People v. Mann ( 2020 )

2020 IL App (5th) 170027-U NOTICE
NOTICE
Decision filed 05/15/20. The This order was filed under
text of this decision may be NO. 5-17-0027 Supreme Court Rule 23 and
changed or corrected prior to may not be cited as precedent
the filing of a Petition for by any party except in the
Rehearing or the disposition of
IN THE
limited circumstances allowed
the same.
under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Jackson County.
)
v. ) No. 12-CF-730
)
JASON W. MANN, ) Honorable
) William G. Schwartz,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE OVERSTREET delivered the judgment of the court.
Justices Barberis and Wharton concurred in the judgment.
ORDER
¶1 Held: Where the defendant’s three pro se motions were plainly untimely or
meritless, and there would be no merit to any argument that the circuit court
had erred in denying those motions, the defendant’s court-appointed attorney
on appeal is granted leave to withdraw as counsel, and the judgment of the
circuit court is affirmed.
¶2 The defendant, Jason W. Mann, appeals from an order of the circuit court of Jackson
County denying three pro se motions relating to his guilty plea or to his prison sentence. The
defendant’s court-appointed attorney on appeal, the Office of the State Appellate Defender
(OSAD), has concluded that this appeal lacks merit, and on that basis OSAD has filed a motion
for leave to withdraw as counsel, pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), and
People v. Lee, 251 Ill. App. 3d 63 (1993), along with a brief in support of the motion. OSAD
served the defendant with proper notice and with a copy of its motion and brief. This court gave
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the defendant ample opportunity to respond to OSAD’s motion by filing with this court a pro se
brief, memorandum, etc., in support of his appeal, but the defendant has not filed any type of
response. Having examined OSAD’s motion and brief, as well as the entire record on appeal, this
court agrees with OSAD that this appeal lacks merit. Accordingly, OSAD is granted leave to
withdraw as counsel on appeal, and the judgment of the circuit court of Jackson County is affirmed.
¶3 BACKGROUND
¶4 In late 2012, the State charged the defendant with aggravated arson (720 ILCS 5/20-
1.1(a)(1) (West 2012)), a Class X felony, and tampering with a fire safety system (720 ILCS 5/17-
11.5(a) (West 2012)), a Class 4 felony. On August 9, 2013, the defendant, his attorney, and an
assistant state’s attorney appeared in court. The defendant indicated that he wanted to plead guilty
to aggravated arson, pursuant to a plea agreement. The court informed the defendant that
aggravated arson was a nonprobationable offense punishable by imprisonment for 6 to 30 years,
and that the prison sentence “carries with it a mandatory supervised release time of a three-year
period.” The defendant signed a written “plea of guilty,” which indicated that he was “knowingly
and understandingly” entering a negotiated plea of guilty to aggravated arson. In response to a
query from the court, the defendant indicated that he understood the guilty-plea form. The State
recited a factual basis for the plea. The State also informed the court that the defendant did not
have any prior convictions, and that he had been honorably discharged from the United States
military. The parties waived preparation of a presentence investigation report. The court stated
that it would “affirm the agreement” in the case and sentenced the defendant to imprisonment for
a term of seven years. The court also informed the defendant that he would “serve 85% of the
time,” that he would receive credit for the 239 days that he spent in the county jail prior to
sentencing, and that “[u]pon [his] release” from prison he would be required to serve 3 years of
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mandatory supervised release. The defendant, in response to the court’s query, indicated that he
did not have any questions about the sentence imposed. The court then informed the defendant
that if he “[felt] aggrieved in any way,” he had 30 days in which to file a motion for leave to
withdraw his guilty plea. The court entered a written judgment.
¶5 On December 11, 2013, the defendant filed a pro se “motion for order nunc pro tunc,”
wherein he claimed that he was statutorily entitled to additional days of sentence credit by virtue
of his presentencing incarceration in the county jail and his good behavior during that
presentencing incarceration. On December 20, 2013, the court entered a docket-entry order
denying the motion and stating that the motion was without merit because the defendant already
had received the correct credit for his presentencing incarceration. On January 9, 2014, the
defendant filed a pro se “motion to object,” wherein he acknowledged the order denying his
“motion for order nunc pro tunc” but repeated his request for additional days of sentence credit.
However, the defendant did not appeal from the denial order.
¶6 On July 17, 2015, the defendant filed (1) a pro se “petition for order nunc pro tunc county
jail good behavior allowance,” wherein he again claimed that he was entitled to an additional 239
days of sentence credit, and (2) a pro se “motion to correct the mittimus,” wherein he asked the
circuit court to “issue a corrected mittimus to reflect an additional 239 days of presentence confine
time.” On July 22, 2015, the court made this docket entry, apparently in reference to the pro se
petition and the pro se motion: “Noted and issue has previously been denied.” The defendant
appealed. This court affirmed the order denying the pro se petition and motion. See People v.
Mann, No. 5-15-0372 (Jan. 14, 2020) (unpublished summary order under Illinois Supreme Court
Rule 23(c)).
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¶7 On November 17, 2015, the defendant filed, by counsel, a petition for postconviction relief.
He claimed that (1) his guilty plea was not knowing and voluntary, for trial counsel failed to inform
him, prior to the plea hearing, that his plea agreement included three years of mandatory supervised
release, and (2) trial counsel provided ineffective assistance (i) by failing to file a motion to
suppress the defendant’s statements to police interrogators and (ii) by failing to inform the
defendant, prior to the defendant’s signing the written plea of guilty, that the plea agreement
included three years of mandatory supervised release. The defendant asserted that if he had been
aware of the mandatory-supervised-release requirement, he would not have accepted the plea offer
and would have insisted on going to trial. On April 18, 2016, the court held an evidentiary hearing
on the defendant’s postconviction petition. The defendant was the only witness. At the conclusion
of the hearing, the court denied the defendant’s postconviction petition. The defendant did not
appeal from the denial order.
¶8 On November 28, 2016—approximately 3¼ years after the guilty plea and sentencing
herein—the defendant placed into the prison mail system the three pro se motions that are the
subject of the instant appeal. The clerk of the circuit court file-stamped the three motions on
December 1, 2016. The three motions can be summarized as follows:
(1) In a pro se motion to withdraw guilty plea, styled a “late petition to withdraw
guilty plea and vacate sentence,” the defendant stated that (i) he “attempted to assert two
grounds for relief in a post-conviction, which were denied, petitioner did not appeal,”
(ii) he was “not allowed the opportunity to withdraw plea” due to a lockdown at Menard
Correctional Center, and (iii) “the factors in mitigation were never applied in this case.”
(2) In a pro se motion to reduce sentence, styled as a “late motion for reduction of
sentence,” the defendant stated that a reduction in his seven-year prison sentence was
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appropriate because he personally extinguished the fire, the fire did not harm anyone, “[t]he
police report was never brought into question, defendants’ [sic] attorney was not effective
counsel, fundamental principles of Due Process and Equal Protection clause of Fourteenth
Amendment were not asserted in proceedings, and the term imposed is cruel and unusual.”
(3) In a pro se motion to amend the mittimus, styled as a “petition to correct
mittimus,” the defendant referred to “the mittimus issued on [August 9, 2013],” which was
the date of sentencing. The defendant first suggested that he had not received all of the
sentence credits to which he was statutorily entitled by virtue of his presentencing
incarceration in the county jail and his good behavior during that presentencing
incarceration. On this point, the defendant apparently attempted to cite the County Jail
Good Behavior Allowance Act (730 ILCS 130/1 et seq. (West 2012)). The defendant also
suggested that he had been deprived of “due process” through the “ineffective assistance
of [plea] counsel,” who had failed to inform the sentencing court that the defendant, after
being honorably discharged from the United States military, had enlisted in the Illinois
National Guard. The defendant also stated that during his presentencing incarceration at
the county jail, he was assaulted by a federal detainee who was represented, at that time,
by the same attorney who represented the defendant.
¶9 On December 6, 2016, the circuit court entered a docket-entry order stating that all three
of the defendant’s pro se motions were “denied.” The order did not state a rationale for the denial.
The defendant perfected the instant appeal.
¶ 10 ANALYSIS
¶ 11 The defendant appeals from the circuit court’s order denying three pro se motions, viz.: a
motion to withdraw guilty plea, a motion to reduce sentence, and a motion to amend the mittimus.
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As previously mentioned, the defendant’s court-appointed attorney on appeal, OSAD, has
concluded that this appeal lacks merit, and it has filed a Finley motion to withdraw as counsel,
along with a brief in support of that motion. The defendant has not filed with this court any sort
of response to OSAD’s Finley motion.
¶ 12 This court begins its analysis of this case by noting that this appeal is not from the dismissal
or denial of a petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.
(West 2018)) or some other petition collaterally attacking the judgment of conviction. Instead,
this appeal is from an order denying postplea, postsentencing motions. Therefore, OSAD should
not have filed its motion to withdraw as counsel pursuant to Finley, but instead should have filed
the motion pursuant to Anders v. California, 386 U.S. 738 (1967). OSAD, however, did meet the
more rigorous requirements of Anders, supplying this court with a brief that refers to items in the
record that might arguably support this appeal and refers to legal authorities. See Anders, 386 U.S.
at 744-45. The combination of OSAD’s brief and this court’s independent and thorough
examination of the record on appeal gives this court confidence in proceeding to consider this
appeal. The Finley motion will simply be treated as an Anders motion.
¶ 13 In the brief filed in support of its motion to withdraw as counsel, OSAD discusses two
potential issues in this appeal, viz.: (1) whether the circuit court erred in denying the defendant’s
late motions to withdraw guilty plea and to reduce sentence, and (2) whether the defendant stated
a meritorious claim in his motion to amend the mittimus. OSAD concludes that neither issue has
merit. This court agrees with that assessment.
¶ 14 The issue of whether the circuit court erred in denying the defendant’s motions to withdraw
guilty plea and to reduce sentence is a strictly legal issue, and not one involving contested facts or
witness credibility, and therefore this court reviews the issue de novo. See, e.g., In re D.G., 144
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Ill. 2d 404, 408-09 (1991). (OSAD did not suggest a standard of review for this issue, either in its
motion to withdraw as counsel or in its supporting brief.)
¶ 15 The defendant certainly was aware that his motion to withdraw guilty plea and his motion
to reduce sentence were untimely. He styled his motions as a “late petition to withdraw guilty plea
and vacate sentence” and a “late motion for reduction of sentence,” including the word “late” in
each motion’s caption.
¶ 16 If the defendant wanted to withdraw his plea of guilty, he needed to file a motion to that
effect within 30 days after the imposition of sentence, i.e., within 30 days after August 9, 2013.
See Ill. S. Ct. R. 604(d) (eff. Jan. 1, 2013); People v. Flowers, 208 Ill. 2d 291, 300 (2003) (absent
an extension of time granted by the circuit court prior to the expiration of the 30-day deadline, a
motion to withdraw a guilty plea or to reduce a sentence must be filed within the 30-day period
specified in Rule 604(d)). The defendant herein missed the 30-day deadline, and by more than 3
years. Because the defendant’s motion to withdraw guilty plea was untimely filed, the circuit court
had lost jurisdiction, or authority, to consider the motion on the merits. See People ex rel. Alvarez
v. Skryd, 241 Ill. 2d 34, 40-41 (2011). Likewise, this court is precluded from considering the
merits. See Flowers, 208 Ill. 2d at 301.
¶ 17 As for the defendant’s motion to reduce sentence, it too needed to be filed within 30 days
after the sentence was imposed, under Rule 604(d) and section 5-4.5-50(d) of the Unified Code of
Corrections (730 ILCS 5/5-4.5-50(d) (West 2012)), but it was filed far beyond the deadline. As
with the motion to withdraw guilty plea, the circuit court had long since lost jurisdiction to consider
the merits, and this court likewise is precluded from considering the merits. See Skryd, 241 Ill. 2d
at 40; Flowers, 208 Ill. 2d at 301. Furthermore, a motion to reduce sentence was not an appropriate
motion in this case, wherein the defendant pleaded guilty pursuant to a fully negotiated plea
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agreement with the State, i.e., an agreement as to the charges and as to the sentence. A defendant
who pleads guilty pursuant to a fully negotiated guilty plea may not seek to reduce his agreed-
upon sentence while holding the State to its part of the bargain. People v. Evans, 174 Ill. 2d 320,
327 (1996). Therefore, even if the motion to reduce sentence had been timely filed, the circuit
court would not have been able to consider the motion’s merits, and this court, too, would have
been precluded from considering the merits. See People v. Linder, 186 Ill. 2d 67, 74 (1999).
¶ 18 The other potential issue discussed by OSAD is the issue of whether the defendant stated
a meritorious claim in his motion to amend the mittimus, which he styled as a “petition to correct
mittimus.” This issue, too, is a strictly legal issue that is subject to de novo review. See In re D.G.,
144 Ill. 2d at 408-09. (OSAD did not suggest a standard of review for this issue, either.) In the
instant case, no separate mittimus was issued; therefore, the sentencing judgment constitutes the
mittimus in this case. See 735 ILCS 5/2-1801(a) (West 2018). The only proper purpose of a
motion to amend a mittimus is to correct clerical errors or nonsubstantial matters of inadvertence
or mistake. People v. Scheurich, 2019 IL App (4th) 160441, ¶¶ 19-21. A motion to amend a
mittimus is not a vehicle for seeking the substantive amendment of a sentencing judgment.
Scheurich, 2019 IL App (4th) 160441, ¶¶ 20-21.
¶ 19 Much of the defendant’s “petition to correct mittimus”—with its references to “due
process” and “ineffective assistance of counsel,” as well as its reference to being “attacked by a
federal detainee *** while in the custody of the Jackson County Jail”—clearly did not address any
clerical error or nonsubstantial matter of inadvertence or mistake. As for the claim that the
defendant was entitled to additional days of sentence credit, the defendant relied entirely on a
citation to the County Jail Good Behavior Allowance Act (730 ILCS 130/1 et seq. (West 2012)).
However, that particular statutory scheme concerns the awarding of a good-behavior allowance to
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a criminal defendant who is sentenced to confinement in a county jail. See 730 ILCS 130/3 (West
2012). The defendant herein was not sentenced to confinement in a county jail; he was sentenced
to imprisonment in the Illinois Department of Corrections, and was held in the county jail only as
he awaited trial. The County Jail Good Behavior Allowance Act does not have any application to
the instant case. The defendant did not state a meritorious claim in his motion to amend the
mittimus.
¶ 20 CONCLUSION
¶ 21 The defendant’s motion to withdraw guilty plea and motion to reduce sentence were filed
long after the filing deadline, and therefore long after the circuit court had lost subject-matter
jurisdiction. The court would not have had the authority to consider the merits of either motion.
The defendant’s motion to amend the mittimus failed to state a meritorious claim. None of these
conclusions can reasonably be disputed. Accordingly, OSAD is granted leave to withdraw as
counsel for the defendant in this appeal, and the judgment of the circuit court is affirmed.
¶ 22 Motion granted; judgment affirmed.
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