People v. Smith , 2021 IL App (1st) 173115-U ( 2021 )

2021 IL App (1st) 173115-UNo. 1-17-3115
Order filed October 25, 2021
First Division
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. 09 CR 10062
)
JIMMIE SMITH, ) Honorable
) William T. O’Brien,
Defendant-Appellant. ) Judge, presiding.
JUSTICE WALKER delivered the judgment of the court.
Justices Pucinski and Coghlan concurred in the judgment.
ORDER
¶1 Held: The matter is remanded for compliance with Illinois Supreme Court Rule 604(d).
¶2 Defendant Jimmie Smith entered a blind plea of guilty to four counts of aggravated
criminal sexual assault (720 ILCS 5/12-14(a)(4), (8) (West 2008)) and was sentenced to a total of
110 years’ imprisonment. He appeals, arguing that counsel did not comply with Illinois Supreme
Court Rule 604(d) (eff. July 1, 2017), and that the trial court delivered improper admonishments
No. 1-17-3115
under Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001). We remand for compliance with
Rule 604(d).
¶3 I. BACKGROUND
¶4 Defendant was indicted on multiple charges, including four counts of aggravated criminal
sexual assault, following an incident on May 9 and 10, 2009. The indictment alleged generally that
defendant kidnapped and assaulted four victims, two of whom were younger than 18 years old.
¶5 The office of the Public Defender of Cook County initially represented defendant, but the
trial court permitted it to withdraw on December 15, 2014, after defendant assaulted counsel. On
December 17, 2015, the court designated the public defender’s office as “stand-by counsel,” and
officially reappointed it on March 14, 2016.
¶6 On March 15, 2016, defendant agreed to enter a blind plea to four charges of aggravated
criminal sexual assault in exchange for dismissal of the remaining charges. The court accepted the
plea and continued the matter for sentencing.
¶7 Both defendant and the new public defender filed motions to withdraw the plea prior to
sentencing. Counsel’s motion also requested leave to withdraw from representation because of a
conflict of interest related to defendant’s assault of the previous public defender.
¶8 On June 22, 2016, the court removed the new public defender and appointed pro bono
counsel, who filed an amended motion to withdraw plea and a Rule 604(d) certificate on October
27, 2016. The trial court denied the amended motion on June 29, 2017.
¶9 Following a hearing on September 26, 2017, the court imposed four consecutive prison
terms, comprising two 30-year terms and two 25-year terms, for a total sentence of 110 years.
Defendant elected to remain in the lockup during the hearing, and when the court directed pro
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bono counsel to ask defendant whether he wanted to be present for post-sentencing
admonishments, counsel reported back that defendant declined. The court then recited post-
sentencing admonishments.
¶ 10 On October 18, 2017, through pro bono counsel, defendant filed a motion to reconsider his
sentence. Counsel did not file a new Rule 604(d) certificate. The court modified the fines and fees
order and otherwise denied the motion on October 24, 2017. That same day, defendant filed a
notice of appeal stating that he appealed from the “[d]isposition” entered on October 24, 2017.
¶ 11 On May 18, 2021, we took this case on appellant’s brief only. See First Capitol Mortgage
Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 131-33 (1976).
¶ 12 II. ANALYSIS
¶ 13 On appeal, defendant first argues remand is necessary because pro bono counsel failed to
follow Rule 604(d)’s certification requirements or refile the motion to withdraw plea following
sentencing.
¶ 14 Prior to appealing from a guilty plea, a defendant must file in the trial court within 30 days
of sentencing “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.” Ill.
S. Ct. R. 604(d) (eff. July 1, 2017). Rule 604(d) further requires defense counsel to file with the
court a certification that he consulted with the defendant to ascertain any contentions of error
regarding both his sentence and plea, examined the trial court file and report of proceedings, and
made any necessary amendments to the motion. Id. Where a defendant files a motion to withdraw
plea before sentencing, he must then refile the motion to withdraw plea within 30 days of
sentencing, and counsel must file a new Rule 604(d) certificate. See People v. Marquez, 2012 IL
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App (2d) 110475, ¶¶ 4, 8. Rule 604(d) requires strict compliance, and the failure to so comply
requires remand to the trial court. People v. Easton, 2018 IL 122187, ¶ 26. We review de novo
whether counsel complied with Rule 604(d). Id.¶ 15 Here, the public defender who represented defendant when he pleaded guilty filed a motion
to withdraw plea prior to sentencing. On June 22, 2016, pro bono counsel filed an amended motion
to withdraw plea and a Rule 604(d) certificate. The trial court denied the amended motion on June
29, 2017. Following sentencing, pro bono counsel filed a motion to reconsider sentence, but did
not file a new Rule 604(d) certificate. Thus, counsel did not strictly comply with Rule 604(d). See
Marquez, 2012 IL App (2d) 110475, ¶¶ 4, 8. The proper remedy is remand for new post-plea
proceedings, “including (1) the filing of a new Rule 604(d) certificate; (2) the opportunity to file a
new motion to withdraw the guilty plea and/or reconsider the sentence,” if necessary, “and (3) a
new motion hearing.” Easton, 2018 IL 122187, ¶ 37.
¶ 16 Because we conclude that remand is appropriate based on counsel’s failure to strictly
comply with Rule 604(d), we need not address defendant’s argument regarding the trial court’s
Rule 605(b) admonishments.
¶ 17 III. CONCLUSION
¶ 18 For the foregoing reasons, the matter is remanded for compliance with Rule 604(d).
¶ 19 Remanded with instructions.
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