2016 IL App (3d) 150090
Opinion filed April 5, 2016 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-15-0090 v. ) Circuit No. 12-CF-294 ) WILLIAM N. KIBBONS, ) Honorable ) Susan S. Tungate, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________
PRESIDING JUSTICE O’BRIEN delivered the judgment of the court, with opinion. Justices McDade and Schmidt concurred in the judgment and opinion. _____________________________________________________________________________
OPINION
¶1 The defendant, William Kibbons, pled guilty to one count of aggravated driving under
the influence (625 ILCS 5/11-501(d)(1)(C) (West 2012)) and was sentenced to eight years in
prison. The defendant appealed, challenging the denial of his motion to withdraw his guilty plea
and his sentence.
¶2 FACTS
¶3 The defendant was indicted for two counts of aggravated driving under the influence of
alcohol (DUI), resulting in great bodily harm (625 ILCS 5/11-501(d)(1)(C) (West 2012)), and one count of leaving the scene of an accident involving personal injury or death (625 ILCS 5/11-
401(a) (West 2012)), for an accident that occurred on June 4, 2012. The defendant entered a
plea, pleading guilty to count one (aggravated DUI), in exchange for an agreed sentencing cap
recommendation by the State of eight years. The State also agreed to nolle prosequi the other
two counts and dismiss charges in another case in exchange for the defendant’s guilty plea to
aggravated DUI. The trial court accepted the defendant’s guilty plea, ordered a presentence
investigation (PSI), and continued the matter for sentencing.
¶4 At the sentencing hearing, the assistant State’s Attorney moved to correct the PSI report
because it failed to reflect the defendant’s court supervision for a Will County DUI in 1997 that
was listed on the driver abstract attached to the PSI. The State argued that the current offense
was the defendant’s second DUI and that this one involved great bodily harm. It asked for the
agreed upon cap of eight years. The defense requested that the defendant be sentenced to
probation and time served. In sentencing the defendant to eight years, the trial court noted that
the defendant already had his second chance after his first DUI. It also noted the severity of the
bodily injuries and its effect on the victim of the accident. The court noted that it would have
sentenced the defendant to 10 years if not for the cap.
¶5 The trial court advised the defendant of his right to appeal, admonishing him in
accordance with Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001). Relevant to this appeal,
the trial court admonished the defendant that: “Prior to taking an appeal you would have to file
in the trial court within 30 days of today’s date, which is the date the sentence was imposed, a
written motion asking to have the trial court reconsider the sentence or to have the judgment
vacated and for leave to withdraw you plea of guilty.” After the defendant indicated that he did
not understand, the trial court further explained:
2 “There’s two things that [happen]. One: you can file a motion to reconsider the
sentence. [Two:] You can have a motion to vacate the whole thing. Okay. You have 30
days from today’s date to file that.”
¶6 Within 30 days of sentencing, on August 13, 2013, defense counsel filed a motion to
reconsider the defendant’s sentence, arguing that the trial court failed to give sufficient weight to
the mitigation evidence and the 8-year sentence was excessive. That motion was denied on
October 18, 2013. Thereafter, the defendant retained new counsel. During a conference with the
new counsel, it was discovered that Jamie Boyd, the Kankakee County State’s Attorney and the
office prosecuting the defendant, had represented the defendant in his Will County DUI in 1997.
¶7 Based on that information, on November 15, 2013, the defendant filed a motion to
withdraw his plea or, alternatively, to reconsider his sentence and for extended time to file an
appeal. The defense argued a per se conflict of interest on the part of the State’s Attorney, a
violation of the Illinois Rules of Professional Conduct, and violations of the Illinois constitution.
If the court found no per se conflict, the defendant requested an evidentiary hearing on actual
conflict. After a hearing, the trial court entered a written decision on April 24, 2014, denying the
defendant’s motion, finding no per se conflict but allowing the defendant time to file pleadings
regarding actual conflict. On May 22, 2014, the defendant filed his motion to withdraw his
guilty plea based upon actual prejudice. That motion, which was amended on November 13,
2014, contained a request for discovery into actual prejudice. The State filed a motion to strike
the motion or, alternatively, to strike the discovery request. The trial court found that the motion
did not make sufficient allegations of actual prejudice and granted the State’s motion to strike.
That decision was entered on January 16, 2015. On February 6, 2015, the defendant filed his
notice of appeal.
3 ¶8 ANALYSIS
¶9 The State argues that the appeal was not timely because the defendant did not file a notice
of appeal within 30 days of the denial of his motion to reconsider his sentence. Instead, within
30 days of the denial of that motion, new defense counsel filed a motion to withdraw the guilty
plea or alternatively to reconsider sentence and to extend time for filing the notice of appeal.
That motion was denied on April 24, 2014, but the defendant was also given leave to file
pleadings addressing an actual conflict. That pleading was filed on May 22, 2014, and that
motion was denied on January 16, 2015. Notice of appeal was filed on February 6, 2015.
¶ 10 Illinois Supreme Court Rule 606 (eff. Feb. 6, 2013) establishes the procedure and
timeline for perfecting an appeal. Rule 606(b) provides that “[e]xcept as provided in Rule
604(d), the notice of appeal must be filed with the clerk of the circuit court within 30 days after
the entry of the final judgment appealed from or if a motion directed against the judgment is
timely filed, within 30 days after the entry of the order disposing of the motion.” Ill. S. Ct. R.
606(b) (eff. Feb. 6, 2013). It is undisputed that the notice of appeal was not filed within 30 days
of the entry of the final judgment, which was the sentencing in this criminal case. See People v.
Baldwin, 199 Ill. 2d 1, 5 (2002) (“Absent a sentence, a conviction is not a final and appealable
judgment.”).
¶ 11 Thus, under Rule 606(b), it is necessary to determine if there was a timely motion against
the judgment. Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013) provides that when a
defendant wishes to appeal from a judgment entered upon a guilty plea, he must first file a
postplea motion with the trial court, within 30 days of sentencing. People v. Gougisha, 347 Ill.
App. 3d 158, 160-61 (2004).
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2016 IL App (3d) 150090
Opinion filed April 5, 2016 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-15-0090 v. ) Circuit No. 12-CF-294 ) WILLIAM N. KIBBONS, ) Honorable ) Susan S. Tungate, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________
PRESIDING JUSTICE O’BRIEN delivered the judgment of the court, with opinion. Justices McDade and Schmidt concurred in the judgment and opinion. _____________________________________________________________________________
OPINION
¶1 The defendant, William Kibbons, pled guilty to one count of aggravated driving under
the influence (625 ILCS 5/11-501(d)(1)(C) (West 2012)) and was sentenced to eight years in
prison. The defendant appealed, challenging the denial of his motion to withdraw his guilty plea
and his sentence.
¶2 FACTS
¶3 The defendant was indicted for two counts of aggravated driving under the influence of
alcohol (DUI), resulting in great bodily harm (625 ILCS 5/11-501(d)(1)(C) (West 2012)), and one count of leaving the scene of an accident involving personal injury or death (625 ILCS 5/11-
401(a) (West 2012)), for an accident that occurred on June 4, 2012. The defendant entered a
plea, pleading guilty to count one (aggravated DUI), in exchange for an agreed sentencing cap
recommendation by the State of eight years. The State also agreed to nolle prosequi the other
two counts and dismiss charges in another case in exchange for the defendant’s guilty plea to
aggravated DUI. The trial court accepted the defendant’s guilty plea, ordered a presentence
investigation (PSI), and continued the matter for sentencing.
¶4 At the sentencing hearing, the assistant State’s Attorney moved to correct the PSI report
because it failed to reflect the defendant’s court supervision for a Will County DUI in 1997 that
was listed on the driver abstract attached to the PSI. The State argued that the current offense
was the defendant’s second DUI and that this one involved great bodily harm. It asked for the
agreed upon cap of eight years. The defense requested that the defendant be sentenced to
probation and time served. In sentencing the defendant to eight years, the trial court noted that
the defendant already had his second chance after his first DUI. It also noted the severity of the
bodily injuries and its effect on the victim of the accident. The court noted that it would have
sentenced the defendant to 10 years if not for the cap.
¶5 The trial court advised the defendant of his right to appeal, admonishing him in
accordance with Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001). Relevant to this appeal,
the trial court admonished the defendant that: “Prior to taking an appeal you would have to file
in the trial court within 30 days of today’s date, which is the date the sentence was imposed, a
written motion asking to have the trial court reconsider the sentence or to have the judgment
vacated and for leave to withdraw you plea of guilty.” After the defendant indicated that he did
not understand, the trial court further explained:
2 “There’s two things that [happen]. One: you can file a motion to reconsider the
sentence. [Two:] You can have a motion to vacate the whole thing. Okay. You have 30
days from today’s date to file that.”
¶6 Within 30 days of sentencing, on August 13, 2013, defense counsel filed a motion to
reconsider the defendant’s sentence, arguing that the trial court failed to give sufficient weight to
the mitigation evidence and the 8-year sentence was excessive. That motion was denied on
October 18, 2013. Thereafter, the defendant retained new counsel. During a conference with the
new counsel, it was discovered that Jamie Boyd, the Kankakee County State’s Attorney and the
office prosecuting the defendant, had represented the defendant in his Will County DUI in 1997.
¶7 Based on that information, on November 15, 2013, the defendant filed a motion to
withdraw his plea or, alternatively, to reconsider his sentence and for extended time to file an
appeal. The defense argued a per se conflict of interest on the part of the State’s Attorney, a
violation of the Illinois Rules of Professional Conduct, and violations of the Illinois constitution.
If the court found no per se conflict, the defendant requested an evidentiary hearing on actual
conflict. After a hearing, the trial court entered a written decision on April 24, 2014, denying the
defendant’s motion, finding no per se conflict but allowing the defendant time to file pleadings
regarding actual conflict. On May 22, 2014, the defendant filed his motion to withdraw his
guilty plea based upon actual prejudice. That motion, which was amended on November 13,
2014, contained a request for discovery into actual prejudice. The State filed a motion to strike
the motion or, alternatively, to strike the discovery request. The trial court found that the motion
did not make sufficient allegations of actual prejudice and granted the State’s motion to strike.
That decision was entered on January 16, 2015. On February 6, 2015, the defendant filed his
notice of appeal.
3 ¶8 ANALYSIS
¶9 The State argues that the appeal was not timely because the defendant did not file a notice
of appeal within 30 days of the denial of his motion to reconsider his sentence. Instead, within
30 days of the denial of that motion, new defense counsel filed a motion to withdraw the guilty
plea or alternatively to reconsider sentence and to extend time for filing the notice of appeal.
That motion was denied on April 24, 2014, but the defendant was also given leave to file
pleadings addressing an actual conflict. That pleading was filed on May 22, 2014, and that
motion was denied on January 16, 2015. Notice of appeal was filed on February 6, 2015.
¶ 10 Illinois Supreme Court Rule 606 (eff. Feb. 6, 2013) establishes the procedure and
timeline for perfecting an appeal. Rule 606(b) provides that “[e]xcept as provided in Rule
604(d), the notice of appeal must be filed with the clerk of the circuit court within 30 days after
the entry of the final judgment appealed from or if a motion directed against the judgment is
timely filed, within 30 days after the entry of the order disposing of the motion.” Ill. S. Ct. R.
606(b) (eff. Feb. 6, 2013). It is undisputed that the notice of appeal was not filed within 30 days
of the entry of the final judgment, which was the sentencing in this criminal case. See People v.
Baldwin, 199 Ill. 2d 1, 5 (2002) (“Absent a sentence, a conviction is not a final and appealable
judgment.”).
¶ 11 Thus, under Rule 606(b), it is necessary to determine if there was a timely motion against
the judgment. Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013) provides that when a
defendant wishes to appeal from a judgment entered upon a guilty plea, he must first file a
postplea motion with the trial court, within 30 days of sentencing. People v. Gougisha, 347 Ill.
App. 3d 158, 160-61 (2004).
4 ¶ 12 In this case, the State agreed to a sentencing cap and dismissed charges based upon the
defendant’s plea, making it a negotiated plea. See Gougisha, 347 Ill. App. 3d at 161 (“A plea
agreement that precludes the State from arguing for a sentence from the full range of available
penalties is a negotiated, not an open, plea.”). Thus, pursuant to Rule 604(d), the defendant
could not take an appeal from his negotiated plea unless he first filed a motion to withdraw the
plea of guilty and vacate the judgment. However, the motion that the defendant filed within 30
days of sentencing was a motion to reconsider sentence, rather than a motion to withdraw his
guilty plea. Even though the defendant filed the wrong motion under Rule 604(d), it was a
timely motion directed against the judgment and tolled the time for appeal under Rule 606(b).
See People v. Green, 375 Ill. App. 3d 1049, 1050 (2007) (motion to reconsider sentence was the
wrong motion under Rule 604(d) but did serve as a timely motion directed against the judgment
and tolled time for appeal).
¶ 13 The defendant, however, did not file a notice of appeal within 30 days of the denial of
that motion. Instead, he filed what was essentially the correct motion under Rule 604(d), the
motion to withdraw his plea of guilty. While that motion was filed while the trial court still had
jurisdiction, it was not a timely motion under Rule 606(b), and we have no discretion to forgive
the defendant’s failure to comply with the rule. See People v. Salem, 2016 IL 118693, ¶ 19
(motion for a new trial, filed within 30 days of sentencing but not within 30 days of the verdict,
was not a timely motion to extend the time to appeal under Rule 606(b); to hold otherwise would
render the term “timely” in 606(b) meaningless). Since the notice of appeal was untimely, we
lack jurisdiction over the appeal.
¶ 14 CONCLUSION
¶ 15 Appeal dismissed.
5 ¶ 16 Dismissed.