People v. Little

786 N.E.2d 636, 337 Ill. App. 3d 619, 272 Ill. Dec. 97, 2003 Ill. App. LEXIS 331
Appellate Court of Illinois·Decided March 20, 2003·No. 4-01-0386 Rel·Published·Cited by 9 cases

Opinions

JUSTICE KNECHT

delivered the opinion of the court:

Defendant, Rodney Little, appeals from the trial court’s denial of his motion to reduce sentence following a guilty plea contending the proceedings surrounding the filing and hearing of the motion were pro forma only and, therefore, violated Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)). We reverse and remand with directions.

In February 2001, defendant pleaded guilty to one count of predatory criminal sexual assault of a child, a violation of section 12— 14.1(a)(1) of the Criminal Code of 1961 (720 ILCS 5/12 — 14.1(a)(1) (West 2000)). On or about August 30, 2000, defendant, who was over 17 years of age, committed an act of sexual penetration of T.D.D., who was under 13 years of age, by placing his penis in her anus. At the time this occurred, the victim’s mother was picking up the victim’s older sister at work. Defendant was the father of the victim’s little sister and the victim had lived with defendant her entire life. She considered him to be a father to her, the only father she had ever known.

On April 6, 2001, the trial court sentenced defendant to 15 years’ imprisonment for predatory criminal sexual assault of a child. The court stated the sentence was necessary because the offense was incredibly serious, constituted a brutal act, and had a profound impact on both the victim and her family.

At the close of the sentencing hearing, defense counsel stated:

“Since we’re all here, Your Honor, this may expedite it. As I’m required by statute before he can take an appeal to file a motion to reconsider under the statute, Your Honor, I’ll file one Monday. I’m gonna be here, Your Honor, in this courtroom on April 25th at 10:45. This’ll be a five-minute motion, Your Honor. It is a four-minute motion, only requiring that time. There’ll be no argument.”

The motion to reduce sentence was filed on April 9, 2001, and stated in its entirety:

“Comes now defendant by his attorney [(defense counsel)] and moves for a reduction of his sentence pursuant to 730 ILCS 5/5— 8 — 1(c).”

At the hearing on the motion to reconsider sentence the following exchange occurred:

“[DEFENSE COUNSEL]: As you remember, we sent the [d]efendant to [prison]. This motion is here, your Honor, only for one reason, and that is, I must statutorily comply when there’s a plea, to move to reconsider. That’s a form argument only, your Honor. And that’s it. Thank you, your Honor.
THE COURT: [Defense counsel], do I need a [Rule] 604(d) certificate? This was a plea of guilty wasn’t it? I think I need a [Rule] 604(d) certificate.
[DEFENSE COUNSEL]: I think you do, Judge, and I’ll prepare one and have it on file.
THE COURT: I’ll rule as soon as you have that on file.”

On April 27, 2001, defense counsel filed a certificate pursuant to Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)). On April 30, 2001, the trial court denied defendant’s motion to reconsider sentence. This appeal followed.

Our supreme court, without exception, requires strict compliance with Rule 604(d). People v. Foster, 171 Ill. 2d 469, 474, 665 N.E.2d 823, 826 (1996). The rule requires more than the mere pro forma filing of a motion to reduce sentence. People v. Keele, 210 Ill. App. 3d 898, 902, 569 N.E.2d 301, 303 (1991).

Rule 604(d) requires, in pertinent part, that before an appeal may be taken from a judgment entered upon a plea of guilty, a defendant must file a motion to reconsider sentence within 30 days of the date on which the sentence is imposed if only the sentence is being challenged on appeal. The motion is required to be in writing and must state all the grounds upon which it is brought. A transcript of the hearing at which the guilty plea was entered is required to be prepared and furnished to the defendant at no cost if he is indigent. Defendant’s attorney must also file with the trial court a certificate stating the attorney has consulted with the defendant either by mail or in person to ascertain the defendant’s contentions of error in the sentence, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings. Finally, upon appeal, any issue not raised by the defendant in the motion to reconsider sentence shall be deemed waived, i.e., forfeited. 188 Ill. 2d R. 604(d).

We find defense counsel did not comply with Rule 604(d). Defense counsel filed a certificate pursuant to Rule 604(d) stating he consulted with defendant in person to ascertain his contentions of error in the sentence, examined the trial court file and report of proceedings of the plea of guilty, and made any amendments necessary for adequate presentation of any defects in those proceedings. The certificate was dated April 26, 2001, and filed with the trial court on April 27, 2001. A review of the record, however, indicates the transcript of the proceedings on the plea of guilty was both prepared and filed with the trial court on May 24, 2001, making it impossible for defense counsel to have reviewed the report of proceedings prior to filing his Rule 604(d) certificate.

In addition, the motion to reconsider sentence filed by defense counsel did not state any reasons to support his request for reduction of sentence. According to Rule 604(d), any issues not stated in the motion have been waived for purposes of appeal. Thus, while defense counsel stated he was filing the motion in order to preserve defendant’s appeal rights, he left defendant with no issues upon which to appeal. The mere act of filing a motion to reconsider sentence, a condition precedent to filing an appeal (see People v. Jackson, 239 Ill. App. 3d 165, 168, 606 N.E.2d 809, 811 (1992)), without including any grounds in support of the motion, cannot be considered strict compliance with Rule 604(d) because defendant is left with no appealable issues.

Therefore, in this case, counsel’s motion was not in strict compliance with Rule 604(d) and defendant received only pro forma representation on his motion to reconsider sentence, thus requiring reversal and remand in order to obtain proper compliance with Rule 604(d) and the representation necessary to preserve issues for appeal.

We note in this case, not only was the transcript of the guilty plea proceeding not transcribed or filed with the trial court until long after the hearing on the motion to reconsider sentence, but the transcript of the sentencing proceeding was not filed until after that hearing either. Therefore, defense counsel could not have reviewed it prior to the hearing on the motion to reconsider sentence. As we have previously stated in People v. Munetsi, 283 Ill. App. 3d 326, 669 N.E.2d 1258 (1996), overruled by People v.

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People v. Little, 786 N.E.2d 636, 337 Ill. App. 3d 619, 272 Ill. Dec. 97, 2003 Ill. App. LEXIS 331 (Ill. Ct. App. 2003).

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