless beyond a reasonable

doubt, it does not affect the fundamental fairness of a defendant’s trial. Id.

¶ 38 “The structural errors identified by the Supreme Court include a complete

denial of counsel, denial of self-representation at trial, trial before a biased judge,

denial of a public trial, racial discrimination in the selection of a grand jury, and a

defective reasonable doubt instruction.” Id. ¶ 29 (citing Washington v. Recuenco,

548 U.S. 212, 218 n.2 (2006)). Those errors deprive defendants of basic protections,

such that their trials are not a reliable vehicle for determining guilt. Id. (citing Neder

v. United States, 527 U.S. 1, 8-9 (1999)).

¶ 39 The court continued, noting that the six structural errors identified by the

Supreme Court are not necessarily a limitation on this court’s determination of

whether an error is cognizable under the second prong. Id. ¶ 30. However, “in

analyzing whether an error is structural under the second prong of the plain error

rule, we often look to the type of errors that the United States Supreme Court has

identified as structural to determine whether the error being considered is

comparable.” Id.

¶ 40 The court examined the history of the jury oath and found that it was “firmly

rooted in American jurisprudence” (id. ¶ 31), even before the first Illinois

Constitution in 1818 (id. ¶ 34). In light of that “long and storied history,” we

concluded that the oath was an essential and universal element of a jury trial due to

its important role in ensuring the defendant’s right to an impartial jury. Id. ¶ 62.

Thus, the failure to administer a jury oath was akin to structural error, and the

defendant’s failure to object was excusable under the second prong of our plain

error doctrine. Id. ¶ 64.

¶ 41 In People v. Jackson, 2022 IL 127256, the court faced the question of whether

the trial court’s failure to poll the jury, to which the defendant did not object, could

be reviewed as second-prong plain error. The court reinforced the approach in

Moon, stating, “In determining whether an error is structural for purposes of

applying the second prong of Illinois’s plain error rule, we often look to the types

of errors that the United States Supreme Court has found to be structural error and

determine whether the error being considered is similar.” Id. ¶ 30.

- 13 -

¶ 42 The court determined that jury polling is “a safeguard that is designed to help

ensure that the defendant is afforded an important constitutional right,” juror

unanimity. Id. ¶ 33. However, even though polling is “ ‘rooted deep in our common

law’ ” and “directly tied” to that right, polling is not coextensive with that right but

rather subordinate to it. Id. ¶ 34 (quoting People v. McGhee, 2012 IL App (1st)

093404, ¶ 15). That is, jury polling is not a fundamental right guaranteed by either

the federal or state constitution but a right bestowed only by judicial grace as “a

safeguard for ensuring juror unanimity.” Id. ¶ 53. We concluded that “[a]n error in

the polling process is the type of error that is amenable to harmless error analysis.

Therefore, forfeiture of the polling error can be excused under first-prong plain

error standards, not under second-prong plain error standards.” Id.

¶ 43 The question in this case becomes clear: Is a Rule 401(a) violation akin to

structural error, so it may be reviewed as second-prong plain error, or is it akin to

trial error, so it is subject to harmless error analysis and may be reviewed only as

first-prong plain error? The answer, decidedly, is the latter.

¶ 44 The admonitions required under Rule 401(a) lack the historical pedigree of the

jury oath and jury polling. The committee comments to Rule 401 note that the rule

was adopted in 1967 and amended in 1970. See Ill. S. Ct. R. 401, Committee

Comments (rev. Apr. 27, 1984). Further, while Rule 401(a) is “a safeguard that is

designed to help ensure that the defendant is afforded an important constitutional

right” (Jackson, 2022 IL 127256, ¶ 33), the rule is tangential to the constitutional

right itself. Nothing in the federal or state constitutions requires any admonitions

before a defendant may waive the right to counsel, which explains why we have

repeatedly held that the trial court need only substantially comply with the rule.

See, e.g., People v. Campbell, 224 Ill. 2d 80, 84 (2006); People v. Haynes, 174 Ill.

2d 204, 236 (1996). The fact that substantial compliance is sufficient indicates that

a Rule 401(a) violation, if pressed in a postplea or posttrial motion, would be

subject to a record-intensive and prejudice-focused harmless error analysis. If such

a violation rose to the level of structural error, strict compliance would be required.

Stated differently, it is conceivable that a defendant could knowingly and

voluntarily waive the right to counsel, proceed pro se, and still have a fair trial

without the admonitions.

- 14 -

¶ 45 Our recent decision in People v. Marcum, 2024 IL 128687, is instructive. In

Marcum, the court addressed whether a statutory speedy trial violation to which the

defendant did not object could be reviewed under the second prong. The court said

no, observing that “the speedy trial statute was designed to implement the

constitutional right to a speedy trial, but the constitutional right to a speedy trial is

not coextensive with the statutorily prescribed period.” Id. ¶ 39. Because the

General Assembly specifically provided that a speedy trial violation may be

waived, a violation of the statutory right to a speedy trial could not be second-prong

plain error: “[T]he legislature would not have provided for waiver of the speedy

trial statute if a violation of that statute alone resulted in an unfair trial or challenged

the integrity of the judicial process.” Id. ¶ 41.

¶ 46 Similarly, we would not have held repeatedly that substantial compliance with

Rule 401(a) is sufficient if strict compliance were necessary to protect the right to

counsel. Because a Rule 401(a) violation is not akin to structural error, such a

violation, if not raised in a postplea or posttrial motion, is not cognizable as second-

prong plain error but only as first-prong plain error. 4

¶ 47 CONCLUSION

¶ 48 Because the appellate court did not have jurisdiction over the defendant’s Rule

401(a) claim, it was without authority to reach the merits of that issue, and we

accordingly must vacate its judgment. We hold, however, that the defendant waived

any claim regarding Rule 401(a) when he pleaded guilty and he again waived any

such claim when he failed to raise that issue in his postplea motions. Additionally,

the trial court’s Rule 401(a) violation was not second-prong plain error. For these

reasons, we vacate the judgment of the appellate court and affirm the judgment of

the circuit court.

¶ 49 Appellate court judgment vacated.

4

To the extent that Robertson and any of its progeny are inconsistent with our holding in this

case, they are overruled.

- 15 -

¶ 50 Circuit court judgment affirmed.

¶ 51 JUSTICE CUNNINGHAM, specially concurring:

¶ 52 I agree with and join Justice O’Brien’s special concurrence. This court should

not invoke its supervisory authority to review the merits of the defendant’s

challenge to his guilty plea or to review the reasoning of the vacated appellate court

opinion. However, the majority does improperly undertake this review, and thus,

the majority’s decision on the merits now stands as binding law. Further, Justice

O’Brien’s special concurrence does not address the majority’s analysis of the

defendant’s claim. Accordingly, because I disagree with much of the majority’s

analysis, I am compelled to respond with a special concurrence of my own.

¶ 53 Whether a Guilty Plea Waives Any Claim That There

Was No Valid Waiver of Counsel Prior to the

Entry of the Plea

¶ 54 The defendant, Earl Ratliff, contends that the trial court failed to timely

admonish him in accordance with Illinois Supreme Court Rule 401(a) (eff. July 1,

1984) prior to the entry of his guilty plea. This failure, Ratliff alleges, meant that

he never properly waived his sixth amendment right to counsel and, therefore, his

guilty plea is invalid.

¶ 55 The majority rejects this contention. The majority holds that, by pleading guilty,

Ratliff affirmatively waived his claim and, specifically, that by pleading guilty,

Ratliff waived any “constitutional claims that arose before his plea, including any

claim related to his right to counsel.” Supra ¶ 24. I disagree.

¶ 56 The United States Supreme Court has long recognized that “a guilty plea to a

felony charge entered without counsel and without a waiver of counsel is invalid.”

See Brady v. United States, 397 U.S. 742, 748 n.6 (1970). It follows, therefore, that

a defendant may always argue on appeal that his pro se guilty plea was entered

without a valid waiver of counsel because such an argument is a challenge to the

validity of the plea itself. As the United States Supreme Court has stated, “when

the judgment of conviction upon a guilty plea has become final and the offender

- 16 -

seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the

underlying plea was both counseled and voluntary.” (Emphasis added.) United

States v. Broce, 488 U.S. 563, 569 (1989).

¶ 57 The majority’s holding in this case that a pro se guilty plea waives any

argument regarding the right to counsel that preceded the plea, including any claim

that there was no valid waiver of counsel prior to the entry of the plea, is squarely

at odds with binding United States Supreme Court authority. Moreover, the

majority’s holding fails as a matter of simple logic: the majority is holding that,

because Ratliff pled guilty, he waived his argument that his guilty plea was invalid.

This reasoning does not withstand scrutiny.

¶ 58 In this case, Ratliff cannot prevail in his argument that he did not waive his right

to counsel before pleading guilty because, as Justice O’Brien notes in her special

concurrence, there was no Rule 401(a) error (infra ¶ 79) and Ratliff did, in fact,

voluntarily forgo his right to counsel. However, contrary to the majority’s

conclusion, Ratliff did not waive his right to raise this argument by pleading guilty.

¶ 59 Whether the Failure to Include a Claim in a

Postplea Motion Constitutes an Affirmative Waiver

¶ 60 The majority also holds that Ratliff affirmatively waived his claim that he did

not, in fact, waive his right to counsel before pleading guilty because he failed to

raise this contention in a postplea motion. According to the majority, the failure to

include an issue in a postplea motion required by Illinois Supreme Court Rule

604(d) (eff. July 1, 2017) operates as an affirmative waiver rather than a forfeiture

or procedural default (supra ¶ 26), and therefore, the issue may not be pursued on

appeal. This conclusion regarding the operation of Rule 604(d) is incorrect.

¶ 61 Rule 604(d) provides that

“[n]o appeal from a judgment entered upon a plea of guilty shall be taken unless

the defendant, 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

challenged, or, if the plea is being challenged, a motion to withdraw the plea of

guilty and vacate the judgment.” Ill. S. Ct. R. 604(d) (eff. July 1, 2017).

- 17 -

The rule further provides that “[u]pon appeal any issue not raised by the defendant

in the motion to reconsider the sentence or withdraw the plea of guilty and vacate

the judgment shall be deemed waived.” Id.

¶ 62 Although Rule 604(d) uses the term “waived,” this court held in People v.

Sophanavong, 2020 IL 124337, that the failure to comply with Rule 604(d) results

in a forfeiture, not a true waiver. As this court explained:

“Over the years, this court has noted that the terms forfeiture and waiver have,

at times, been used interchangeably, and often incorrectly, in criminal cases.

People v. Hughes, 2015 IL 117242, ¶ 37; People v. Blair, 215 Ill. 2d 427, 443

(2005). Forfeiture is defined ‘as the failure to make the timely assertion of [a]

right.’ People v. Lesley, 2018 IL 122100, ¶ 37; see also Buenz v. Frontline

Transportation Co., 227 Ill. 2d 302, 320 n.2 (2008) (stating ‘forfeiture is the

failure to timely comply with procedural requirements’). Waiver, on the other

hand, ‘is an intentional relinquishment or abandonment of a known right or

privilege.’ Lesley, 2018 IL 122100, ¶ 36.” Id. ¶ 20.

We further stated:

“Although *** Rule 604(d) has been referred to as the ‘waiver rule’ (People

v. Stewart, 123 Ill. 2d 368, 374 (1988)), it is more appropriate to ‘use “forfeited’

to mean issues that could have been raised but were not, and are therefore

barred’ (People v. Allen, 222 Ill. 2d 340, 350 n.1 (2006).” Id. ¶ 22 n.1.

¶ 63 The majority now overrules Sophanavong in a footnote (supra ¶ 23 n.2). In so

doing, the majority does not mention stare decisis or explain why Sophanavong’s

reasoning was incorrect. Moreover, the majority does not explain how an

inadvertent failure to include an issue in a postplea motion can be considered a

waiver, i.e., an intentional relinquishment of a known right. Sophanavong was not

wrongly decided. The terms “waiver” and “forfeiture” are often used

interchangeably. Sophanavong should not be overruled, and the majority errs in

doing so.

¶ 64 Further, the majority does not acknowledge the scope of its holding. If, as the

majority holds, the inadvertent failure to include an issue in a postplea motion

results in an affirmative waiver rather than a forfeiture, then plain-error review will

- 18 -

never apply in an appeal from a guilty plea. Plain-error review only applies to

forfeited claims, not ones that have been affirmatively waived. See People v.

Townsell, 209 Ill. 2d 543, 547 (2004) (“Rule 615(a) is concerned with waivers that

result from failing to bring an error to the trial court’s attention,” not true,

affirmative waivers); People v. Holloway, 2019 IL App (2d) 170551, ¶ 44

(acquiescence to an error “does not raise a mere forfeiture to which the plain-error

exception might apply; it creates an estoppel that precludes plain-error analysis”).

This means that any argument that challenges the validity of a plea, no matter how

serious, may not be raised on appeal if it is not preserved in a postplea motion.

¶ 65 To illustrate this point, consider the following: a defendant pleads guilty, but

during the plea colloquy the trial judge gives the defendant incorrect sentencing

information. No one in the trial court notices the error, and it is not raised in a

postplea motion. According to the majority’s reasoning, that error could not be

argued as plain error on appeal, despite its clear impact on the voluntariness of the

plea, because the failure to preserve the issue was an affirmative waiver, not a

forfeiture. This result is illogical and unjust. It is also contrary to previous decisions

from both this court and the United States Supreme Court that have applied plain-

error review in appeals from guilty pleas. See, e.g., People v. Fuller, 205 Ill. 2d

308, 322-23 (2002) (holding that the failure to give a defendant admonishments in

compliance with Illinois Supreme Court Rule 402 (eff. July 1, 1997) may amount

to plain error); United States v. Vonn, 535 U.S. 55 (2002).

¶ 66 Plain Error

¶ 67 Despite determining that Ratliff twice waived his challenge to his guilty plea—

first by pleading guilty and second by failing to include the issue in a postplea

motion—the majority nevertheless proceeds to address whether Ratliff’s claim may

be reviewed as second-prong plain error. Supra ¶ 29. By the majority’s own

reasoning, this analysis is incorrect. As the majority itself acknowledges, plain-

error review applies only to errors that have been forfeited, not ones that have been

affirmatively waived. Supra ¶ 22 (citing Townsell, 209 Ill. 2d at 545). The majority

thus contradicts itself by first finding that Ratliff waived his claim and then

addressing it as plain error.

- 19 -

¶ 68 Further, “[t]he initial step in conducting plain-error analysis is to determine

whether error occurred at all.” People v. Walker, 232 Ill. 2d 113, 124 (2009). Here,

no error occurred, thus eliminating any need for this court to determine whether

second prong plain error was applicable to Ratliff’s claim.

¶ 69 In a footnote, the majority appears to acknowledge that no error occurred in this

case and that Ratliff was, in fact, properly admonished in accordance with Rule

401(a). Supra ¶ 30 n.3. Yet, in the same paragraph, the majority also states that “the

trial court did not substantially comply with Rule 401(a).” Supra ¶ 30. The majority

opinion is again contradictory. No error occurred in this case. The majority’s

discussion of whether second prong plain error applies to Ratliff’s claim is therefore

unnecessary and ignores established principles of law.

¶ 70 For these reasons, I specially concur.

¶ 71 JUSTICE O’BRIEN, specially concurring:

¶ 72 I agree with the majority that the appellate court lacked jurisdiction to consider

defendant’s challenge to his guilty plea and, therefore, the judgment of the appellate

court must be vacated. I disagree, however, with the majority’s determination to

exercise this court’s supervisory authority to review the correctness of the appellate

court’s order and the merits of defendant’s challenge to his plea. Because I would

vacate the appellate court’s judgment without further comment beyond the

jurisdictional discussion, I specially concur.

¶ 73 I do not agree with the majority’s belief that this case warrants the invocation

of this court’s supervisory authority. This court is vested with “[g]eneral

administrative and supervisory authority over all courts.” Ill. Const. 1970, art. VI,

§ 16. Although our supervisory “authority is unlimited in extent and ‘is bounded

only by the exigencies which call for its exercise,’ ” it is to be “invoked with

restraint.” Eighner v. Tiernan, 2021 IL 126101, ¶ 29 (quoting In re Estate of Funk,

221 Ill. 2d 30, 97-98 (2006)). We invoke our supervisory authority “only in

exceptional circumstances, where ‘the normal appellate process will not afford

adequate relief and the dispute involves a matter important to the administration of

justice.’ ” Id. (quoting People ex rel. Birkett v. Bakalis, 196 Ill. 2d 510, 513 (2001)).

We also invoke our supervisory authority when our “ ‘intervention is necessary to

- 20 -

keep an inferior court or tribunal from acting beyond the scope of its authority.’ ”

People v. Salem, 2016 IL 118693, ¶ 21 (quoting In re J.T. 221 Ill. 2d 338, 347

(2006)).

¶ 74 None of the circumstances that would warrant exercising this court’s

supervisory authority are present in this case. Because the appellate court lacked

jurisdiction to review defendant’s challenge to his guilty plea, the appellate court’s

order is void. See Municipal Trust & Savings Bank v. Moriarty, 2021 IL 126290,

¶ 17 (a void order or judgment is one entered by a court without jurisdiction of the

subject matter or the parties). This court has no compelling reason to address the

appellate court’s order or reasoning. See Kelch v. Watson, 237 Ill. App. 3d 875, 877

(1992) (when an order is vacated, it is as if the order had never been entered). The

appellate court’s judgment is without effect. Thus, contrary to the majority’s

assertion, there are no “weighty issues” (supra ¶ 19) presented by that order that

demand this court’s attention or that justify the exercise of supervisory authority.

As the majority opinion demonstrates, the appellate process provided adequate

relief because, even after reaching the other issues, the result is the same in that the

judgment of the trial court is affirmed.

¶ 75 Further, by reviewing defendant’s challenge to his guilty plea by invoking our

supervisory authority, we are allowing defendant to proceed in direct contradiction

of the requirements set forth in Illinois Supreme Court Rule 604(d) (eff. July 1,

2017), which requires that, in order to seek review of a plea of guilty, a motion to

withdraw the plea of guilty must first be filed in the trial court. When a defendant

fails to file a motion to withdraw a guilty plea, the reviewing court cannot reach the

merits of a challenge to the plea but, instead, must dismiss the appeal. People ex rel.

Alvarez v. Skryd, 241 Ill. 2d 34, 40 (2011) (citing People v. Flowers, 208 Ill. 2d

291, 301 (2003)).

¶ 76 Although defendant initially filed a pro se postplea motion seeking to withdraw

his guilty plea, he subsequently abandoned that motion and, instead, filed only a

motion to reconsider his sentence, which the trial court then denied. Supra ¶ 8.

Defendant’s deliberate and informed decision to abandon his motion to withdraw

his guilty plea meant that the motion to reconsider his sentence was the only

postplea motion before the trial court. People v. Willoughby, 362 Ill. App. 3d 480,

483-84 (2005). The trial court did not have a motion to withdraw the guilty plea

- 21 -

before it, and no ruling was ever entered on such a motion. The majority, by now

reviewing the merits of defendant’s challenge to his guilty plea in the absence of a

proper postplea motion, has excused defendant from complying with Rule 604(d)’s

motion requirements. I do not believe it is appropriate to review the merits of

defendant’s challenge to his guilty plea when he knowingly abandoned his motion

to reconsider the plea.

¶ 77 Finally, even if the foregoing concerns are set aside, there is no reason to

exercise this court’s supervisory authority to address the merits of defendant’s

challenge to his guilty plea because it is clear that no error occurred in this case.

Defendant argues that his pro se guilty plea was invalid and must be set aside

because he did not waive his sixth amendment right to counsel before entering the

plea. In support of this contention, defendant relies on Illinois Supreme Court Rule

401(a) (eff. July 1, 1984). This rule states that a trial court shall not permit a

defendant to waive counsel without first determining that the defendant understands

the nature of the charge, the penalty he faces, and that he has a right to an attorney.

Defendant argues that the trial court in this case failed to comply with Rule 401(a)

in a timely manner before accepting his plea. Therefore, according to defendant,

there was no waiver of counsel, and his guilty plea is invalid. However, this

contention is refuted by the record.

¶ 78 At the outset of the guilty plea hearing in this case, in November 2019, and

before accepting defendant’s plea, the trial court informed defendant of the charge

against him and the potential punishment he faced. Defendant stated that he

understood these admonishments. Defendant was then informed by the trial court

that he had the right to counsel, which he then expressly waived:

“THE COURT: All right. Mr. Ratliff, you have been representing yourself

in this matter. Do you understand?

MR. RATLIFF: Yes.

THE COURT: All right. Now, you also have a right to have an attorney, but

you waived that right and want to do this yourself?

MR. RATLIFF: Yeah.”

- 22 -

¶ 79 In short, immediately before accepting defendant’s guilty plea, the trial court

addressed him in open court, informing him of and determining that he understood

the three admonishments required by Rule 401(a). Thus, contrary to defendant’s

argument, there was no Rule 401(a) error with respect to his guilty plea.

Accordingly, there is no need for this court to invoke its supervisory authority to

address defendant’s argument that the trial court’s purported violation of Rule

401(a) rendered his plea invalid.

¶ 80 The resolution of this case should be brief and straightforward. This court

should hold that the appellate court lacked jurisdiction, vacate the judgment of the

appellate court, and then, at most, simply state there is no need to exercise

supervisory authority to address defendant’s arguments because no error occurred

in this case. This case simply does not warrant the invocation of supervisory

authority to review the merits of defendant’s challenge to his guilty plea and the

correctness of an appellate court order that has been vacated. Rather than disposing

of this appeal on simple jurisdictional grounds, the majority provides an expansive

advisory opinion, which offers various procedural grounds to resolve the appeal

beyond the jurisdictional question. None of the independent grounds offered by the

majority to affirm the judgment of the trial court are properly before this court.

¶ 81 JUSTICE CUNNINGHAM joins in this special concurrence.

¶ 82 JUSTICE OVERSTREET, concurring in part and dissenting in part:

¶ 83 With regard to the jurisdictional issue presented in this case, I agree with the

dissent that the May 7, 2021, original notice of appeal was timely filed and

conferred jurisdiction on the appellate court to consider the issues raised in the

appeal. See Village of Kirkland v. Kirkland Properties Holdings Co., 2023 IL

128612, ¶ 38. Ratliff’s May 7, 2021, notice of appeal conferred jurisdiction on the

appellate court to review the May 7, 2021, order denying the motion to reconsider

sentence and all orders that were in the procedural progression leading to the denial

of his motion to reconsider sentence. See In re Marriage of Arjmand, 2024 IL

129155, ¶ 27; In re Marriage of O’Brien, 2011 IL 109039, ¶ 23; Burtell v. First

Charter Service Corp., 76 Ill. 2d 427, 435-36 (1979); Foman v. Davis, 371 U.S.

178, 181 (1962); United States v. Rivera Construction Co., 863 F.2d 293, 298 (3d

Cir. 1988); Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir.

- 23 -

1977). Accordingly, I disagree with the majority’s conclusion that the appellate

court lacked jurisdiction to review the circuit court’s November 19, 2019, order

entering judgment on the defendant’s guilty plea. Thus, I find unnecessary the

majority’s decision to exercise supervisory authority under article VI, section 16,

of the Illinois Constitution (Ill. Const. 1970, art. VI, § 16).

¶ 84 Nevertheless, I agree with the majority’s opinion in all other respects. I join

fully in the majority’s analysis on waiver.

¶ 85 For these reasons, I concur in part and dissent in part.

¶ 86 JUSTICE NEVILLE, dissenting:

¶ 87 The majority, before reaching the merits of the appeal, addressed the

preliminary matter of jurisdiction, finding that the appellate court did not have

jurisdiction to grant Ratliff leave to file his November 12, 2021, amended notice of

appeal and finding that the appellate court did not have jurisdiction to review the

November 19, 2019, order entering judgment on Ratliff’s blind guilty plea. Supra

¶¶ 15-18. Despite the majority’s holding that the appellate court did not have

jurisdiction, the majority concludes that, because of the “weighty issues concerning

the finality of judgments pursuant to guilty pleas, the applicability of supreme court

rules, the right to counsel, and the second prong of our plain error doctrine,” it will

exercise its supervisory authority to provide guidance on these issues. Supra ¶ 19.

¶ 88 The majority vacates the judgment of the appellate court for lack of jurisdiction

over Ratliff’s Rule 401(a) claim (see Ill. S. Ct. R. 401(a) (eff. July 1, 1984)) and

holds that, because Ratliff pled guilty, he waived any claim regarding Rule 401(a)

and again waived such a claim when he failed to raise it in a postplea motion

pursuant to Rule 604(d) (Ill. S. Ct. R. 604(d) (eff. July 1, 2017)). Supra ¶ 46. The

majority also holds that the circuit court’s failure to adhere to Rule 401(a) was not

a structural error. Supra ¶ 46.

¶ 89 While I agree with the majority that a reviewing court has an independent duty

to consider sua sponte issues of jurisdiction, I would reach a different result.

Instead, I would find that Ratliff’s May 7, 2021, notice of appeal conferred

jurisdiction on the appellate court to review not only the May 7, 2021, order

- 24 -

denying the motion to reconsider sentence but also to review all orders that were in

the procedural progression leading to the denial of the motion to reconsider

sentence including (1) the January 30, 2020, sentencing order, (2) the November

19, 2019, guilty plea judgment order, and (3) the July 11, 2019, waiver of counsel

order permitting Ratliff to proceed without counsel. See People v. Bingham, 2018

IL 122008 ¶ 16 (under Illinois Supreme Court Rule 615(b) (eff. Jan. 1, 1967), the

scope of appellate review is defined by the trial court’s judgment and the

proceedings and orders related to it). Therefore, because the appellate court had

jurisdiction over the aforementioned orders, there is no need for this court to issue

a supervisory order.

¶ 90 Additionally, I would hold that, because the record includes evidence that

Ratliff did not knowingly and voluntarily enter a blind guilty plea, the plea may

have been void and the circuit court’s imposition of judgment on the uncounseled

plea, without an evidentiary hearing concerning Ratliff’s evidence he did not

understand the plea, violated his right to due process. Consequently, the circuit

court’s imposition of judgment on Ratliff’s uncounseled, blind guilty plea

constituted reversible error. Further, because the court heard no evidence

establishing that Ratliff entered the plea knowingly and voluntarily, the plea did not

waive his Rule 401(a) claim. Accordingly, I respectfully dissent.

¶ 91 I. FACTS

¶ 92 Four dates frame the analysis: July 11, 2019, when Ratliff began representing

himself in court; November 19, 2019, when the court accepted Ratliff’s guilty plea;

November 22, 2019, when Ratliff sent the court a letter telling the judge he did not

understand the guilty plea proceedings; and January 30, 2020, when the court

imposed its sentence on Ratliff.

¶ 93 On July 11, 2019, Ratliff’s appointed counsel appeared before the circuit court

and stated that Ratliff wished to proceed pro se. The circuit court then questioned

Ratliff regarding his level of education and whether he had any mental disabilities.

Ratliff stated that he completed ninth grade and that he has “a part of bipolar.”

Although the record reveals that Ratliff had a criminal history, Ratliff stated that he

had no prior involvement in the legal system.

- 25 -

¶ 94 At the conclusion of the court’s admonishments, Ratliff explained that he felt

“forced” to proceed pro se because his attorney was “threatening” him with 22

years’ imprisonment. After seeking clarity from defense counsel on Ratliff’s claim,

the court found that Ratliff was not forced to proceed pro se. Ratliff stated that he

understood the court’s admonishments, and the circuit court discharged Ratliff’s

counsel.

¶ 95 On November 19, 2019, the assistant state’s attorney informed the judge that

Ratliff wished to enter a blind plea 5 to the charge. Before accepting Ratliff’s plea,

the circuit court reminded Ratliff, who was still without counsel, that he had a right

to an attorney but that he had previously “waived his right to counsel.” The circuit

court admonished Ratliff that he was charged with a Class 2 felony but, because of

his criminal history, he would be sentenced as a Class X offender. The court also

admonished him that he faced a term of imprisonment of 6 to 30 years. That same

day, Ratliff entered a blind plea of guilty without the benefit of counsel, which the

court accepted.

¶ 96 On November 22, 2019, three days after the circuit court accepted his plea and

two months before sentencing, Ratliff sent a letter to the judge explaining that he

did not understand his blind plea: “I was rushing so fast yesterday (in) court with

you’ll [sic] and I didn’t understand it to good about the blind plea.”

¶ 97 On January 30, 2020, while Ratliff was yet again without counsel, the circuit

court entered an order and sentenced Ratliff to 15 years’ imprisonment with a 3-

year term of mandatory supervised release. After sentencing, on February 7, 2020,

Ratliff filed a pro se motion to withdraw his guilty plea, which his reappointed

public defender abandoned. On May 6, 2021, Ratliff’s public defender filed a

motion to reconsider sentence, which the circuit court denied in its May 7, 2021,

order. Finally, on May 7, 2021, the clerk filed Ratliff’s notice of appeal. Ill. S. Ct.

R. 606(a) (eff. Mar. 12, 2021) (the clerk of the trial court, upon request, shall

5

Case law indicates a blind plea is one that “involves no agreement between the defendant and

the State.” People v. Lumzy, 191 Ill. 2d 182, 185 (2000); see People v. Diaz, 192 Ill. 2d 211, 218

(2000) (an open or blind plea, is one where the defendant pleads guilty but does not receive any

promises from the State); People v. Evans, 174 Ill. 2d 320, 332 (1996) (in an open or blind plea the

defendant pleads guilty “without receiving any promises from the State in return”).

- 26 -

prepare, sign and file a notice of appeal for the defendant).

¶ 98 II. ANALYSIS

¶ 99 A. Jurisdiction

¶ 100 Although I agree that Ratliff’s November 12, 2021, amended notice of appeal

was filed outside of the limitations period prescribed in Rule 303(d) (Ill. S. Ct. R.

303(d) (eff. July 1, 2017)) and was therefore untimely and void, the May 7, 2021,

original notice of appeal was timely, and I believe it conferred jurisdiction on the

appellate court to consider the issues raised in Ratliff’s appeal. Therefore, I would

find that the appellate court did have jurisdiction to consider the issues raised in

Ratliff’s appeal, including whether the November 19, 2019, order entering

judgment on Ratliff’s blind guilty plea was valid: knowing and voluntary.

¶ 101 While notices of appeal are jurisdictional, it is generally accepted that “ ‘a

notice of appeal is to be liberally construed.’ ” Village of Kirkland v. Kirkland

Properties Holdings Co., LLC I, 2023 IL 128612, ¶ 38 (quoting Burtell v. First

Charter Service Corp., 76 Ill. 2d 427, 433 (1979)); People v. Smith, 228 Ill. 2d 95,

104 (2008); J. Timothy Eaton, The Timely and Properly Filed Notice of Appeal,

108 Ill. B.J. 26, 28 (2020) (“Courts liberally construe notices of appeal absent

prejudice to the litigants involved.”). “ ‘The purpose of the notice of appeal is to

inform the prevailing party that the other party seeks review of the trial court’s

decision.’ ” Village of Kirkland, 2023 IL 128612, ¶ 39 (quoting People v. Lewis,

234 Ill. 2d 32, 37 (2009)). A notice of appeal should be considered as a whole, and

it “will be deemed sufficient to confer jurisdiction on an appellate court when it

fairly and adequately sets out the judgment complained of and the relief sought,

thus advising the successful litigant of the nature of the appeal.” (Internal quotation

marks omitted.) Id.

¶ 102 A notice of appeal will also confer jurisdiction on the appellate court even if the

order was not expressly mentioned in a notice of appeal, if that order was “a step in

the procedural progression” and a necessary prerequisite leading to the judgment

which was specified in the notice of appeal. In re Marriage of Arjmand, 2024 IL

129155, ¶ 27 (“[N]otices of appeal are to be liberally construed and *** they confer

jurisdiction even if the order was not expressly mentioned in the notice of appeal,

- 27 -

if that order was a step in the procedural progression leading to the judgment which

was specified in the notice of appeal.” (Internal quotation marks omitted.)); In re

Marriage of O’Brien, 2011 IL 109039, ¶ 23; Burtell, 76 Ill. 2d at 436 (1979) (a

notice of appeal confers jurisdiction where an appellant seeks to contest an order

that was “a preliminary determination necessary” for the outcome and was therefore

“sufficiently closely related” to the judgment to justify review).

¶ 103 Federal courts have also reviewed notices of appeal to determine whether a

particular order was a step in the procedural progression and a necessary

prerequisite leading to the judgment specified in the notice of appeal. See United

States v. Rivera Construction Co., 863 F.2d 293, 298 (3d Cir. 1988) (where one

order or judgment was a step in the procedural progression of a second order or

judgment for which a timely notice of appeal has been filed, then an appeal from

the latter judgment may be deemed to include the earlier judgment); Elfman Motors,

Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir. 1977) (“It is true that if from

the notice of appeal itself and the subsequent proceedings on appeal it appears that

the appeal was intended to have been taken from an unspecified judgment order or

part thereof, the notice may be construed as bringing up the unspecified order for

review.”); Foman v. Davis, 371 U.S. 178, 181 (1962) (where the notice of appeal

failed to specifically state the order from which the party was appealing, but it was

apparent that an unnamed order was being appealed from and it did not mislead or

prejudice the respondent, the notice of appeal was effective).

¶ 104 Here, Ratliff’s May 7, 2021, notice of appeal conferred jurisdiction on the

appellate court to review the May 7, 2021, order denying the motion to reconsider

sentence and all orders that were in the procedural progression leading to the denial

of his motion to reconsider sentence. See In re Marriage of Arjmand, 2024 IL

129155, ¶ 27; In re Marriage of O’Brien, 2011 IL 109039, ¶ 23; Rivera

Construction Co., 863 F.2d at 298; Burtell, 76 Ill. 2d at 435-36; Elfman Motors,

Inc., 567 F.2d at 1254; Foman, 371 U.S. at 181. Those orders would include the

January 30, 2020, judgment of sentence; the November 19, 2019, guilty plea

judgment order; and the July 11, 2019, order permitting Ratliff to proceed pro se

(waiver of counsel order).

¶ 105 Moreover, a notice of appeal confers jurisdiction to consider an unnamed ruling

if the intent to address the unnamed ruling is apparent and there will be no prejudice

- 28 -

to the adverse party. See People v. Patrick, 2011 IL 111666, ¶¶ 22-27 (where the

defendant failed to adequately identify the trial court orders appealed from but left

blank the box indicating the appeal was “ ‘not from a conviction,’ ” the notice of

appeal was sufficient to indicate that the defendant was appealing his conviction,

and the record indicated no prejudice to the State); see also United States v.

Knowles, 29 F.3d 947, 949-50 (5th Cir. 1994) (finding that the defendant’s failure

to indicate that he was appealing both his sentence and conviction did not “ ‘per se

preclude appealing’ ” his conviction because his intent to appeal both was apparent

in his brief and was not prejudicial to the adverse party (quoting United States v.

Winn, 948 F.2d 145, 154 (5th Cir. 1991))).

¶ 106 Ratliff has not forfeited review of any issues on appeal. Ratliff argues, both in

his opening appellate court brief and in his opening brief before this court (to which

the State responded), that the circuit court’s failure to admonish him pursuant to

Rule 401(a) before accepting his waiver of counsel “undermined the integrity and

fairness of his guilty plea” or compromised the validity of his guilty plea and that

he requests the court to vacate the guilty plea and remand the cause for a new trial.

Additionally, Ratliff also argued in his petition for leave to appeal before this court

(which we granted a year and a half ago on March 29, 2023) that the circuit court

erred when it accepted his waiver of counsel without admonishing him pursuant to

Rule 401(a), thereby effectively seeking review of the waiver of counsel order.

¶ 107 Because the May 7, 2021, original notice of appeal conferred jurisdiction on the

appellate court to consider orders that were not specifically named in the notice of

appeal but were prerequisites and procedural steps in the progression leading to the

judgment named, the appellate court had jurisdiction to consider Ratliff’s

contentions of error with respect to the November 19, 2019, guilty plea order as

well as the July 11, 2019, waiver of counsel order. See In re Marriage of Arjmand,

2024 IL 129155, ¶ 27; In re Marriage of O’Brien, 2011 IL 109039, ¶ 23; Rivera

Construction Co., 863 F.2d at 298; Burtell, 76 Ill. 2d at 435-36; Elfman Motors,

Inc., 567 F.2d at 1254; Foman, 371 U.S. at 181. Further, the record reveals no

prejudice to the State by liberally construing his notice of appeal as an appeal of

the guilty plea order, of the waiver of counsel order, and of all other orders in the

procedural progression leading to the order denying his motion to reconsider

sentence. It should be noted that the State addressed all of Ratliff’s arguments and

- 29 -

it has never claimed that it suffered prejudice because Ratliff failed to specify orders

in his notice of appeal.

¶ 108 Lastly, the majority relies on Bingham, 2018 IL 122008, ¶ 16, and Lewis, 234

Ill. 2d at 37, for the proposition that a notice of appeal confers jurisdiction on an

appellate court in criminal cases “ ‘ “to consider only the judgments or parts of

judgments specified in the notice.” ’ ” Supra ¶ 17 (quoting Bingham, 2018 IL

122008, ¶ 16, quoting Lewis, 234 Ill. 2d at 37). However, Bingham is

distinguishable from the case on review. First, in Bingham, the defendant argued

that the registration requirement of the Sex Offender Registration Act was

unconstitutional as applied to him on substantive due process grounds and violated

ex post facto principles. This court dismissed the appeal, finding that this was “not

the proper forum for defendant to raise his claims and because an as-applied

constitutional challenge may not be raised where it is litigated for the first time on

review.” Bingham, 2018 IL 122008, ¶ 25. We then vacated the portion of the

appellate court’s judgment that addressed the defendant’s constitutional claims on

the merits. Id. In reaching this conclusion, we reasoned that the defendant’s claims

of error were beyond the scope of review. In other words, the trial court’s judgment

did not include the claims of error asserted by the defendant. Specifically, the trial

court’s order did not require the defendant to register as a sex offender, and this

requirement was not encompassed within any order of the trial court. Id. ¶ 17.

Therefore, no judgment could be properly reviewed by the notice of appeal because

the error defendant sought to appeal was beyond the scope of any judgment entered

by the trial court.

¶ 109 By contrast, the May 7, 2021, notice of appeal in this case conferred jurisdiction

on the appellate court because it was timely filed and sought review of the trial

court’s order denying Ratliff’s motion to reconsider sentence, which necessarily

calls into question all orders leading up to the denial of the motion to reconsider

sentence. The majority’s conclusions that the appellate court had no jurisdiction to

consider the guilty plea order because it was not specifically named in the original

notice of appeal has no merit. The amended notice of appeal was void, and it did

not preempt the May 7, 2021, order because it was filed outside the limitations

period in Rule 303(d). Therefore, it does not affect the analysis. More importantly,

the majority employs a strict construction of the notice of appeal as opposed to a

liberal one. In re Marriage of Arjmand, 2024 IL 129155, ¶ 27 (“[N]otices of appeal

- 30 -

are to be liberally construed and *** they confer jurisdiction even if the order was

not expressly mentioned in the notice of appeal, if that order was a step in the

procedural progression leading to the judgment which was specified in the notice

of appeal.” (Internal quotation marks omitted.)). The circuit court could not have

entered the order denying the motion to reconsider sentence were there not a

sentencing order or a guilty plea order or a waiver of counsel order. Therefore,

construing the original notice of appeal liberally, the appellate court had jurisdiction

to review the guilty plea and waiver of counsel orders.

¶ 110 Additionally, Lewis, 234 Ill. 2d at 37, does not support the conclusion reached

by the majority, but instead it supports the conclusion that a notice of appeal should

be liberally construed and is sufficient to confer jurisdiction where it fairly and

adequately identifies the judgment complained of, such that the appellee is not

prejudiced. In Lewis, we held that, although the defendant’s notice of appeal listed

the date of the denial of the defendant’s motion to suppress, this error did not cause

uncertainty as to the nature of his appeal because the notice expressly stated that he

was appealing from no orders “ ‘other than conviction.’ ” Id. at 38. Therefore, we

held that the “defendant’s notice of appeal, considered as a whole and liberally

construed, adequately identifies the complained-of judgment and informs the State

of the nature of the appeal. Accordingly, the notice was sufficient to confer

jurisdiction on the appellate court to consider this appeal.” Id. at 39.

¶ 111 Like the notice of appeal in Lewis, the notice of appeal in this case, when

construed liberally, adequately identifies the judgment complained of, informs the

State of the nature of the appeal such that there is no prejudice, and permits the

reviewing court to consider the legal issues in all unnamed orders that were a step

in the procedural progression leading to the judgment named in the notice of appeal.

In re Marriage of Arjmand, 2024 IL 129155, ¶ 27; In re Marriage of O’Brien, 2011

IL 109039, ¶ 23; Rivera Construction Co., 863 F.2d at 298; Burtell, 76 Ill. 2d at

435-36; Elfman Motors, Inc., 567 F.2d at 1254; Foman, 371 U.S. at 181. Because

the appellate court had jurisdiction over the issues Ratliff raised in this appeal, we

need not exercise our supervisory authority to provide guidance in future cases.

Instead, we may simply reach the issues Ratliff raised in this appeal, which were

argued in the petition for leave to appeal that this court granted a year and a half

ago and which were thoroughly briefed by the parties before this court.

- 31 -

¶ 112 Therefore, I disagree with the majority and would find that the appellate court

had jurisdiction, pursuant to the May 7, 2021, notice of appeal, to consider Ratliff’s

contentions of error related to his guilty plea order (whether the plea was valid or

knowingly and voluntarily entered) and the waiver of counsel order (whether Ratliff

was advised about his right to counsel on July 11, 2019, as required by Rule 401(a)).

¶ 113 B. Waiver

¶ 114 Next, the majority holds that Ratliff waived any argument that the circuit court

committed reversible error when it failed to admonish him of his right to counsel

pursuant to Rule 401(a) by pleading guilty and by failing to raise the argument in a

postplea motion as required by Rule 604(d). Supra ¶¶ 20-21, 23. I do not believe

Ratliff entered a knowing and intelligent plea; therefore, he was not required to file

a Rule 604(d) postplea motion.

¶ 115 The United States Supreme Court held that, after a guilty plea, a defendant may

not “ ‘raise independent claims relating to the deprivation of constitutional rights

that occurred prior to the entry of the guilty plea.’ ” Blackledge v. Perry, 417 U.S.

21, 29-30 (1974) (quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973)).

However, a defendant may attack “the voluntary and intelligent nature of the guilty

plea, through proof that the advice received from counsel was not ‘within the range

of competence demanded of attorneys in criminal cases.’ ” Id. (quoting McMann v.

Richardson, 397 U.S. 759, 771 (1970)). A guilty plea may be involuntary if the

defendant does not understand that he is waiving constitutional rights or if the

defendant has such an incomplete understanding of the charge that his plea cannot

stand as an intelligent admission of guilt. Henderson v. Morgan, 426 U.S. 637, 645

n.13 (1976); see United States v. Rossillo, 853 F.2d 1062, 1067 (2d Cir. 1988)

(where the court found, inter alia, that a failure to make an on-the-record

determination that the defendant’s plea was knowingly and voluntarily entered

constituted reversible error). In addition to the guilty plea being voluntary, it must

also be a knowing and intelligent act done with “sufficient awareness of the relevant

circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748

(1970).

¶ 116 Similarly, Rule 604(d) contemplates that a defendant will have received advice

from counsel, as it provides that an attorney must “file with the trial court a

- 32 -

certificate stating that the attorney has consulted with the defendant *** to ascertain

defendant’s contentions of error in the sentence and the entry of the plea of guilty.”

Ill. S. Ct. R. 604(d) (eff. July 1, 2017). Moreover, Rule 604(d) refers to Rule 402,

which also assumes that admonishments are going to be given to a counseled

defendant. See Ill. S. Ct. R. 402(d)(1) (eff. July 1, 2012) (“Prior to participating in

the plea discussions, the trial judge shall admonish the defendant and inquire as to

the defendant’s understanding of the following: That the defendant’s attorney has

requested that the trial judge participate in the conference ***.”).

¶ 117 The record establishes that Ratliff was pro se on November 19, 2019, and

entered an uncounseled blind guilty plea that same day. Therefore, Ratliff did not

have the advice of counsel—competent or otherwise—to ensure that his guilty plea

was knowingly and voluntarily entered.

¶ 118 The majority maintains that Ratliff “never argued that his plea was less than

knowing and voluntary.” Supra ¶ 24. However, the record establishes that, on

November 22, 2019, three days after the circuit court accepted his guilty plea and

two months before sentencing, Ratliff sent a letter to the judge explaining that the

blind plea proceedings were moving too quickly and that he did not understand the

blind plea: “I was rushing so fast yesterday (in) court with you’ll [sic] and I didn’t

understand it to good about the blind plea.” Additionally, Ratliff stated on record

that he has only a ninth-grade education, has a history of drug abuse, and has mental

health disorders (namely bipolar disorder, anxiety-depression with suicidal

tendencies, hearing voices, and “incompetency”). The record includes a list of

medications prescribed for Ratliff, and the list includes psychotropic medications.

The court made no inquiry at all into the possible effect of the medications on

Ratliff’s ability to knowingly and voluntarily plead guilty. Because the record

includes unrebutted evidence that Ratliff did not knowingly and voluntarily plead

guilty, the court should have held an evidentiary hearing on the validity of the plea

before sentencing on January 30, 2020. The circuit court’s acceptance of an

uncounseled plea coupled with its failure to hold an evidentiary hearing to

determine if Ratliff understood the plea constitutes reversible error. See Brady, 397

U.S. at 748; Rossillo, 853 F.2d at 1067; see also People v. Brown, 924 N.E.2d 782,

783-84 (N.Y. 2010) (reasoning that “[w]here, however, the record raises a

legitimate question as to the voluntariness of the plea, an evidentiary hearing is

required.”).

- 33 -

¶ 119 In United States v. Ulano, 468 F. Supp. 1054, 1056 (C.D. Cal. 1979), Ulano,

before sentencing, sought leave to withdraw his guilty plea in part because a strong

pain reliever left him “not fully cognizant of what he was doing when he entered

his plea” and his counsel did not render effective assistance. The trial court “refused

to grant an evidentiary hearing” and denied Ulano leave to withdraw his plea. Id. at

1057. The United States Court of Appeals for the Ninth Circuit reversed the trial

court’s judgment entered on the plea and remanded for an evidentiary hearing on

Ulano’s claim he had not validly pled guilty. Id.; see United States v. Ulano, 625

F.2d 1383 (9th Cir. 1980).

¶ 120 Courts have the burden of protecting the fundamental rights of criminal

defendants. See Spano v. New York, 360 U.S. 315, 321 (1959) (acknowledging the

“burden which [law enforcement officers] share, along with our courts, in

protecting fundamental rights of our citizenry, including that portion of our

citizenry suspected of crime”). The majority’s attempt to shift to Ratliff the burden

of protecting his fundamental rights to due process and counsel is flawed and

amounts to a breach of the court’s duty and a violation of Ratliff’s constitutional

rights. The majority asserts the rule that “[a]ny constitutional claims that arose

before his plea, including any claim related to his right to counsel, were waived.

See Jones, 2021 IL 126432, ¶ 20[.]” Supra ¶ 24. This rule applies only to valid

guilty pleas, pleas entered into knowingly and voluntarily. Because the record

includes unrebutted evidence that Ratliff did not understand the guilty plea

proceedings, he did not knowingly and intelligently plead guilty, and this failure of

the circuit court to ensure Ratliff’s understanding, alone, was reversible error. See

Rossillo, 853 F.2d at 1067 (where the court found, inter alia, that a failure to make

an on-the-record determination that the defendant’s plea was knowingly and

voluntarily entered constituted reversible error); Brady, 397 U.S. at 748 (waivers

of constitutional rights not only must be voluntary but must be knowing, intelligent

acts done with “sufficient awareness of the relevant circumstances and likely

consequences”). Therefore, because the circuit court committed reversible error

when it accepted Ratliff’s uncounseled, unknowing plea, Ratliff did not waive any

claims, including his claim that the circuit court committed reversible error when it

failed, on July 11, 2019, to admonish him about his right to counsel as required by

Rule 401(a).

- 34 -

¶ 121 It is axiomatic that criminal defendants have a constitutional right to effective

assistance of counsel, and this right attaches at every critical stage of the

proceedings, including when the defendant enters a blind guilty plea. People v.

Brown, 2017 IL 121681, ¶ 25. A critical stage includes any proceeding where

constitutional rights can be asserted or waived. People v. Lindsey, 201 Ill. 2d 45,

56 (2002). With respect to the pretrial phases, “the test [for a critical stage] utilized

by the Court has called for examination of the event in order to determine whether

the accused required aid in coping with legal problems or assistance in meeting his

adversary.” United States v. Ash, 413 U.S. 300, 313 (1973). In this case, it is clear

that Ratliff required the aid of counsel during the critical stages of the proceedings.

Instead, he selected a jury on November 18, 2019, without counsel; entered a guilty

plea on November 19, 2019, without counsel; and was sentenced to 15 years in the

penitentiary on January 30, 2020, without counsel. After the circuit court failed to

admonish Ratliff pursuant to Rule 401(a) and accepted his invalid waiver of

counsel, Ratliff filed a series of frivolous motions without counsel. Thereafter,

Ratliff wrote a letter dated November 22, 2019, stating that he did not understand

the November 19, 2019, blind plea—a peril that could have been averted had Ratliff

been properly admonished about his right to counsel pursuant to Rule 401(a) on

July 11, 2019, or received the benefit of counsel on November 19, 2019, at the time

of the blind plea.

¶ 122 I would find that Ratliff’s unknowing, unintelligent, and uncounseled blind

guilty plea is akin to an uncounseled felony conviction after a trial and is

unconstitutionally invalid. See Gideon v. Wainwright, 372 U.S. 335 (1963)

(holding that all uncounseled felony convictions are constitutionally invalid). In

Gideon, the United States Supreme Court reasoned:

“ ‘The right to be heard would be, in many cases, of little avail if it did not

comprehend the right to be heard by counsel. Even the intelligent and educated

layman has small and sometimes no skill in the science of law. If charged with

crime, he is incapable, generally, of determining for himself whether the

indictment is good or bad. He is unfamiliar with the rules of evidence. Left

without the aid of counsel he may be put on trial without a proper charge, and

convicted upon incompetent evidence, or evidence irrelevant to the issue or

otherwise inadmissible. He lacks both the skill and knowledge adequately to

prepare his defense, even though he have a perfect one. He requires the guiding

- 35 -

hand of counsel at every step in the proceedings against him. Without it, though

he be not guilty, he faces the danger of conviction because he does not know

how to establish his innocence.’ ” Id. at 344-45 (quoting Powell v. Alabama,

287 U.S. 45, 68-69 (1932).

The perils of an uncounseled blind plea of guilty, entered into unknowingly and

unintelligently, are no less daunting than the perils of an uncounseled conviction

after a trial—both defendants are stripped of their constitutional right to counsel,

causing them to face the “danger of conviction because [they do] not know how to

establish [their] innocence.” Id. at 345 (quoting Powell, 287 U.S. at 69).

¶ 123 While I recognize that adherence to Rule 604(d) has been held by this court to

be a condition precedent to the appeal of a guilty plea (People v. Wilk, 124 Ill. 2d

93, 107 (1988) (“a Rule 604(d) motion is a condition precedent to the appeal of a

plea of guilty”)), we must apply the rule only to valid guilty pleas. Ratliff was not

required to adhere to Rule 604(d) in this case because unrebutted evidence in the

record supports the conclusion that he entered his guilty plea unknowingly and

involuntarily. See McCarthy v. United States, 394 U.S. 459, 466 (1969) (where the

court reasoned that “because a guilty plea is an admission of all the elements of a

formal criminal charge, it cannot be truly voluntary unless the defendant possesses

an understanding of the law in relation to the facts” and “if a defendant’s guilty plea

is not equally voluntary and knowing, it has been obtained in violation of due

process and is therefore void”); State v. Torres, 438 A.2d 46, 51 (Conn. 1980 (“A

motion to withdraw a guilty plea which is filed before the imposition of sentence

and which raises an issue regarding the voluntariness of the plea strikes at the heart

of due process.”).

¶ 124 I maintain that Ratliff’s November 22, 2019, letter in which he stated that he

did not understand the guilty plea proceedings, coupled with the evidence of his

limited education (ninth grade), his history of drug abuse, his mental health

disorders (namely bipolar disorder, anxiety-depression with suicidal tendencies,

hearing voices, and “incompetency”), and his use of prescription psychotropic

medications to treat the disorders, supports the conclusion that Ratliff did not enter

into the uncounseled blind guilty plea knowingly, intelligently, and voluntarily. On

November 22, 2019, when the court became aware that Ratliff claimed he did not

understand the plea—months before sentencing—the court had an obligation to

- 36 -

hold an evidentiary hearing before sentencing on January 30, 2020, to ascertain

whether Ratliff understood the blind plea. See Brown, 924 N.E.2d at 783-84

(reasoning that “[w]here, however, the record raises a legitimate question as to the

voluntariness of the plea, an evidentiary hearing is required”). In this case, no

further action was taken.

¶ 125 Additionally, I note that the majority of the cases relied upon by the majority

assert that a voluntary plea of guilty waives all claims of error that are not

jurisdictional, but these cases are factually distinguishable from this case. See supra

¶¶ 21-22. Most notably, the defendants in those cases, unlike Ratliff who was

uncounseled, were represented by counsel at the time they entered a guilty plea.

See People v. Jones, 2021 IL 126432, ¶ 6 (where, after the defendant entered a

guilty plea, he filed a pro se postconviction petition arguing, inter alia, that his

defense counsel was ineffective); People v. Sophanavong, 2020 IL 124337, ¶ 6

(where, at the plea hearing, defense counsel asked that the record reflect that the

agreed-upon terms were against counsel’s advice, but the defendant insisted on the

accepted terms of the plea); People v. Townsell, 209 Ill. 2d 543 (2004) (where

defendant filed a pro se motion to withdraw his guilty plea, alleging that his

attorney coerced him into pleading guilty); see People v. Brown, 41 Ill. 2d 503, 505

(1969) (where defendant alleged that he pleaded guilty upon the advice of his

attorneys); People v. Dennis, 34 Ill. 2d 219, 221 (1966) (where transcript of the

proceedings at the time of the guilty plea reveal that the defendant stated that he

had consulted with his attorney about entering a plea of guilty); see also People v.

Smith, 23 Ill. 2d 512, 514 (1961) (where the transcript of the trial proceedings

attached to the defendant’s postconviction petition established that defendant’s

constitutional rights were not denied, as defendant was shown in open court, while

represented by counsel, changing his plea from not guilty to guilty and that the trial

judge explained the effects of his plea to defendant).

¶ 126 In People v. Del Vecchio, 105 Ill. 2d 414, 433 (1985), another case relied on by

the majority, this court found that the defendant waived the issue of whether the

circuit court erred in admitting evidence, at his sentencing hearing, of a guilty plea

in a prior murder trial. Ratliff’s case does not involve a guilty plea that Ratliff

entered into during a previous trial.

- 37 -

¶ 127 Similarly, in People v. Peeples, 155 Ill. 2d 422, 491 (1993), this court held that

the defendant waived review of the admissibility of his confession in a previous

case because of his guilty plea. Like Del Vecchio, the guilty plea entered in Peeples

was not for the crimes that formed the basis of the present litigation against Peeples.

However, the uncounseled blind guilty plea that Ratliff entered into in this case was

accepted after the circuit court failed to explain to Ratliff his right to counsel in

accord with Rule 401(a).

¶ 128 Therefore, because the record establishes that Ratliff’s uncounseled guilty plea

was entered into unknowingly and unintelligently, the circuit court’s acceptance of

the uncounseled plea violated his constitutional rights and was void. McCarthy, 394

U.S. at 466. Finally, the court’s acceptance of the plea was reversible error, and I

would vacate Ratliff’s guilty plea and remand the cause to the circuit court for a

new trial. See Brady, 397 U.S. at 748; Rossillo, 853 F.2d at 1067.

¶ 129 C. Structural Error

¶ 130 The majority concedes that the circuit court did not substantially comply with

Rule 401(a) but holds that the circuit court’s failure to admonish Ratliff pursuant to

Rule 401(a) did not amount to a structural error. Supra ¶ 28. The Supreme Court

has held that where a court denies a defendant his right to counsel it amounts to a

structural error. See United States v. Gonzalez-Lopez, 548 U.S. 140, 149 (2006)

(“Such [structural] errors include denial of counsel ***.” (citing Gideon, 372 U.S.

335); United States v. Allen, 895 F.2d 1577, 1580 (10th Cir. 1990) (“Acceptance of

an invalid waiver in violation of a defendant’s Sixth Amendment rights necessarily

leaves him entirely without the assistance of counsel at trial.” (Internal quotation

marks omitted.)). In Gonzalez-Lopez, 548 U.S. at 150, the United States Supreme

Court held that the “erroneous deprivation of the right to counsel of choice, ‘with

consequences that are necessarily unquantifiable and indeterminate,

unquestionably qualifies as “structural error.” ’ ” (quoting Sullivan v. Louisiana,

508 U.S. 275, 282 (1993)).

¶ 131 I would find that the circuit court deprived Ratliff of counsel by failing to

admonish Ratliff about his right to counsel pursuant to Rule 401(a), thereby causing

Ratliff to be left without counsel at critical stages of the criminal proceedings:

during the jury selection proceedings, during the guilty plea proceedings, and

- 38 -

during the sentencing proceedings. These deprivations of counsel constitute

structural error. Because we cannot measure the effect Ratliff’s lack of counsel had

on these proceedings, the circuit court’s deprivations of counsel were not trial errors

but structural errors.

¶ 132 I find our decision in People v. Campbell, 224 Ill. 2d 80, 84 (2006), instructive

and the Montana Supreme Court’s decision in Halley v. State, 2008 MT 193, ¶ 23,

344 Mont. 37, 186 P.3d 859, persuasive on this matter. In Campbell, this court held

that there was no compliance with Rule 401(a), substantial or otherwise. Campbell,

224 Ill. 2d. at 84. The trial court allowed the defendant to proceed pro se without

making any attempt to inform him of the nature of the charges, the range of possible

penalties, or his right to counsel. Id. We concluded that, because there was no

compliance with Rule 401(a), the defendant’s waiver of counsel was invalid and

his conviction could not stand. Id. at 85.

¶ 133 In this case, on April 24, 2019, at his arraignment, Ratliff was admonished of

the minimum and maximum sentence he could face if convicted of robbery, that he

had a right to an attorney, and that one would be appointed for him, months before

he expressed a desire to waive his right to counsel. On July 11, 2019, months after

his arraignment when he first expressed his desire to waive counsel, he was advised

on the perils of proceeding without an attorney but was not informed, as required

by Rule 401(a), of the charge against him, of the minimum and maximum

sentencing range, and that he was entitled to counsel and the appointment of

counsel if he was indigent. See Ill. S. Ct. R. 401(a) (eff. July 1, 1984).

¶ 134 Although attempts were made to admonish Ratliff, the first attempt was made

during his April 24, 2019, arraignment—several months before he expressed his

desire to proceed pro se. The second attempt was made on July 11, 2019, after he

expressed a desire to proceed pro se, but the court’s admonishments failed to satisfy

the requirements of Rule 401(a) by failing to (1) inform him of the charge against

him, (2) the minimum and maximum sentencing range, and (3) that he was entitled

to counsel and, if indigent, the appointment of counsel.

¶ 135 Requiring Ratliff to remember admonishments he was given on April 24, 2019,

several months before he first expressed a desire on July 11, 2019, to waive his

right to counsel, can hardly be considered substantial compliance with Rule 401(a),

and it calls into question whether Ratliff knowingly and intelligently waived his

- 39 -

right to counsel. Much of the evidence concerning the validity of the guilty plea

also supports a finding that Ratliff did not validly waive his right to counsel. Ratliff

has only a ninth-grade education, a history of alcohol and drug abuse, a history of

“memory loss or blackouts,” and a need for prescription psychotropic medications.

This, coupled with his assertion that he felt “forced” to proceed pro se because his

counsel “threatened him” with a 22-year sentence as well as the litany of

unsuccessful, frivolous motions he filed throughout the pretrial and postplea

proceedings, demonstrates Ratliff’s confusion about whether he should have

proceeded pro se or with counsel and casts great doubt on whether Ratliff’s waiver

of his right to counsel was knowing and intelligent. Admonishing Ratliff, with his

limited education and drug and alcohol addiction, months before his actual request

to proceed pro se, is tantamount to no admonishment at all, especially when the

subsequent admonishments did not comply with Rule 401(a) and Ratliff’s

demonstrated behavior suggesting confusion. It should be noted that Ratliff

selected a jury on November 18, 2019, he pled guilty one day later on November

19, 2019, and three days later, he told the court he did not understand what he was

doing when he entered the blind guilty plea. Based on the circumstances of this

case, I cannot find that Ratliff knowingly and intelligently waived counsel or that

the admonishments, which did not provide all the information prescribed in Rule

401(a), did not prejudice his rights. Therefore, I would find that the circuit court

not only failed to substantially comply with Rule 401(a) but it failed to comply at

all at the time Ratliff expressed a desire to waive counsel on July 11, 2019.

¶ 136 In Halley, the Montana Supreme Court found that the circuit court erred by

allowing the defendant to proceed pro se without making an inquiry into whether

the defendant was waiving his right to counsel knowingly and voluntarily. Halley,

2008 MT 193, ¶ 21. The Halley court further held that, because the defendant

entered guilty pleas without a valid waiver of counsel, the guilty pleas were invalid

because he was “deprived of his constitutional right to counsel during critical stages

of the criminal proceeding.” Id. ¶¶ 22-23.

¶ 137 This is precisely what occurred in this case. The circuit court accepted Ratliff’s

invalid waiver of counsel when it accepted his waiver without first admonishing

him—at the time he first expressed a desire to waive counsel—pursuant to Rule

401(a) to ensure that his waiver was knowingly and intelligently entered. As a result

of the circuit court’s acceptance of Ratliff’s invalid waiver of counsel, Ratliff was

- 40 -

left without an attorney at the guilty plea stage and entered a blind guilty plea

without a valid waiver of counsel. Consequently, Ratliff’s blind guilty plea was

also invalid because he was “deprived of his constitutional right to counsel during

critical stages of the criminal proceeding.” See id. ¶ 22. This denial of Ratliff’s

constitutional right to counsel is a structural error. See Gonzalez-Lopez, 548 U.S.

at 148-49.

¶ 138 Finally, the majority asserts that the test we employed in People v. Moon, 2022

IL 125959, ¶ 30, for analyzing structural error under the second-prong plain error

doctrine is to “ ‘look to the type of errors that the United States Supreme Court has

identified as structural to determine whether the error being considered is

comparable.’ ” Supra ¶ 39 (quoting Moon, 2022 IL 125959, ¶ 30). Among the

structural errors identified by the United States Supreme Court is the denial of

counsel. See Gonzalez-Lopez, 548 U.S. at 149 (“Such [structural] errors include

denial of counsel ***.” (citing Gideon, 372 U.S. 335). I can think of no more

egregious structural error than depriving Ratliff of counsel and accepting his

uncounseled blind guilty plea. See Allen, 895 F.2d at 1580 (“Acceptance of an

invalid waiver in violation of a defendant’s Sixth Amendment rights necessarily

leaves him entirely without the assistance of counsel at trial.” (Internal quotation

marks omitted.)); Gonzalez-Lopez, 548 U.S. at 149. It would be a miscarriage of

justice to hold that Ratliff waived his constitutional right to counsel when he was

not properly informed that he had the right, while excusing the circuit court’s failure

to meet its burden of ensuring Ratliff’s fundamental right to counsel was preserved

at every critical stage, including at the guilty-plea stage. Brown, 2017 IL 121681,

¶ 25; Spano, 360 U.S. at 321.

¶ 139 D. Supreme Court Rule Amendments

¶ 140 This case presents an opportunity for this court to review the rules and the

procedures our circuit courts follow when providing admonishments and when

accepting guilty pleas. Such a review is important because “[p]leas account for

nearly 95% of all criminal convictions.” Padilla v. Kentucky, 559 U.S. 356, 372

(2010); see Note, Stephanie Stern, Regulating the New Gold Standard of Criminal

Justice: Confronting the Lack of Record-Keeping in the American Criminal Justice

System, 52 Harv. J. on Legis. 245, 245 (2015) (97% of federal convictions and 94%

- 41 -

of state convictions stem from guilty pleas). Additionally, 75% of all defendants in

state penitentiaries, many of whom have pleaded guilty, have not finished high

school. See Caroline Wolf Harlow, Bureau of Justice Statistics, Education and

Correctional Populations 3 (2003), https://bjs.ojp.gov/content/pub/pdf/ecp.pdf

[https://perma.cc/N6NA-S8PN]. Ratliff is included within this class of state

defendants because his pretrial sentence investigation (PSI) revealed that he had

not graduated from high school and he had not obtained a GED. Therefore, the

question this court must address is whether the circuit court’s admonishment

procedure and its procedure for accepting guilty pleas from state defendants with

limited education provides them with due process and ensures their right to counsel.

The answer to this question is no.

¶ 141 I would resolve the due process problem by having circuit courts take the

following action: (1) all admonishments would be in writing, including those given

pursuant to Rules 401, 402, and 604, and (2) the defendants would be given a copy

of the admonishments and one or two hours to review the admonishments before

they are given by the circuit court. I would resolve the state defendants’ right-to-

counsel problem by amending the rules to provide that defendants shall be

represented by counsel during all admonishment and guilty plea proceedings. The

defendants would review the written admonishments with their attorneys, and those

defendants who are proceeding pro se would be provided with standby counsel to

answer any questions before the court gives admonishments or accepts a plea.

Finally, by providing each defendant with a copy of the admonishments and by

giving the defendants an opportunity to review the admonishments with counsel,

the defendants would be in a much better position to ask the judge questions at each

admonishment and plea hearing.

¶ 142 This case also teaches this court that we need a statewide public defender

program so a judge has a larger pool of attorneys to choose from when the defendant

and public defender have a conflict or when the defendant accuses his local public

defender of threatening him. Finally, while the above recommendations do not cure

all the due process and right-to-counsel problems, these recommendations will

assist defendants with limited education and resources to receive all the process

they are due.

- 42 -

¶ 143 E. Conclusion

¶ 144 In sum, I would hold that the appellate court had jurisdiction to review the guilty

plea and waiver of counsel orders, as both orders were steps in the procedural

progression leading to the order denying Ratliff’s motion to reconsider sentence.

Bingham, 2018 IL 122008, ¶ 16; In re Marriage of Arjmand, 2024 IL 129155, ¶ 27;

In re Marriage of O’Brien, 2011 IL 109039, ¶ 23; Rivera Construction Co., 863

F.2d at 298; Burtell, 76 Ill. 2d at 435-36; Elfman Motors, Inc., 567 F.2d at 1254;

Foman, 371 U.S. at 181. I would also hold that, because the record establishes that

Ratliff’s uncounseled guilty plea was entered into unknowingly and unintelligently,

the plea violated his constitutional rights and was void, obviating the need to file a

Rule 604(d) motion. See McCarthy, 394 U.S. at 466. Additionally, the court’s

acceptance of the uncounseled, unknowing, and unintelligent guilty plea constitutes

reversible error. See Brady, 397 U.S. at 748; Rossillo, 853 F.2d at 1067. Finally, I

would hold that the circuit court’s deprivation of counsel constituted structural

error. See Gonzalez-Lopez, 548 U.S. at 148-49. Accordingly, I would reverse the

judgment of the appellate court, vacate Ratliff’s conviction, and remand the cause

to the circuit court for a new trial.

- 43 -