People v. Morton , 404 Ill. App. 3d 294 ( 2010 )

NO. 5-08-0660
NOTICE
Decision filed 09/22/10. The text of
IN THE
this decision may be changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
Peti tion for Rehearing or th e
disposition of the same.
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Clinton County.
)
v. ) No. 06-CF-42
)
JAMES MORTON, JR., ) Honorable
) Dennis E. Middendorff,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE DONOVAN delivered the opinion of the court:
James Morton, Jr., defendant, pled guilty to predatory criminal sexual assault and was
sentenced by the circuit court of Clinton County to 24 years' imprisonment. Defendant filed
a motion to reduce his sentence, but counsel did not file a certificate of compliance with
Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)). The State agrees that a remand for the
filing of a Rule 604(d) certificate is required. The State also contends that defense counsel
does not necessarily have to file a new motion to reduce the sentence. We agree.
The question presented here arises from differing interpretations of the remand
language found in People v. Janes, 158 Ill. 2d 27, 630 N.E.2d 790 (1994). In Janes, the
defendant pled guilty to murder and was sentenced to death. The defendant filed a motion
to withdraw his guilty plea, but counsel did not file a Rule 604(d) certificate. The trial court
denied the defendant's motion. In reversing the circuit court, the supreme court stated as
follows:
"[T]he remedy for failure to strictly comply with each of the provisions of Rule
604(d) is a remand to the circuit court for the filing of a new motion to withdraw
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guilty plea or to reconsider sentence and a new hearing on the motion." Janes, 158
Ill. 2d at 33, 630 N.E.2d at 792.
The Janes court remanded the cause to the circuit court "to allow defendant to file a
new motion to withdraw his guilty plea and for a hearing on that motion in full compliance
with Rule 604(d)." Janes, 158 Ill. 2d at 35-36, 630 N.E.2d at 793-94.
In People v. Oliver, 276 Ill. App. 3d 929, 659 N.E.2d 435 (1995), the Second District
vacated the circuit court's denial of the defendant's motion to withdraw her guilty plea
because trial counsel had failed to file a Rule 604(d) certificate, and the court remanded the
cause for further proceedings. On remand, trial counsel filed the required certificate and
elected to stand on the original motion to withdraw the guilty plea. The State stipulated that
the testimony would be the same as at the prior hearing. The trial court again denied the
motion. On appeal, the defendant argued that the perfunctory proceedings which occurred
in the trial court after the remand did not comply with the appellate court's mandate to hold
a new hearing. The appellate court agreed, holding that Janes required both a new motion
to withdraw the guilty plea and a new hearing thereon. Oliver, 276 Ill. App. 3d at 932, 659
N.E.2d at 438. The Second District essentially reaffirmed this position in People v. Love,
385 Ill. App. 3d 736, 896 N.E.2d 1062 (2008), wherein it reversed the trial court's denial of
the defendant's motion to withdraw his guilty plea and remanded the cause "for defendant's
attorney to file a new motion under Rule 604(d) and otherwise to comply fully with the
requirements of that rule." Love, 385 Ill. App. 3d at 739, 896 N.E.2d at 1066.
The Fourth District in People v. Kerkering, 283 Ill. App. 3d 867, 671 N.E.2d 368
(1996), disagreed with the analysis in Oliver. The Fourth District first vacated the trial
court's order denying the defendant's motion to reconsider his sentence and remanded the
cause because trial counsel had failed to file a Rule 604(d) certificate. On remand, defense
counsel filed the certificate but did not file a new motion to withdraw the plea. Following
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a new hearing on the original motion to reconsider the sentence, the trial court again denied
the motion. Citing Oliver, the defendant argued on appeal that Janes required counsel to file
both a certificate and a new Rule 604(d) motion. The Fourth District, disagreeing with the
Second District's interpretation of Janes, rejected the defendant's argument and affirmed the
judgment of the trial court. The court noted that while in one part of the Janes opinion, the
supreme court used language suggesting that the filing of a new Rule 604(d) motion was
mandatory, the supreme court also used permissive language when it remanded the cause to
the circuit court " 'to allow defendant to file a new motion to withdraw his guilty plea.' "
(Emphasis in original.) Kerkering, 283 Ill. App. 3d at 872, 671 N.E.2d at 372 (quoting
Janes, 158 Ill. 2d at 36, 630 N.E.2d at 794). The Fourth District reaffirmed this position in
People v. Davis, 298 Ill. App. 3d 630, 699 N.E.2d 591 (1998).
We agree with the Fourth District's interpretation of Janes. As stated in Kerkering:
"We believe a reading of Janes that makes the filing of a new Rule 604(d)
motion permissive rather than mandatory is more logical and better suits the goal of
judicial economy. Therefore, we hold that when a case is remanded for the filing of
a Rule 604(d) certificate, the attorney need only file a new motion to reconsider
sentence or to withdraw guilty plea if he or she determines that such action is
'necessary for [the] adequate presentation of any defects' (145 Ill. 2d R. 604(d)) in the
guilty plea or sentencing proceedings. Thereafter, the trial court must conduct a new
hearing on the motion. In this case, defendant's trial attorney apparently did not
believe that any amendments were necessary. The trial court conducted a new
hearing. Accordingly, this case need not be remanded." Kerkering, 283 Ill. App. 3d
at 872, 671 N.E.2d at 372.
We also recognize that there are circumstances when the appellate court, after
reviewing the record, may decide that the filing of a new Rule 604(d) motion is required to
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adequately represent the defendant. See People v. Cloyd, 397 Ill. App. 3d 1084, 931 N.E.2d
261 (2010). This is not one of those instances. We, therefore, will leave it up to defense
counsel to determine whether a new motion to reduce the sentence should be filed to
adequately present defendant's objections to his sentence.
Accordingly, the judgment of the circuit court is reversed, and the cause is remanded
with directions that defendant be allowed to file a new motion to reconsider sentence, if he
so chooses, that a new hearing on the motion be held, and that strict compliance with Rule
604(d) in filing a certificate under the rule be followed.
Reversed; cause remanded with directions.
CHAPMAN and SPOMER, JJ., concur.
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NO. 5-08-0660
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Clinton County.
)
v. ) No. 06-CF-42
)
JAMES MORTON, JR., ) Honorable
) Dennis E. Middendorff,
Defendant-Appellant. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: September 22, 2010
___________________________________________________________________________________
Justices: Honorable James K. Donovan, J.
Honorable Melissa A. Chapman, J., and
Honorable Stephen L. Spomer, J.,
Concur
___________________________________________________________________________________
Attorneys Michael J. Pelletier, State Appellate Defender, Johannah B. W eber, Deputy Defender,
for Dan W. Evers, Assistant Appellate Defender, Office of the State Appellate Defender,
Appellant 117 N. Tenth Street, Suite 300, Mt. Vernon, IL 62864
___________________________________________________________________________________
Attorneys Hon. John Hudspeth, State's Attorney, Clinton County Courthouse, Carlyle, IL
for 62231, Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Kevin D.
Appellee Sweeney, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Fifth
District Office, 730 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL
62864
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