2022 IL App (1st) 200387-U
SIXTH DIVISION November 10, 2022
No. 1-20-0387
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 18 CR 5814 ) LEVELL MASON, ) The Honorable ) Mary Margaret Brosnahan, Defendant-Appellant. ) Judge, presiding.
JUSTICE TAILOR delivered the judgment of the court. Justices Walker and Oden Johnson concurred in the judgment.
ORDER
¶1 Held: We do not reach the merits of defendant’s appeal where the record does not establish that he filed his motion to withdraw his guilty plea within 30 days of the entry of his guilty plea. We retain jurisdiction and remand to the circuit court to determine when defendant mailed his motion and whether it was timely.
¶2 Defendant, Levell Mason, appeals from the circuit court’s order denying his motion to
withdraw his guilty plea and vacate his sentence. On appeal, he argues (1) the circuit court failed
to conduct an adequate Krankel inquiry into the pro se claims of ineffective assistance of counsel
he made during a hearing on his motion to withdraw his plea; (2) his counsel did not strictly comply
with Illinois Supreme Court Rule 604(d) because she did not amend the pro se motion to include No. 1-20-0387
various claims; and (3) his right to conflict-free counsel was violated where the same counsel
against whom Mason attempted to raise an ineffective assistance claim represented him during the
proceedings on his motion to withdraw his plea, and counsel did not withdraw when Mason raised
concerns about counsel’s representation.
¶3 We cannot reach the merits of Mason’s appeal because his original motion to withdraw his
guilty plea in the circuit court bears a file-stamp that, on its face, shows that his motion was
untimely, and there is nothing in the record demonstrating that Mason placed his motion in the
mail at a correctional facility within 30 days of his guilty plea. However, rather than dismiss
Mason’s appeal, we retain jurisdiction and remand to the circuit court for additional proceedings
consistent with this order.
¶4 I. BACKGROUND
¶5 Mason was charged with one count of burglary and one count of possession of burglary
tools. Mason entered a negotiated plea, pleading guilty to burglary in exchange for a six-year
prison sentence, which was the lowest available sentence because his criminal background
subjected him to mandatory Class X sentencing.
¶6 On July 26, 2018, the circuit court held a plea hearing. The circuit court advised Mason of
the nature of the offense, the applicable sentencing range, his right to a jury trial, the applicable
fines, and the mandatory supervised release (MSR) term he would have to serve upon release from
prison. The circuit court asked Mason if he was being coerced into pleading guilty, to which he
responded that he was “suffering.” Mason explained that he was “emotionally sick, I’m mentally
ill, bipolar. I’m ready to just get on, you know, find a better program for my life and just ready to
go.” He indicated he was receiving medication, specifically Abilify for “schizophrenic.” Defense
counsel informed the circuit court that she did not have any problem communicating with Mason,
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who “appears to completely understand everything I’ve said,” but that he “has been frustrated.”
Mason advised the circuit court that he understood what was happening and inquired whether he
would get help for his mental illness in prison. Mason acknowledged he was pleading guilty “freely
and voluntarily.”
¶7 The circuit court then heard the factual basis for the plea. On April 1, 2018, at 12:07 a.m.,
police officers responded to an alarm at The Children’s Place, a store located at 712 East 87th
Street in Chicago. The store was closed, the doors were locked, and no employees were present.
Police observed a broken window display on the outside of the store and a hole in the drywall
behind the broken glass. Officers heard someone moving inside the building and observed Mason
inside the building moving toward the back of the store. Officers arrested Mason as he exited the
back of the building. Officers also observed that the store’s security system had been tampered
with, although the security camera was still recording. Security camera footage showed Mason
inside the store and moving toward a safe. One of the safe’s keys was inserted in the safe. A store
employee informed police that the key had not been left in the safe, but instead had been left next
to the safe. The store manager did not know Mason, and Mason did not have permission or
authority to be in the store after hours. The circuit court found there was a factual basis for the
plea.
¶8 Also on July 26, 2018, the circuit court, consistent with the plea agreement, sentenced
Mason to six years’ imprisonment and three years’ MSR on the robbery count due to Mason’s
criminal background, which included a 2002 conviction for armed robbery, for which he was
sentenced to 12 years in prison; a 2012 conviction for burglary, for which he was sentenced to 3
years in prison; and, a 2014 retail theft conviction, for which he received 13 days in county jail.
Mason was advised of his appeal rights and the necessity for a motion to withdraw the plea.
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¶9 Mason filed a pro se motion to reduce sentence. The motion, as it appears in the record on
appeal, bears a file-stamp of August 31, 2018, but is not accompanied by any certificate of service;
rather, the accompanying notice of filing simply states the motion was filed. The substance of
Mason’s motion argues that the State charged him with burglary even though nothing was taken
from the store and there was “reasonable doubt my charges are excessive due too off [sic] my
background and habitual 6-year class X felon including my mental illness bipolar [sic].” An
accompanying form affidavit contains Mason’s name but is not signed by him in any manner.
¶ 10 On September 20, 2018, the circuit court held a status hearing. Defense counsel was present
in court, but Mason was not. The circuit court indicated it would continue the motion for Mason
to be present, and made the following remarks on the record:
“I really think he is asking to vacate his plea based upon everything that’s
in [the motion].”
I think in terms of the 30 day time period he is—there is a couple days off
[sic] so I am not going to—I don’t think I am going to knock him out of the box for
being two days late on a 30 day term based on the mail, so we will see what he
wants to do when he is here.
I think he needs to put on the record if it is something that he wants to
proceed on or not.”
¶ 11 On October 18, 2018, Mason told the circuit court that he wanted to withdraw his guilty
plea. The circuit court indicated that it would recharacterize his motion to reduce sentence as a
motion to withdraw his guilty plea and order the transcript for review.
¶ 12 After several continuances, the circuit court held a retroactive fitness hearing. Fidel
Echevarria, M.D., a psychiatrist, testified that Mason was legally fit at the time of his plea.
4 No. 1-20-0387
¶ 13 Mason testified, in relevant part, that he did not recall pleading guilty and that he was on
medication at the time of the plea. He was depressed and suicidal at the time of the plea, and just
“wanted to get it all over with.” He told his lawyer that he was on medication but she “walked
away and *** said it didn’t mean anything.”
¶ 14 After being cross-examined, Mason attempted to present the circuit court with a “motion
to dismiss the counts,” and indicated that he “wanted to relieve [defense counsel] from her duties,”
declaring “ineffective assistance of counsel,” and asserting that she showed prejudice and violated
his fourteenth amendment rights. He elaborated that defense counsel had not investigated “to see
if I was on medication and what type of medication I was on until after” he pleaded guilty. The
circuit court explained that no investigation was done after the plea because the matter was settled,
and an investigation was only done afterward because Mason filed a motion to reduce sentence,
recharacterized as a motion withdraw the guilty plea. The circuit court then heard argument
regarding the issue of Mason’s fitness at the time of his plea.
¶ 15 On September 10, 2019, the circuit court denied Mason’s motion to withdraw his guilty
plea. The circuit court made the following findings. Mason pleaded guilty on July 26, 2018. Mason
filed a motion to reduce sentence that was not file-stamped within 30 days of the plea, but the
circuit court
“erred on the side of giving defendant the benefit of the doubt and I found
that since we were dealing with a few days passed [sic] 30 days from the time it hit
the clerk’s office that there was a chance the defendant had mailed it within 30
days. So it was not dismissed by this court on a technicality, which I believe that I
could have done but I didn’t do that.”
5 No. 1-20-0387
Nothing in Mason’s written motion asserted ineffective assistance of counsel. The allegation in
Mason’s motion that he was bipolar “jumped out” to the trial judge, as that could have implicated
his fitness. The circuit court, however, never entertained a bona fide doubt about Mason’s fitness.
The fact that Mason was taking psychotropic medication did not, on its own, create a bona fide
doubt regarding fitness. After hearing testimony and argument, and reviewing the transcripts and
Mason’s motion, the circuit court denied Mason’s motion to withdraw his guilty plea.
¶ 16 The record reflects that Mason mailed a handwritten pro se notice of appeal to the clerk of
the circuit court, which was file-stamped September 27, 2019.
¶ 17 II. JURISDICTION
¶ 18 Mason pleaded guilty on July 26, 2018. His pro se motion for a reduction of sentence,
which was treated as a motion to withdraw his guilty plea, was filed-stamped by the clerk of the
circuit court on August 31, 2018. The circuit court denied Mason’s motion on September 10, 2019.
Mason’s notice of appeal identified the denial of his motion to withdraw his guilty plea, and
purported to raise various claims, including ineffective assistance of counsel. For reasons
unknown, the notice of appeal was not transmitted to this court. Mason filed a motion for leave to
file a late notice of appeal from the circuit court’s September 10, 2019, order, which this court
granted on March 5, 2020.
¶ 19 That, however, does not end our jurisdictional inquiry. As an initial matter, we note that
the Rule 341(h)(4)(ii) statement of jurisdiction in Mason’s appellate brief is incomplete and
contains an inaccurate factual assertion. First, it is incomplete because he does not identify “the
date that the order being appealed was entered.” His jurisdictional statement asserts:
“Levell Mason appeals from a final judgment of conviction in a criminal
case. Appellant pleaded guilty and was sentenced to 6 years on January 31, 2020.
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Late notice of appeal was allowed on March 5, 2020. Jurisdiction therefore lies in
this Court pursuant to Article VI, Section 6, of the Illinois Constitution, and
Supreme Court Rule 604(d).” (Emphasis added and internal record citations
omitted.)
¶ 20 Mason pleaded guilty and was sentenced on July 26, 2018, not on January 31, 2020. The
record reflects that Mason filed two motions to withdraw his guilty plea. The first bears a file-
stamp of August 31, 2018, which the circuit court denied on September 10, 2019, and which is the
subject of this appeal. The second motion bears a file-stamp of December 18, 2019. On January
31, 2020, the circuit court observed in open court that the second motion was postmarked
November 11, 2019, and denied the motion on the basis of the doctrine of res judicata, noting that
“[t]he motion was already heard and ruled on on 9-10 of ’19.”
¶ 21 The inaccurate statement of fact in Mason’s jurisdictional statement, while confusing, is
ultimately immaterial. The statement of facts in Mason’s appellate brief accurately sets forth the
progression of events, and it is clear to us that Mason is appealing from the circuit court’s
September 10, 2019, order denying his first motion to withdraw his guilty plea. Indeed, Mason’s
September 27, 2019, notice of appeal, his subsequent motion for leave to file a late notice of appeal,
and our March 5, 2020, order all identify the circuit court’s September 10, 2019, order as the
judgment from which he appeals.
¶ 22 In reviewing the record to ensure our jurisdiction, we observe that Mason’s motion to
withdraw his guilty plea bears a file-stamp of August 31, 2018, which was more than 30 days after
July 26, 2018, when the circuit court accepted his guilty plea and sentenced him to six years’
imprisonment. Furthermore, nothing in the record demonstrates that his motion was mailed, or—
even assuming that it was mailed—when Mason placed his motion in the mail. Therefore, there is
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nothing in the record to suggest that Mason’s motion was timely filed for the purposes of Illinois
Supreme Court Rule 604(d) (eff. July 1, 2017).
¶ 23 Rule 604(d), in relevant part, prohibits a criminal defendant from filing a notice of appeal
following a guilty plea unless the defendant files a motion within 30 days of sentencing to either
reconsider the sentence or withdraw the guilty plea. Ill. S. Ct. R. 604(d). A timely motion to
withdraw a guilty plea “is a condition precedent to an appeal from a judgment on a plea of guilty.”
People v. Flowers, 208 Ill. 2d 291, 300-01 (2003). “The discovery that a defendant has failed to
file a timely Rule 604(d) motion in the circuit court does not deprive the appellate court of
jurisdiction over a subsequent appeal” (id. at 301), but “the failure to file a timely Rule 604(d)
motion precludes the appellate court from considering the appeal on the merits” (id.).
¶ 24 Here, Mason pleaded guilty pursuant to a negotiated plea on July 26, 2018. Under Rule
604(d), because the 30th day following July 26th was Saturday, August 25, 2018, a motion to
withdraw his guilty plea needed to be filed no later than August 27, 2018. 5 ILCS 70/1.11 (West
2020). Mason’s motion bears a file-stamp of August 31, 2018, and therefore was not timely filed.
¶ 25 The circuit court observed that Mason’s motion was not timely but stated on the record that
it would not penalize Mason—who was incarcerated at the time he filed the motion—for being a
few days late because “there was a chance the defendant had mailed it within 30 days.” The record
on appeal, however, does not contain any affidavits, certificates of mailing, or postmarked
envelopes establishing that Mason mailed his motion or, assuming Mason mailed his motion, when
he mailed his motion.
¶ 26 Supreme Court Rule 373 establishes a “mailbox rule” (People v. Cooper, 2021 IL App
(1st) 190022, ¶ 12), and provides that the time of filing is the date a document is received by the
clerk of the circuit court, but if documents are received after their due date, “the time of mailing
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by an incarcerated, pro se litigant shall be deemed the time of filing. Proof of mailing shall be as
provided in Rule 12” (Ill. S. Ct. R. 373 (eff. July 1, 2017)). Rule 12(b)(6) provides that service of
a document is proved in situations involving incarcerated, self-represented litigants “by
certification under section 1-109 of the Code of Civil Procedure [(Code)] of the person who
deposited the document in the institutional mail, stating the time and place of deposit and the
complete address to which the document was to be delivered.” Ill. S. Ct. R. 12(b)(6) (eff. July 1,
2017). In other words, when the clerk of the circuit court file-stamps a document, we accept the
file-stamped date as the date of filing unless the record demonstrates that an incarcerated, pro se
litigant certified that they mailed the document from a correctional facility on a specific date at a
specific time to a specific address. Here, the record is silent as to whether Mason mailed his motion.
Further, assuming Mason did mail his motion, and further assuming he mailed his motion from a
correctional facility, the record is silent as to when he placed his motion in the mail. Regardless of
whether it is reasonable to assume that Mason mailed the motion from the correctional facility to
the clerk of the circuit court, “Rule 12 simply does not allow courts to infer when a defendant
placed a document in the mail system.” Cooper, 2021 IL App (1st) 190022, ¶ 16 (citing People v.
Shines, 2015 IL App (1st) 121070, ¶ 32). In the absence of any evidence of when Mason placed
his motion in the mail system, we must rely on the clerk of the circuit court court’s file-stamped
date on the motion itself, which shows the motion was not filed within 30 days of the circuit court’s
sentencing order.
¶ 27 Ordinarily, we would dismiss an appeal where the record reflects an untimely motion to
withdraw a guilty plea, or where the record does not establish that the motion was timely. Flowers,
208 Ill. 2d at 301. However, a different panel of this court recently addressed a similar situation
and concluded that a different result was appropriate. In Cooper, the defendant pleaded guilty to
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one count of murder in exchange for a 45-year prison sentence. 2021 IL App (1st) 190022, ¶ 4. He
subsequently filed a pro se motion to withdraw his guilty plea, which was file-stamped “1 day
after the 30-day filing deadline had passed.” Id. ¶ 5. While the circuit court inquired as to when
the defendant filed the motion, the circuit court never inquired as to when he placed his motion in
the mail. Id. ¶¶ 2, 5. The defendant, who was “unrepresented by counsel and quite possibly
unaware that, under the mailbox rule, the date of mailing can be deemed the date of filing,” agreed
that his motion was filed one day late. Id. ¶ 5. The circuit court denied the motion to withdraw the
guilty plea as untimely and without merit, and the defendant appealed. Id. ¶¶ 5-6. On appeal, we
determined that there was nothing in the record establishing that the motion was timely filed
because there was no proof of service indicating when the defendant placed his motion in the mail.
Id. ¶¶ 10-18. We found, however, that “there was ample opportunity in this case for the circuit
court to allow [the defendant] to supplement the record with a Rule 12(b)(6) certification if, as the
record suggests in this case, he could have truthfully done so.” Id. ¶ 19. Further, once the circuit
court “determined that the document had been file-stamped by the clerk’s office just once day after
it was due, the appropriate next step was to determine whether [the defendant] could supplement
his motion with the certification required by Rule 12(b)(6) and section 1-109 of the Code.” Id. ¶ 20.
Nothing in Rule 12(b)(6) prohibited the defendant from supplementing his filing with an
appropriate proof of service, and had he done so, the circuit court would have appointed counsel
and then could have considered the merits of his motion. Id. ¶ 21. We remanded the matter to the
circuit court “for the limited purpose of inquiring of [the defendant] when his motion was mailed,”
and explained that:
“If [the motion] was timely mailed and [the defendant] is able to truthfully
do so, he should be allowed to supply a certification complying with Rule 12(b)(6)
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and section 1-109 of the Code that establishes the date and manner of mailing for
his motion to withdraw his guilty plea. If the motion was timely and [the defendant]
is indigent, he is entitled to the appointment of counsel under Rule 604(d). We
retain jurisdiction over this appeal to consider the timeliness and the merits of [the
defendant’s], if necessary, on a more complete record.” Id. ¶ 24.
¶ 28 Here, it appears that the circuit court suspected that Mason’s motion was untimely and
“erred on the side of giving defendant the benefit of the doubt,” reasoning “that since we were
dealing with a few days passed [sic] 30 days from the time it hit the clerk’s office that there was a
chance the defendant had mailed it within 30 days.” (Emphasis added.) The circuit court, however,
never determined when the motion was mailed or whether there was proof that Mason mailed his
motion within 30 days. Furthermore, during the proceedings on Mason’s motion in the circuit
court, defense counsel never addressed the timeliness of the motion, and the circuit court never
asked whether Mason had any information demonstrating that the motion was timely. Taking
Cooper’s cue, rather than dismiss this appeal, we too believe the appropriate remedy is to retain
jurisdiction and remand to the circuit court to afford Mason an opportunity to supplement his
motion with a certification establishing the date and manner of the filing of his motion.
¶ 29 We acknowledge there are some differences between this case and Cooper, namely that
here, Mason was represented by counsel in the proceedings on his motion, whereas the defendant
in Cooper was pro se. Indeed, on appeal, Mason argues that we should find defense counsel was
ineffective for not amending the pro se motion to avoid the “potential untimeliness” of the motion
and argues that “[t]his omission could have had a devastating effect” had the circuit court not
“accepted jurisdiction.” Further, the circuit court in Cooper never reached the merits of the
defendant’s motion to withdraw his guilty plea, whereas here, the circuit court denied the motion
11 No. 1-20-0387
on the merits after a hearing. We also acknowledge that Mason’s arguments on appeal are directed
at his trial counsel’s performance and the circuit court’s alleged failure to conduct an adequate
investigation into Mason’s pro se claims of ineffective assistance of counsel, which were not
present in Cooper. But these differences are immaterial because the record is silent as to whether
Mason’s original motion was timely filed for the purposes of Rule 604(d), which in turn affected
the circuit court’s ability to even hear the motion, including the ability to consider Mason’s pro se
allegations of ineffective assistance of counsel. See Shines, 2015 IL App (1st) 121070, ¶ 30
(finding the circuit court had no jurisdiction to consider pro se defendant’s allegations of
ineffective assistance of counsel contained in a letter filed more than 30 days after sentencing). A
remand would afford Mason an opportunity to clarify this court’s ability to review the underlying
proceedings on the merits.
¶ 30 III. CONCLUSION
¶ 31 For the foregoing reasons, we remand this matter to the circuit court for the limited purpose
of determining the timeliness of Mason’s motion, including when Mason mailed his original
motion, and, if appropriate, permitting Mason to supply a certification that complies with Rule
12(b)(6) and section 1-109 of the Code. We retain jurisdiction to consider the timeliness and—
assuming the circuit court’s jurisdiction is established—merits of his motion, as well as the
propriety of the circuit court’s Krankel inquiry.
¶ 32 Remanded with directions.