People v. Merriweather , 2021 IL App (2d) 200379 ( 2021 )

2021 IL App (2d) 200379No. 2-20-0379
Opinion filed December 2, 2021
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 18-CF-2433
)
ROBERT E. MERRIWEATHER, ) Honorable
) Alice C. Tracy,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
Presiding Justice Bridges and Justice McLaren concurred in the judgment and opinion.
OPINION
¶1 Defendant, Robert E. Merriweather, entered a nonnegotiated guilty plea to a single count
of unlawful possession of a controlled substance with intent to deliver 1 gram or more but less
than 15 grams of heroin (720 ILCS 570/401(c)(1) (West 2018)). The trial court agreed with the
State that the court should treat defendant’s federal convictions as equivalent to at least Class 2
felonies, and thus as predicate felonies for Class X sentencing. In that light, the court imposed a
sentence of 8½ years’ imprisonment. Defense counsel timely filed a motion to reconsider the
sentence but did not file a certificate under Illinois Supreme Court Rule 604(d) (eff. July 1, 2017).
The court granted the motion in part, reducing the sentence to eight years. In this appeal, defendant
seeks a remand for compliance with Rule 604(d). The State agrees that such a remand is required.
2021 IL App (2d) 200379However, defendant also asks us to (1) instruct the trial court that he is not subject to Class X
sentencing and (2) remand the cause without vacating his eight-year sentence, to ensure that he is
not penalized for enforcing his rights under Rule 604(d). We conclude that this appeal is limited
to ensuring compliance with Rule 604(d), and thus we decline to address the propriety of the Class
X sentencing. However, we conclude that, consistent with our holding in People v. Strawder, 374
Ill. App. 3d 338 (2007), we need not vacate the sentencing reduction to give defendant appropriate
relief. Therefore, we leave defendant’s sentence in place while remanding the cause for compliance
with Rule 604(d).
¶2 I. BACKGROUND
¶3 In March 2019, a grand jury returned a two-count indictment against defendant. Count I
charged defendant with possession with intent to deliver 1 or more but less than 15 grams of heroin,
a Class 1 felony. Count II charged him with possession of heroin (720 ILCS 570/402(c) (West
2018)), a Class 4 felony. Additionally, the indictment alleged that defendant was subject to Class
X sentencing based on his prior criminal history.
¶4 On January 13, 2020, the parties had a conference with the trial court pursuant to Illinois
Supreme Court Rule 402(d) (eff. July 1, 2012). Following the conference, the State announced that
the parties had reached an agreement under which defendant would plead guilty to count I of the
indictment in exchange for a sentence of eight years’ imprisonment followed by a three-year term
of mandatory supervised release. The State asserted that defendant was subject to mandatory Class
X sentencing (730 ILCS 5/5-4.5-95(b) (West 2020) based on a 1983 Indiana burglary conviction
and two 2003 federal convictions of drug distribution. The State suggested, but was not certain,
that the federal convictions were equivalent to Class 1 felonies under Illinois law. The trial court
continued the matter for the State to do further research on the issue. When the court reconvened,
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2021 IL App (2d) 200379the parties announced that they no longer had a plea agreement and that defendant would enter an
open plea to count I. After appropriately admonishing defendant, the court accepted his plea of
guilty.
¶5 At the sentencing hearing, the State clarified defendant’s criminal history to support its
claim that he was subject to mandatory Class X sentencing. The State noted that, in 2003,
defendant had pled guilty to two counts of use of a communication facility to distribute a cocaine
base (facilitation of distribution) (21 U.S.C. § 843(b) (2000)). The assistant United States attorney
who had prosecuted defendant’s federal case testified to explain the federal convictions. He agreed
that, to support a conviction of facilitation of distribution, “there had to be some showing that there
was some narcotics either distributed and/or possessed with the intent to distribute.”
¶6 The trial court found that defendant was eligible for mandatory Class X sentencing based
on the Indiana burglary conviction and the federal convictions of facilitation of distribution. The
court agreed with the State that facilitation of distribution contained elements similar to unlawful
delivery of a controlled substance or possession with intent to deliver a controlled substance, which
were at least Class 2 felonies under Illinois law. Accordingly, the court sentenced defendant to 8½
years’ imprisonment.
¶7 Defendant moved for reconsideration of his sentence, asserting that (1) the court erred in
deeming his federal convictions as predicate felonies for mandatory Class X sentencing, (2) the
court erred in imposing a sentence six months longer than the recommended sentence it found
acceptable at the Rule 402 conference (see Ill. S. Ct. R. 402 (eff. July 1, 2012)), and (3) his sentence
was excessive under the relevant factors. Counsel did not file a Rule 604(d) certificate. The court
rejected defendant’s argument that Class X sentencing was inappropriate, but it nevertheless
reduced defendant’s sentence to eight years’ imprisonment. Defendant timely appealed.
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2021 IL App (2d) 200379¶8 II. ANALYSIS
¶9 On appeal, defendant contends that, because defense counsel failed to file a Rule 604(d)
certificate in conjunction with the motion to reconsider the sentence, we must remand the matter
for new postplea proceedings. He further asks that we decline to vacate the partial grant of his
motion to reconsider the sentence, so that the sentence reduction will stand unless, upon remand,
he pursues another motion to reduce the sentence or a motion to withdraw the plea. Thus, he
contends that his sentence reduction should be vacated only in the trial court and then only if he
seeks further relief. He cites Strawder as authority for our “leav[ing] intact the trial court’s ruling
on his motion to reconsider sentence, allowing [him] to determine on remand what motion or
motions he should file.” He says:
“It makes sense, when a post-plea motion filed by a defendant has been denied
***[,] for the reviewing court to vacate the denial of relief and give the defendant the
opportunity to relitigate that motion. The same considerations are not at play, however,
where a defendant has obtained relief on a post-plea motion. Here, [the court] granted
[defendant] some sentencing relief at the post-plea hearing, although perhaps not to the
extent [he] hoped. As a result, he may wish to re-litigate the sentencing issues on remand,
in which event it would then be appropriate for the judge to vacate her earlier ruling on his
motion. [Defendant] may also decide, however, that he does not want to relitigate that
motion and instead wants to file only a motion to withdraw his plea, standing on the
sentencing relief he was granted. Since which option or options to exercise are ‘entirely up
to him,’ it would be inappropriate to vacate on appeal a ruling that was favorable to him,
thereby not only depriving him of the benefit of that ruling, but forcing him to relitigate a
motion on which he is satisfied with the result.”
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2021 IL App (2d) 200379¶ 10 Defendant further argues that the trial court erred in deeming his federal convictions
equivalent to Class 2 or greater felonies. He asks that, in remanding the cause, we instruct the court
that those prior convictions are not a basis for Class X sentencing.
¶ 11 The State, in response, agrees that the cause must be remanded for Rule 604(d) compliance.
Next, citing People v. Herrera, 2012 IL App (2d) 110009, ¶ 15, it contends that, because the cause
must be remanded for such compliance, we should not decide whether defendant was subject to
mandatory Class X sentencing. Alternatively, it argues that the trial court correctly determined that
Class X sentencing was mandatory. Finally, the State argues that Strawder is distinguishable
because, though in that case we left the defendant’s sentence reduction in place, we reversed—for
Rule 604(d) noncompliance—the denial of his motion to withdraw his plea. See Strawder, 374 Ill.
App. 3d at 340-41. By contrast, the State notes, defendant would have us enforce Rule 604(d) here
while leaving the underlying judgment entirely intact. The State claims that such relief would be
illogical, citing People v. Bernard, 2014 IL App (2d) 130924, ¶ 10.
¶ 12 In reply, defendant argues that the vacatur of his sentence reduction would penalize him
for his attorney’s error in failing to comply with Rule 604(d). Defendant notes that he might choose
on remand to file only a motion to withdraw the plea and that such motion might not succeed,
which would leave his original sentence in place. He further argues that Bernard is distinguishable
based on the factual context of its holding.
¶ 13 Rule 604(d) states, in relevant part:
“No appeal shall be taken upon a negotiated plea of guilty challenging the sentence
as excessive unless the defendant, within 30 days of the imposition of sentence, files a
motion to withdraw the plea of guilty and vacate the judgment. ***
***
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2021 IL App (2d) 200379*** The defendant’s attorney shall file with the trial court a certificate stating that
the attorney has consulted with the defendant either by phone, mail, electronic means or in
person to ascertain defendant’s contentions of error in the sentence and the entry of the
plea of guilty, has 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, and has made any
amendments to the motion necessary for adequate presentation of any defects in those
proceedings.” Ill. S. Ct. R. 604(d) (eff. July 1, 2017).
¶ 14 Here, counsel did not file the required certificate. “[T]he remedy for failure to strictly
comply with each of the provisions of Rule 604(d) 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). Thus, a remand is necessary. The remaining issues are
whether we should (1) address the classification of defendant’s federal convictions and (2) vacate
the sentence reduction along with remanding the case.
¶ 15 We decline to grant defendant’s request that we rule on the substantive sentencing issue.
To do so would be premature given that defendant has not yet had the opportunity to file a proper
postsentencing motion. In the past, we have sometimes said that filing a Rule 604(d) certificate is
a condition precedent to a hearing on a postplea motion such that its absence renders the ruling on
the motion a nullity—even void. See, e.g., People v. Carroll, 375 Ill. App. 3d 162, 163 (2007)
(collecting cases). We need not accept the full implications of that analysis to conclude that a
postplea motion filed without a Rule 604(d) certificate is not a proper predicate under Rule 604(d)
for an appeal after a guilty plea. If we address the proper classification of defendant’s federal
convictions, we effectively treat this appeal as a full appeal on the merits. That treatment is
appropriate only if we assume that the sentencing issue was properly developed in the trial court.
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2021 IL App (2d) 200379This assumption is not consistent with a remand to require a Rule 604(d) certificate. Therefore, we
do not address the proper classification of defendant’s federal convictions.
¶ 16 On the remaining issue, defendant argues that, under Strawder, we may let stand the
favorable ruling on his motion for reconsideration of his sentence. In Strawder, the defendant
entered a nonnegotiated guilty plea to two charges. Strawder, 374 Ill. App. 3d at 338. He later filed
separate motions to withdraw his guilty plea and to reconsider his sentence. Id. The trial court
denied his motion to withdraw the plea but reduced the sentence on one of the convictions. Id. On
appeal, we held that, because counsel’s Rule 604(d) certificate was deficient, it was necessary to
reverse the ruling on the motion to withdraw the guilty plea and remand “for a new motion and a
new hearing.” Id.at 340. However, we did not disturb the ruling on the motion to reconsider his
sentence:
“Defendant did obtain a measure of relief on his motion to reconsider his sentence, in that
the trial court reduced defendant’s 8½-year sentence for his conviction of disarming a
peace officer to 7 years. If defendant is satisfied with the relief obtained, the order on that
motion may stand despite the absence of a proper Rule 604(d) certificate. [Citation.]
Defendant is entitled, however, to file a new motion to reconsider his sentence. [Citation.]
If he elects to do so, the trial court must vacate its order reducing defendant’s sentence and
hold a hearing on defendant’s new motion.” Id. at 340-41.
¶ 17 The State argues that, in distinction to Strawder, defendant appeals from a single order—
the partial grant of his motion to reconsider his sentence. The State suggests that to let the sentence
reduction stand would be inconsistent with our holding in Bernard. In Bernard, the defendant
entered an unconditional guilty plea to two charges and was sentenced. Bernard, 2014 IL App (2d)
130924, ¶ 5. Later, he moved for reduction of his sentence. Id. After retaining new counsel, the
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2021 IL App (2d) 200379defendant also filed a motion to withdraw his plea. Id. ¶ 6. The defendant filed no Rule 604(d)
certificate in conjunction with either motion. Id. ¶ 7. The trial court reduced the defendant’s
sentence, but it denied the motion to withdraw the plea. Id. ¶ 6. The defendant appealed both
orders. Id. In the appellate court, the defendant “requested an immediate remand for Rule 604(d)
compliance with leave to refile a notice of appeal.” Id. ¶ 7. We “entered an order granting the
motion and remanding the cause to the trial court for Rule 604(d) compliance.” Id. On remand,
counsel filed an “amended” motion to withdraw the plea or reconsider the sentence; counsel filed
a Rule 604(d) certificate in conjunction with that motion. Id. ¶ 8. The trial court (1) ruled that it
lacked jurisdiction to address the motion to withdraw the plea and (2) denied the motion to
reconsider the sentence, noting that it had previously addressed such a motion and that no new
matter had been presented. Id.
¶ 18 The defendant appealed again, and we concluded that the trial court had misinterpreted the
purpose of our Rule 604(d) remand. Id. ¶¶ 11-12. The court apparently assumed that it was
addressing the amended motion as if the ruling on the original motions had not been vacated in the
prior appeal and the cause remanded for the filing of new motions (if necessary). Id. It was in this
context that we made the remarks on which the State relies here. In full, we stated:
“Our supreme court has held that the appropriate remedy for defense counsel’s
failure to file a Rule 604(d) certificate is:
‘a remand for (1) the filing of a Rule 604(d) certificate; (2) the opportunity to file a
new motion to withdraw the guilty plea and/or reconsider the sentence, if counsel
concludes that a new motion is necessary; and (3) a new motion hearing.’
[Citation.]
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2021 IL App (2d) 200379It is axiomatic that, when this court remands a cause for the filing of a new motion (if
necessary) and a hearing on a new motion, the order that is the subject of the appeal is
vacated. An order that is left intact does not require a remand for further proceedings. A
vacated judgment is nullified, canceled, and void. [Citation.] Thus, the trial court’s August
15, 2012, order denying defendant’s motion to withdraw the guilty plea and granting in
part the motion to reconsider the sentence was vacated when this court issued its summary
remand ***. It is also axiomatic that amended pleadings supersede prior pleadings.
[Citation.] Defense counsel apparently concluded ‘that a new motion is necessary’
[citation] and clearly took advantage of the opportunity to file a new motion, to both
withdraw the guilty plea and reconsider the sentence. Thus, defendant’s prior motions to
withdraw the plea and reconsider the sentence were superseded by her combined motion
after remand.” Id. ¶ 10.
¶ 19 In Bernard, we concluded that the summary remand order implicitly vacated the denial
orders. But we did not address what we may do explicitly in a remand for Rule 604(d) compliance.
Affirming a judgment but remanding the cause to allow some action to benefit a defendant is not
a frequent disposition, but it occurs. See, e.g., People v. Hatter, 2021 IL 125981, ¶ 41; People v.
Sherman, 2020 IL App (1st) 172162, ¶¶ 57-5. We, therefore, conclude that we have the authority
to follow Strawder here.
¶ 20 Following Strawder is also the fairer approach. The State suggests that if defendant was
satisfied with the eight-year sentence, he should not have appealed. The State suggests that
defendant is trying “to have his cake and eat it, too.” Given that we have concluded that we cannot
address the merits of defendant’s sentencing claim in the absence of a valid Rule 604(d) certificate,
we do not agree. Had counsel filed a valid certificate, defendant could have obtained a ruling on
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2021 IL App (2d) 200379his sentencing claim without relinquishing his sentence reduction. We see no reason that defendant
should be penalized for counsel’s oversight.
¶ 21 We note that, for purposes of proceedings on remand, the principles underlying section 5-
5-4(a) of the Unified Code of Corrections (730 ILCS 5/5-5-4(a) (West 2020)) are applicable here.
Section 5-5-4(a) provides:
“Where a conviction or sentence has been set aside on direct review ***, the court shall
not impose a new sentence for the same offense *** which is more severe than the prior
sentence less the portion of the prior sentence previously satisfied unless the more severe
sentence is based upon conduct on the part of the defendant occurring after the original
sentencing.” 730 ILCS 5/5-5-4(a) (West 2020).
Because we are not setting aside defendant’s sentence, section 5-5-4(a) cannot have any direct
application here. But the purpose of the section is to “prevent[ ] vindictiveness in resentencing a
defendant for having exercised his appeal rights or his right to file a post-judgment motion.” People
v. Woolsey, 278 Ill. App. 3d 708, 710 (1996). This current appeal is in the service of allowing
defendant to file a full appeal. Further, if defendant seeks to have the trial court vacate its ruling
on his motion to reconsider the sentence, that also will be in the service of exercising his appeal
rights. On remand, should defendant again seek reconsideration of his sentence, the trial court
should follow the principles of section 5-5-4(a).
¶ 22 III. CONCLUSION
¶ 23 For the reasons stated, we remand the cause to the circuit court of Kane County for
compliance with Rule 604(d). Defendant may file a motion to withdraw his plea if he so chooses.
If defendant wishes to file a new motion to reconsider the sentence, we direct the court to vacate
its ruling on the original motion and allow him to do so.
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2021 IL App (2d) 200379¶ 24 Cause remanded with directions.
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2021 IL App (2d) 200379No. 2-20-0379
Cite as: People v. Merriweather, 2021 IL App (2d) 200379Decision Under Review: Appeal from the Circuit Court of Kane County, No. 18-CF-2433;
the Hon. Alice C. Tracy, Judge, presiding.
Attorneys James E. Chadd, Thomas A. Lilien, and Josette Skelnik, of State
for Appellate Defender’s Office, of Elgin, for appellant.
Appellant:
Attorneys Jamie L. Mosser, State’s Attorney, of St. Charles (Patrick
for Delfino, Edward R. Psenicka, and Victoria E. Jozef, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
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