NOTICE 2023 IL App (4th) 230060-U This Order was filed under FILED Supreme Court Rule 23 and is August 18, 2023 not precedent except in the NOS. 4-23-0060, 4-23-0061, 4-23-0062 Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Adams County CASEY WAINWRIGHT, ) Nos. 21CF162 Defendant-Appellant. ) 22CF224 ) 22CF228 ) ) Honorable ) Amy C. Lannerd, ) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court. Justices Turner and Steigmann concurred in the judgment.
ORDER
¶1 Held: The appellate court vacated the trial court’s ruling on defendant’s motion to withdraw his guilty plea or, alternatively, to reconsider his sentence and dismissed said motion after concluding that defendant failed to timely file it.
¶2 Defendant, Casey Wainwright, appeals from the trial court’s denial of his pro se
motion to withdraw his guilty plea or, alternatively, to reconsider his sentence after he was
sentenced to nine years’ imprisonment for aggravated domestic battery following the revocation
of his probation in case No. 21-CF-162. We conclude that, because defendant’s motion was
untimely, the notice of appeal was also untimely, such that we lack jurisdiction over this appeal.
Accordingly, we exercise our limited authority to vacate the court’s ruling on defendant’s motion
to withdraw his guilty plea or reconsider his sentence and dismiss the motion.
¶3 I. BACKGROUND ¶4 In February 2021, defendant was charged in case No. 21-CF-162 with aggravated
domestic battery (720 ILCS 5/12-3.3(a-5) (West 2020)) and domestic battery (720 ILCS 5/12-
3.2(a)(1) (West 2020)). Pursuant to a plea agreement, defendant pleaded guilty to aggravated
domestic battery and was sentenced to 24 months of probation.
¶5 In May 2022, the State filed a petition to revoke probation, alleging that defendant
violated the terms of his probation by committing additional offenses for which he was charged in
different cases in April 2022. Specifically, in case No. 22-CF-224, defendant was charged with
aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2022)) and unlawful possession
of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2022)). In case No. 22-CF-228, defendant
was charged with domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2022)). Defendant pleaded
guilty to domestic battery in case No. 22-CF-228 and unlawful possession of a weapon by a felon
in case No. 22-CF-224. Defendant also admitted that he violated the terms of his probation in case
No. 21-CF-162. In exchange for defendant’s pleas, the State agreed to cap its recommended
sentence to 10 years in prison.
¶6 On November 21, 2022, the trial court held a hearing and sentenced defendant to
an aggregate of nine years in prison. The court admonished defendant that, prior to any appeal, he
was required to file a motion to vacate the judgment and for leave to withdraw his guilty plea. The
court informed defendant that, if such a motion were allowed, the judgment and sentence would
be vacated, and a trial date would be set on the charges. The court also explained that a copy of
defendant’s plea and sentencing transcripts would be provided to defendant, and an attorney would
be appointed if he was indigent. Finally, the court admonished defendant that if any such motion
were denied, a notice of appeal needed to be filed within 30 days of that denial. Defendant
acknowledged that he understood these admonishments.
-2- ¶7 Defendant’s pro se “Motion to Vacate and Lift Guilty Plea/and or [sic] Reconsider
Sentence” was file-stamped on December 27, 2022. Therein, defendant asserted, inter alia, that
his counsel was ineffective for (1) failing to explain the negotiated plea as to concurrent and
consecutive sentencing and (2) failing to inform him “how the Illinois Department of Corrections
tolls the time periods of incarceration.” In the body of the motion, defendant also alleged that his
motion was “timely filed and has been sent via the United States Postal Service by and *** through
Graham Correctional Center. December 20, 2022.” The motion included no proof of service or
attestation.
¶8 On December 28, 2022, the trial court denied defendant’s motion, explaining that
(1) the motion “was not filed within 30 days of either plea or sentence,” (2) the sentence was within
the statutory range for sentences in each case, (3) defendant was admonished of both the mandatory
and discretionary consecutive sentencing applicable to each of his cases, (4) defendant was
“admonished of 85% sentencing” in case No. 21-CF-162, and (5) defendant’s remaining
allegations were without merit.
¶9 This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 Defendant argues that the trial court “erred when it denied” defendant’s motion
because there is a “substantial likelihood” that he mailed his motion within 30 days of his
sentencing hearing, such that the motion would be deemed timely pursuant to the “mailbox rule.”
Defendant asserts that, although his motion was stamped as being filed on December 27, 2022, he
explained in the body of the motion that he mailed it on December 20, 2022. Defendant contends
that, given the “substantial probability” that defendant “mailed his [motion] in a timely fashion,”
the case should be remanded and a hearing should be held to determine whether the motion was
-3- timely filed. The State responds that we should dismiss the appeal for lack of jurisdiction because
defendant failed to timely file his motion.
¶ 12 Whether we have jurisdiction to consider an appeal is a question of law, which we
review de novo. People v. English, 2023 IL 128077, ¶ 13. The interpretation of statutes and
supreme court rules also presents a question of law, which we review de novo. People v. Gorss,
2022 IL 126464, ¶ 10. When interpreting statutes and supreme court rules, we must ascertain and
give effect to the drafters’ intent. Gorss, 2022 IL 126464, ¶ 10. The most reliable indicator of intent
is the language of the statute or rule, which must be given its plain and ordinary meaning. Gorss,
2022 IL 126464, ¶ 10. When the language is clear and unambiguous, we apply it as written without
resort to aids of construction. Gorss, 2022 IL 126464, ¶ 10.
¶ 13 Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) provides:
“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.
***
When the motion is based on facts that do not appear of record it shall be supported
by affidavit unless the defendant is filing the motion pro se from a correctional
institution, in which case the defendant may submit, in lieu of an affidavit, a
certification as provided in section 1-109 of the Code of Civil Procedure (735 ILCS
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NOTICE 2023 IL App (4th) 230060-U This Order was filed under FILED Supreme Court Rule 23 and is August 18, 2023 not precedent except in the NOS. 4-23-0060, 4-23-0061, 4-23-0062 Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Adams County CASEY WAINWRIGHT, ) Nos. 21CF162 Defendant-Appellant. ) 22CF224 ) 22CF228 ) ) Honorable ) Amy C. Lannerd, ) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court. Justices Turner and Steigmann concurred in the judgment.
ORDER
¶1 Held: The appellate court vacated the trial court’s ruling on defendant’s motion to withdraw his guilty plea or, alternatively, to reconsider his sentence and dismissed said motion after concluding that defendant failed to timely file it.
¶2 Defendant, Casey Wainwright, appeals from the trial court’s denial of his pro se
motion to withdraw his guilty plea or, alternatively, to reconsider his sentence after he was
sentenced to nine years’ imprisonment for aggravated domestic battery following the revocation
of his probation in case No. 21-CF-162. We conclude that, because defendant’s motion was
untimely, the notice of appeal was also untimely, such that we lack jurisdiction over this appeal.
Accordingly, we exercise our limited authority to vacate the court’s ruling on defendant’s motion
to withdraw his guilty plea or reconsider his sentence and dismiss the motion.
¶3 I. BACKGROUND ¶4 In February 2021, defendant was charged in case No. 21-CF-162 with aggravated
domestic battery (720 ILCS 5/12-3.3(a-5) (West 2020)) and domestic battery (720 ILCS 5/12-
3.2(a)(1) (West 2020)). Pursuant to a plea agreement, defendant pleaded guilty to aggravated
domestic battery and was sentenced to 24 months of probation.
¶5 In May 2022, the State filed a petition to revoke probation, alleging that defendant
violated the terms of his probation by committing additional offenses for which he was charged in
different cases in April 2022. Specifically, in case No. 22-CF-224, defendant was charged with
aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2022)) and unlawful possession
of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2022)). In case No. 22-CF-228, defendant
was charged with domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2022)). Defendant pleaded
guilty to domestic battery in case No. 22-CF-228 and unlawful possession of a weapon by a felon
in case No. 22-CF-224. Defendant also admitted that he violated the terms of his probation in case
No. 21-CF-162. In exchange for defendant’s pleas, the State agreed to cap its recommended
sentence to 10 years in prison.
¶6 On November 21, 2022, the trial court held a hearing and sentenced defendant to
an aggregate of nine years in prison. The court admonished defendant that, prior to any appeal, he
was required to file a motion to vacate the judgment and for leave to withdraw his guilty plea. The
court informed defendant that, if such a motion were allowed, the judgment and sentence would
be vacated, and a trial date would be set on the charges. The court also explained that a copy of
defendant’s plea and sentencing transcripts would be provided to defendant, and an attorney would
be appointed if he was indigent. Finally, the court admonished defendant that if any such motion
were denied, a notice of appeal needed to be filed within 30 days of that denial. Defendant
acknowledged that he understood these admonishments.
-2- ¶7 Defendant’s pro se “Motion to Vacate and Lift Guilty Plea/and or [sic] Reconsider
Sentence” was file-stamped on December 27, 2022. Therein, defendant asserted, inter alia, that
his counsel was ineffective for (1) failing to explain the negotiated plea as to concurrent and
consecutive sentencing and (2) failing to inform him “how the Illinois Department of Corrections
tolls the time periods of incarceration.” In the body of the motion, defendant also alleged that his
motion was “timely filed and has been sent via the United States Postal Service by and *** through
Graham Correctional Center. December 20, 2022.” The motion included no proof of service or
attestation.
¶8 On December 28, 2022, the trial court denied defendant’s motion, explaining that
(1) the motion “was not filed within 30 days of either plea or sentence,” (2) the sentence was within
the statutory range for sentences in each case, (3) defendant was admonished of both the mandatory
and discretionary consecutive sentencing applicable to each of his cases, (4) defendant was
“admonished of 85% sentencing” in case No. 21-CF-162, and (5) defendant’s remaining
allegations were without merit.
¶9 This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 Defendant argues that the trial court “erred when it denied” defendant’s motion
because there is a “substantial likelihood” that he mailed his motion within 30 days of his
sentencing hearing, such that the motion would be deemed timely pursuant to the “mailbox rule.”
Defendant asserts that, although his motion was stamped as being filed on December 27, 2022, he
explained in the body of the motion that he mailed it on December 20, 2022. Defendant contends
that, given the “substantial probability” that defendant “mailed his [motion] in a timely fashion,”
the case should be remanded and a hearing should be held to determine whether the motion was
-3- timely filed. The State responds that we should dismiss the appeal for lack of jurisdiction because
defendant failed to timely file his motion.
¶ 12 Whether we have jurisdiction to consider an appeal is a question of law, which we
review de novo. People v. English, 2023 IL 128077, ¶ 13. The interpretation of statutes and
supreme court rules also presents a question of law, which we review de novo. People v. Gorss,
2022 IL 126464, ¶ 10. When interpreting statutes and supreme court rules, we must ascertain and
give effect to the drafters’ intent. Gorss, 2022 IL 126464, ¶ 10. The most reliable indicator of intent
is the language of the statute or rule, which must be given its plain and ordinary meaning. Gorss,
2022 IL 126464, ¶ 10. When the language is clear and unambiguous, we apply it as written without
resort to aids of construction. Gorss, 2022 IL 126464, ¶ 10.
¶ 13 Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) provides:
“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.
***
When the motion is based on facts that do not appear of record it shall be supported
by affidavit unless the defendant is filing the motion pro se from a correctional
institution, in which case the defendant may submit, in lieu of an affidavit, a
certification as provided in section 1-109 of the Code of Civil Procedure (735 ILCS
5/1-109).”
-4- ¶ 14 Defendant acknowledges that the file stamp on his motion bears a date of December
27, 2022, which is beyond the 30-day deadline set forth in Rule 604(d). However, defendant relies
on the “mailbox rule” exception to the 30-day period. Under Illinois Supreme Court Rule 373 (eff.
July 1, 2017), if documents required to be filed within a specified time are “received after the due
date, the time of mailing by an incarcerated, self-represented litigant shall be deemed the time of
filing.” Rule 373 provides that “[p]roof of mailing shall be as provided in Rule 12.” Ill. S. Ct. R.
373 (eff. July 1, 2017).
¶ 15 Illinois Supreme Court Rule 12(b)(6) (eff. July 1, 2017) provides that, for “service
by mail by a self-represented litigant residing in a correctional facility,” service is proved “by
certification under section 1-109 of the Code of Civil Procedure 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.” Section 1-109, in turn, requires a person “having
knowledge of the matters stated in a pleading, affidavit or other document” to
“subscribe to a certification in substantially the following form: Under penalties as
provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the
undersigned certifies that the statements set forth in this instrument are true and
correct, except as to matters therein stated to be on information and belief as to such
matters the undersigned certifies as aforesaid that he verily believes the same to be
true.” 735 ILCS 5/1-109 (West 2022).
¶ 16 Defendant admits that he “did not include a notice and proof of service” with his
motion. However, defendant asserts that he noted in the body of his motion that he placed the
motion in the United States Postal Service at Graham Correctional Center on December 20, 2022.
While defendant states that he “arguably did not comply with the requirements of Rule 12,” he
-5- contends that he “may have” timely mailed his motion. Defendant, relying on People v. Cooper,
2021 IL App (1st) 190022, thus argues that this case should be remanded so the trial court can
conduct a hearing to determine when his motion was mailed.
¶ 17 In Cooper, the defendant pleaded guilty to one count of first degree murder.
Cooper, 2021 IL App (1st) 190022, ¶ 4. The defendant was admonished that if he wished to appeal,
he had 30 days to file a motion to withdraw his guilty plea. Cooper, 2021 IL App (1st) 190022,
¶ 4. The defendant filed a pro se motion to withdraw his guilty plea that was file-stamped one day
after the deadline, and during a hearing on the motion, the trial court asked about the date the
motion was filed but not when it was mailed. Cooper, 2021 IL App (1st) 190022, ¶ 5. The court
denied the defendant’s motion, in part, because it was untimely. Cooper, 2021 IL App (1st)
190022, ¶ 5. The appellate court determined that, while the defendant provided no proof of the
time he mailed his motion, “there was ample opportunity *** for the circuit court to allow
[defendant] to supplement the record with a Rule 12(b)(6) certification.” Cooper, 2021 IL App
(1st) 190022, ¶¶ 18-19. The appellate court concluded that, as it saw “nothing in Rule 12(b)(6) that
prohibits a litigant from supplementing his filing with a certification proving the date and manner
of mailing,” the defendant should be permitted to do so, and the court remanded the case. Cooper,
2021 IL App (1st) 190022, ¶¶ 21, 24.
¶ 18 Defendant’s reliance on Cooper is unpersuasive. We declined to follow Cooper in
People v. Shunick, 2022 IL App (4th) 220019, ¶ 24, which we find instructive. In Shunick, the
defendant was found guilty of unlawfully possessing a controlled substance with intent to deliver.
Shunick, 2022 IL App (4th) 220019, ¶ 3. After the defendant was sentenced, he filed a pro se
petition for postconviction relief. Shunick, 2022 IL App (4th) 220019, ¶ 5. The trial court
summarily dismissed the petition on September 30, 2021. Shunick, 2022 IL App (4th) 220019, ¶ 6.
-6- Thereafter, the defendant filed a motion asking the court to reconsider the dismissal of his
postconviction petition and for leave to amend the petition. Shunick, 2022 IL App (4th) 220019,
¶ 7. The circuit clerk file-stamped the motion to reconsider on November 3, 2021. Shunick, 2022
IL App (4th) 220019, ¶ 7. The last page of the motion was a “Certificate of Service,” which
provided:
“This is to certify That I have on this date served true and correct copies of the
foregoing to:
Clerk of the Circuit Court of Knox County and;
Knox County State’s Attorney
via U.S. Mail postage fully prepaid on this 26th day of Oct 2021 by depositing the same in
the institutional mailbox at Dixon [Correctional Center].” (Internal quotation marks
omitted.) Shunick, 2022 IL App (4th) 220019, ¶ 8.
The court denied the motion in December 2021, and the defendant appealed. Shunick, 2022 IL
App (4th) 220019, ¶¶ 9-11. This court concluded that we lacked jurisdiction to address the
substantive merits of the appeal. Shunick, 2022 IL App (4th) 220019, ¶ 21. We reasoned that the
motion for reconsideration, judging by its November 3, 2021, file stamp, was untimely, as it was
not filed within 30 days of the date the summary dismissal order was entered: September 30, 2021.
Shunick, 2022 IL App (4th) 220019, ¶ 16. While we acknowledged that “the prison mailbox rule
can overcome a file stamp,” we explained that an incarcerated person, to rely on the rule, must
provide an adequate proof of service under Rule 12(b)(6). Shunick, 2022 IL App (4th) 220019,
¶ 17. We determined that the proof of service at the end of the defendant’s motion failed to comply
with Rule 12(b)(6)’s requirements that it (1) include a certification containing language resembling
that prescribed by section 1-109 and (2) state the complete address to which the document was to
-7- be delivered. Shunick, 2022 IL App (4th) 220019, ¶¶ 18-20. Thus, we concluded that the date on
the motion’s file stamp controlled, such that the motion was untimely. Shunick, 2022 IL App (4th)
220019, ¶ 21. Thereafter, we rejected the defendant’s invitation to apply Cooper and remand the
case for an opportunity to supply a compliant certificate of service. Shunick, 2022 IL App (4th)
220019, ¶ 24. We explained that Cooper did not square with the principles that (1) a file stamp is
deemed definitive when a postjudgment motion lacks sufficient service at the time of filing; (2) a
trial court lacks jurisdiction to rule upon an untimely postjudgment motion; and (3) when a trial
court rules on an untimely postjudgment motion, the appellate court’s jurisdiction is limited to
vacating the trial court’s ruling and dismissing the motion. Shunick, 2022 IL App (4th) 220019,
¶ 23. Thus, we vacated the trial court’s ruling on the motion for reconsideration and ordered the
dismissal of the motion. Shunick, 2022 IL App (4th) 220019, ¶ 26.
¶ 19 We further note English, 2023 IL 128077, supports the conclusion that remand
under circumstances like those here is unwarranted. In English, the trial court denied the
defendant’s motion for leave to file a successive postconviction petition on August 3, 2020.
English, 2023 IL 128077, ¶ 6. The defendant filed a notice of appeal that was file-stamped by the
clerk on September 10, 2020. English, 2023 IL 128077, ¶ 7. The envelope containing the notice of
appeal bore a postage meter stamp with the date September 1, 2020. English, 2023 IL 128077, ¶ 7.
The defendant conceded that he did not file a certification pursuant to section 1-109 stating the
time and place of deposit and the complete address to which the document was to be delivered.
English, 2023 IL 128077, ¶ 29. After the appellate court dismissed the defendant’s appeal for lack
of jurisdiction, the defendant appealed to the supreme court. English, 2023 IL 128077, ¶ 9. The
supreme court agreed that the appellate court lacked jurisdiction. English, 2023 IL 128077, ¶ 36.
The court determined that the notice of appeal was untimely because the postage meter stamp was
-8- not the proper method of establishing timeliness under Rule 12, i.e., certification pursuant to
section 1-109. English, 2023 IL 128077, ¶ 29. The court confirmed that certification was the “sole
means” of establishing the time of mailing under Rule 373 for pro se incarcerated litigants.
English, 2023 IL 128077, ¶ 2. Accordingly, the court determined that the notice of appeal was filed
when it was received by the trial court on September 10, 2020—eight days after the due date.
English, 2023 IL 128077, ¶ 36. The court stated that straightforward application of Rule 12 did not
lead to harsh or absurd results, explaining that the rules promote a definitive form of proof “reliant
only on the litigant,” instead of uncertain forms reliant on third parties that may lead to problems
with postmark legibility or delays in affixing postmarks. English, 2023 IL 128077, ¶ 32. Thus,
because the notice of appeal was untimely and the appellate court lacked jurisdiction, the court
dismissed the appeal. English, 2023 IL 128077, ¶ 38.
¶ 20 Here, defendant was sentenced on November 21, 2022. Therefore, defendant had
until December 21, 2022, to file his motion. See Ill. S. Ct. R. 604(d) (eff. July 1, 2017). However,
the file stamp on defendant’s motion bears a date of December 27, 2022. Although defendant
claims he mailed his motion on an earlier date, defendant included no certification as described in
Rule 12(b)(6), which was the “sole means” of establishing the time of mailing of his motion.
English, 2023 IL 128077, ¶ 2. Accordingly, defendant’s motion was untimely, and as a result,
defendant’s notice of appeal was also untimely, such that we lack jurisdiction over this appeal.
Shunick, 2022 IL App (4th) 220019, ¶ 21. Where the trial court ruled upon an untimely
postjudgment motion, our jurisdiction is limited to vacating the trial court’s ruling on the motion
and dismissing the motion. Shunick, 2022 IL App (4th) 220019, ¶ 23. Accordingly, we vacate the
trial court’s ruling on defendant’s motion and dismiss the motion.
¶ 21 III. CONCLUSION
-9- ¶ 22 For the reasons stated, we vacate the trial court’s ruling on the motion and dismiss
the motion.
¶ 23 Order vacated; motion dismissed.
- 10 -