People v. Martin

2021 IL App (2d) 190192-U

Procedural entryThis page is a short order in People v. Martin. Read the opinion of the Court — 2018 IL App (1st) 152249 →

Appellate Court of Illinois·Decided March 30, 2021·No. 2-19-0192·Unpublished

Opinion

2021 IL App (2d) 190192-U No. 2-19-0192 Order filed March 30, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Stephenson County. ) Plaintiff-Appellee, ) ) v. ) No. 18-CF-221 ) LARRY J. MARTIN JR. ) Honorable ) Michael P. Bald, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE BRIDGES delivered the judgment of the court. Justices Hutchinson and Brennan concurred in the judgment.

ORDER

¶1 Held: The record did not establish compliance with Rule 604(d)’s requirement that defendant, who was indigent, be provided free of charge a transcript of the guilty plea proceeding in advance of the hearing on his motion to reconsider his sentence. Therefore, the trial court’s denial of defendant’s motion to reconsider his sentence is vacated and the cause remanded for compliance with Rule 604(d).

¶2 Defendant, Larry J. Martin Jr., entered a nonnegotiated plea of guilty to aggravated battery

(720 ILCS 5/12-3.05(a)(1) (West 2018)) and unlawful restraint (720 ILCS 5/10-3(a) (West 2018)).

He was sentenced to concurrent prison terms of six years for aggravated battery and four years for

unlawful restraint. This appeal arises from the denial of his motion, pursuant to Illinois Supreme 2021 IL App (2d) 190192-U

Court Rule 604(d) (eff. July 1, 2017), to reconsider his sentence. Defendant argues that the case

must be remanded for proceedings in compliance with Rule 604(d) because he was not provided

with transcripts of the guilty plea hearing and the sentencing hearing before the hearing on his

motion to reconsider. We conclude that the record does not show compliance with Rule 604(d)

and that the case must be remanded for proceedings in compliance with that rule.

¶3 I. BACKGROUND

¶4 Defendant was initially charged by complaint and later by information. At defendant’s

arraignment on the complaint, which took place on August 16, 2018, he indicated that he was

unemployed and without income. The trial court appointed the public defender to represent him.

Defendant entered his plea on October 23, 2018, and his sentencing hearing took place on several

dates ending on January 28, 2019, when the trial court imposed sentence. On February 4, 2019,

defense counsel filed the motion to reconsider. At a hearing on February 6, 2019, the public

defender advised the trial court that defendant wished to proceed pro se. The trial court granted

defendant leave to do so and discharged the public defender. The trial court heard and denied the

motion to reconsider on February 11, 2019, and defendant filed a timely notice of appeal.

¶5 The appellate defender was appointed to represent defendant on appeal. Appellate counsel

later moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and People v.

Jones, 38 Ill. 2d 384 (1967). We denied the motion without prejudice and appellate counsel opted

to file a brief on the merits rather than a new motion to withdraw.

¶6 II. ANALYSIS

¶7 Rule 604(d) governs appeals following the entry of guilty pleas. Rule 604(d) provides, in

pertinent part:

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“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.

***

*** The motion shall be presented promptly to the trial judge by whom the

defendant was sentenced ***. The trial court shall then determine whether the defendant is

represented by counsel, and if the defendant is indigent and desires counsel, the trial court

shall appoint counsel.

If the defendant is indigent, the trial court shall order a copy of the transcript as

provided in Rule 402(e) be furnished the defendant without cost.” (Emphasis added.) Ill. S.

Ct. R. 604(d) (eff. July 1, 2017).

Illinois Supreme Court Rule 402(e) (eff. July 1, 2012) requires guilty plea proceedings to be

transcribed and made part of the common law record.

¶8 There must be strict compliance with Rule 604(d). The consequences for failure to strictly

comply depend on which provision of the rule is infringed. If the defendant fails to file the requisite

motion, the appeal must be dismissed. People v. Wilk, 124 Ill. 2d 93, 107 (1988). For the failure to

strictly comply with any other provision of Rule 604(d), “the remedy *** is a remand to the circuit

court for the filing of a new motion to withdraw guilty plea or to reconsider sentence and a new

hearing on the motion.” People v. Janes, 158 Ill. 2d 27, 33 (1994).

¶9 Defendant contends that the trial court failed to comply with the requirement that it order

a copy of the transcripts of the guilty plea hearing and sentencing hearing be furnished to him free

of cost. In support of his argument, defendant contends that the required transcripts were not

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prepared until after the hearing on the motion to reconsider. As evidence of when the transcripts

were prepared, defendant relies on the dates that they were certified. Citing People v. Little, 2011

IL App (4th) 090787, the State responds that the date of certification is not necessarily the date of

preparation.

¶ 10 As background to our discussion of Little, we note that, in addition to the requirements

described above, Rule 604(d) requires counsel representing a criminal defendant in a postplea

proceeding to certify, among other things, that he or she “examined the trial court file and both the

report of proceedings of the plea of guilty and the report of proceedings in the sentencing hearing.”

Ill. S. Ct. R. 604(d) (eff. July 1, 2017). In Little, the defendant’s attorney filed a proper certificate,

but the defendant claimed that the record refuted the certificate because the court reporter’s

certification of the transcript of the guilty plea proceedings was dated after the hearing on the

postplea motion. The Little court rejected the argument, reasoning that “the date the court reporter

certifies a report of proceedings pursuant to Rule 608(b) has nothing to do with the date the

transcript of proceedings was prepared.” (Emphases in original.) Little, 2011 IL App (4th) 090787,

¶ 18.

¶ 11 Little simply stands for the proposition that the date of certification of the relevant

transcript may not be relied upon to refute a proper Rule 604(d) certificate. Unlike in Little,

however, here defendant proceeded pro se. Consequently, no certificate of counsel was required

(see People v. Denson, 243 Ill. App. 3d 55, 59 n.1 (1993)), and we cannot rely on such a certificate

to establish that the transcript of the guilty plea proceeding was prepared and was available to

defendant before the hearing.

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