People v. Lima , 2024 IL App (4th) 230490-U ( 2024 )

NOTICE 2024 IL App (4th) 230490-U FILED
This Order was filed under July 19, 2024
Supreme Court Rule 23 and is NO. 4-23-0490 Carla Bender
not precedent except in the
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. ) McLean County
ROBERTO ARTURO LIMA, ) No. 21CF1278
Defendant-Appellant. )
) Honorable
) William A. Yoder,
) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court.
Presiding Justice Cavanagh and Justice DeArmond concurred in the judgment.
ORDER
¶1 Held: The trial court’s order was vacated and the matter remanded for further proceedings
where (1) the court erred as a matter of law when it dismissed defendant’s motion
to withdraw his guilty plea for lack of jurisdiction and (2) defense counsel failed to
strictly comply with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017).
¶2 Defendant, Roberto Arturo Lima, pleaded guilty to criminal sexual assault (720
ILCS 5/11-1.20(a)(1) (West 2020)), and the trial court sentenced him to 14 years and 10 months
in prison. Defendant filed a timely pro se motion to reconsider his sentence. Thereafter, defense
counsel filed an appearance, an amended motion to reconsider the sentence, and a motion to
withdraw the guilty plea. The court dismissed defendant’s motion to withdraw the guilty plea,
finding it lacked jurisdiction to hear the motion as it was untimely, and denied defendant’s
amended motion to reconsider the sentence. Defendant appeals. We vacate the court’s order and
remand for further proceedings.
¶3 I. BACKGROUND
¶4 The State charged defendant by information with criminal sexual assault (count I)
(720 ILCS 5/11-1.20(a)(1) (West 2020)) and criminal sexual abuse (count II) (720 ILCS 5/11-
1.50(a)(1) (West 2020)). Defendant entered into an open guilty plea agreement wherein he pleaded
guilty to count I and, in exchange, the State dismissed count II.
¶5 On January 31, 2023, the trial court held a sentencing hearing and sentenced
defendant to 14 years and 10 months in the Illinois Department of Corrections. The court
admonished defendant he had 30 days to ask the court to reconsider its sentence or withdraw his
guilty plea. The next day, defense counsel mailed defendant a letter terminating his representation
and informing defendant he had 30 days to file a motion to reconsider the sentence, which was
required to perfect his appeal. Defense counsel enclosed a template motion.
¶6 On February 21, 2023, defendant filed a pro se motion to reconsider the sentence
with the template motion, arguing his sentence was excessive. That same day, new defense counsel
filed an appearance.
¶7 On March 9, 2023, defense counsel filed an amended motion to reconsider the
sentence and asserted defendant’s sentence was excessive. Defense counsel also filed an
“amended” motion to withdraw the guilty plea, claiming defendant neither fully understood the
consequences of his actions nor considered the ramifications of the plea agreement.
¶8 On April 18, 2023, the State filed a response to the amended motion to withdraw
the guilty plea, arguing (1) the motion was untimely as it was filed more than 30 days after
defendant was sentenced, (2) the plea was knowing and voluntary, and (3) defendant failed to state
a legal basis to allow the withdrawal of his plea or show a manifest injustice had occurred.
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¶9 On June 2, 2023, the trial court held a hearing. The court first addressed counsel’s
amended motion to withdraw the guilty plea. Counsel agreed the word “amended” should be
stricken because defendant never previously filed a motion to withdraw the guilty plea. Counsel
explained she incorrectly believed defendant had filed a motion to withdraw the guilty plea based
on discussions with defendant’s family and she did not have access to the court file at the time she
filed the motion. Counsel also acknowledged defendant had only filed a motion to reconsider the
sentence within 30 days of his sentencing but explained defendant’s previous counsel sent him a
letter stating he needed to file a motion to reconsider the sentence. As to the contents of the motion
to withdraw the guilty plea, counsel stated she ceased her work on that motion until resolution of
the State’s position that the motion was untimely to avoid unnecessarily increasing defendant’s
financial obligations. If the court found the motion to be timely, counsel explained:
“I would be asking for time to file an amended motion based on some information
that I think is going to take an investigator to look into, and the family is aware of
that. They’ve retained the investigator, but we have stopped all work on that to see
how we are going to proceed here today.”
The State stood on its written response and reiterated its position that the motion to withdraw was
untimely. The court found defendant was correctly admonished that he had 30 days to file a motion
to withdraw, which he failed to do. Thus, the court found it was without jurisdiction to address the
motion to withdraw the guilty plea and dismissed the motion.
¶ 10 The trial court then considered defendant’s motion to reconsider. Defense counsel
tendered a Rule 604(d) certificate (see Ill. S. Ct. R. 604(d) (eff. July 1, 2017)), explaining, “I have
reviewed both the transcripts of the plea and of the sentencing. I went through that with my client.
Obviously I haven’t done everything I could with the motion to withdraw guilty plea because it’s
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untimely, but we have discussed his motion to reconsider sentence.” In sum, counsel argued the
court did not give enough weight to the mitigating evidence, as defendant was sentenced to two
months below the maximum sentence. The court found it properly considered the factors in
mitigation before it and denied the motion.
¶ 11 This appeal followed.
¶ 12 II. ANALYSIS
¶ 13 On appeal, defendant argues (1) the trial court erred when it held it lacked
jurisdiction over his motion to withdraw his guilty plea and (2) counsel’s Rule 604(d) certificate
was noncompliant. He asks this court to (1) vacate the court’s judgment with respect to his motion
to withdraw his guilty plea and reconsider the sentence and (2) remand for new Rule 604(d)
proceedings. Alternatively, he argues he was denied the effective assistance of counsel where his
counsel instructed him to participate in a sex offender evaluation and offered the evaluation into
evidence, and the court heavily relied on the evaluation when sentencing him. He asks this court
to vacate his sentence and remand for a new sentencing hearing. The State argues the court lacked
jurisdiction over defendant’s motion to withdraw his guilty plea, defense counsel strictly complied
with Rule 604(d), and defendant did not receive ineffective assistance of counsel.
¶ 14 A. Jurisdiction Over Postplea Motions
¶ 15 When a defendant pleads guilty and seeks to challenge either the plea itself or the
sentence, he must file the appropriate motion before the trial court within 30 days of the date on
which the sentence was imposed. Ill. S. Ct. R. 604(d) (eff. July 1, 2017). If the defendant seeks to
challenge his guilty plea, he must file a motion to withdraw the plea of guilty and vacate the
judgment. Ill. S. Ct. R. 604(d) (eff. July 1, 2017). If the defendant seeks to challenge his sentence,
he must file a motion to reconsider the sentence. Ill. S. Ct. R. 604(d) (eff. July 1, 2017). The
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question presented in this case is whether the trial court has jurisdiction over a motion to withdraw
the guilty plea filed beyond 30 days from sentencing when a timely filed motion to reconsider the
sentence remains pending before it. This jurisdictional issue presents a question of law, which we
review de novo. People v. Marker, 233 Ill. 2d 158, 162 (2009).
¶ 16 Defendant argues, because he filed a timely pro se motion to reconsider his
sentence and it remained pending when defense counsel filed the motion to withdraw his guilty
plea, the trial court had jurisdiction to hear it. Defendant primarily relies on People v. Cook, 2023
IL App (4th) 210621, to support his position. In Cook, 2023 IL App (4th) 210621, ¶ 47, the
defendant filed a timely pro se motion to reconsider the sentence, but it lacked a notice of motion
upon filing. The defendant argued in his motion to reconsider that his sentence was excessive and
the evidence was insufficient to sustain his conviction. Cook, 2023 IL App (4th) 210621, ¶ 12.
Over a year later, counsel filed a motion to withdraw the defendant’s guilty plea, alleging the guilty
plea was made unknowingly and was the product of coercion and the defendant’s sentence was
excessive. Cook, 2023 IL App (4th) 210621, ¶ 14. The court denied the motion. On appeal, the
State argued this court lacked jurisdiction because the defendant failed to file a notice of motion
with his motion to reconsider the sentence. Cook, 2023 IL App (4th) 210621, ¶ 27. We addressed
our jurisdiction over the matter as follows:
“We find that we have jurisdiction to consider the merits of this appeal. The
initial pro se motion to reconsider sentence, filed within 30 days of sentencing, was
timely filed even though no notice of motion accompanied it upon filing. Although
the case sat dormant for a period of over a year because defendant’s attorneys were
unaware of his pro se filing, no objection was filed and the matter went forward.
The motion to withdraw defendant’s guilty plea, filed over 13 months later and
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considered an amendment to the initial pro se motion, was likewise timely. See
People v. Kibbons, 2016 IL App (3d) 150090, ¶ 12 (‘Even though the defendant
filed the wrong motion under Rule 604(d), it was a timely motion directed against
the judgment and tolled the time for appeal under Rule 606(b).’). Defendant
thereafter filed a timely notice of appeal after the denial of his motion to withdraw
his guilty plea.” Cook, 2023 IL App (4th) 210621, ¶ 47.
¶ 17 Here, the State argues Cook is distinguishable because (1) this court in Cook was
concerned with our own jurisdiction to consider the defendant’s argument on appeal and (2) in this
case, “the amended motion to withdraw guilty plea had no relation to the pro se motion to
reconsider sentence, especially since post-plea counsel also filed an amended motion to reconsider
sentence.” The State’s argument is unpersuasive. Although this court discussed postplea motions
within the context of appellate jurisdiction, we nonetheless explained the timeliness of subsequent
postplea motions when a timely postplea motion remained pending before the trial court. See
People v. Jamison, 2024 IL App (4th) 230439-U, ¶ 18 (explaining the trial court had jurisdiction
over the defendant’s motion to withdraw his guilty plea filed 30 days beyond sentencing where a
timely filed motion to reconsider the sentence was already pending before the court). We also note
the State fails to cite any authority to support its position that jurisdiction here would only exist if
the contents of the pending timely postplea motion and the contents of the subsequent postplea
motion are connected.
¶ 18 We emphasize this is not an instance where the trial court had already ruled on the
timely postplea motion and an untimely subsequent postplea motion followed. See People v.
Orahim, 2019 IL App (2d) 170257, ¶ 9 (“[O]nce the trial court entered its final judgment on that
matter and ruled on defendant’s timely motion to reconsider his sentence, it could not exercise
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jurisdiction of defendant’s untimely motion to withdraw his plea.”). Here, defendant filed a timely
pro se motion to reconsider his sentence, and the court retained jurisdiction over the matter.
Counsel then filed a motion to withdraw the guilty plea before the resolution of the pending motion
to reconsider the sentence. Like in Cook, this was a timely amendment or supplement to
defendant’s pro se postplea challenge. See Cook, 2023 IL App (4th) 210621, ¶ 47. Therefore, the
court erred when it found that it lacked jurisdiction over defendant’s motion to withdraw his guilty
plea. See People v. Lopez, 223 Ill. App. 3d 520, 521-22 (1992) (holding when the defendant timely
filed a motion to withdraw the guilty plea, the court retained jurisdiction, and the filing of a motion
to reduce the sentence before the hearing on the motion to withdraw did not affect the court’s
jurisdiction). We also find the cases relied on by the State to be inapposite, as neither involved a
timely postplea motion. See People v. Bailey, 2014 IL 115459, ¶ 8 (addressing the revestment
doctrine when no motion is filed within the 30-day window); People v. Flowers, 208 Ill. 2d 291,
303 (2003) (finding the trial court no longer had authority to address a motion to vacate the
judgment or reconsider the sentence where more than 30 days had elapsed since sentencing). Thus,
the court erred as a matter of law when it dismissed defendant’s motion.
¶ 19 B. Rule 604(d) Certificate
¶ 20 Next, we address counsel’s Rule 604(d) certificate of compliance. We note a
compliant Rule 604(d) certificate is a condition precedent to a hearing on defendant’s motion to
withdraw his guilty plea, and it would be an exercise in futility to remand the matter to the trial
court for a hearing on defendant’s motion to withdraw his guilty plea without first addressing
defendant’s argument that his counsel’s certificate of compliance is deficient. See People v. Porter,
258 Ill. App. 3d 200, 203-04 (1994) (stating when a certificate of compliance is found to be
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noncompliant, the hearing previously held on the motion is a nullity, as it was tainted by the failure
to follow the certificate procedure).
¶ 21 Rule 604(d) directs attorneys in postplea proceedings as follows:
“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).
¶ 22 Rule 604(d) requires strict compliance, and where counsel’s certificate fails to
strictly comply, we must remand the matter to the trial court to allow the defendant the opportunity
to file a new postplea motion and hold a new hearing on the motion. People v. Gorss, 2022 IL
126464, ¶ 19. Where counsel’s certificate facially complies with Rule 604(d), remand may
nonetheless be required if the record shows counsel did not comply with his or her obligations
under that rule. People v. Curtis, 2021 IL App (4th) 190658, ¶ 36. We review de novo counsel’s
compliance with Rule 604(d). Curtis, 2021 IL App (4th) 190658, ¶ 30.
¶ 23 Defendant argues, although defense counsel’s certificate facially complied with
Rule 604(d), the certificate is rebutted by the record. With respect to defendant’s motion to
withdraw his guilty plea, defense counsel explained the motion in its current form was not ready
for presentation and she would seek leave to amend the motion if the trial court resolved the
jurisdictional issue in defendant’s favor. Specifically, she stated the motion omitted information
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relating to defendant’s claim and defendant retained an investigator. We agree with defendant that
this representation rebuts defense counsel’s certificate that she had made any amendments
necessary to the motion for an adequate presentation of any defect in the proceedings. See People
v. Winston, 2020 IL App (2d) 180289, ¶ 15 (finding counsel failed to adequately present defects
in the entry of the plea where counsel orally argued the evidence was insufficient but the claim
was not included in an amended motion supported by affidavits); People v. Bridges, 2017 IL App
(2d) 150718, ¶ 9 (finding counsel had a duty to amend the defendant’s motion and attach an
affidavit to support facts that did not appear of record). Thus, counsel’s certificate is noncompliant.
¶ 24 Defendant also argues, since defense counsel’s facially compliant Rule 604(d)
certificate has been rebutted, there is no assurance that she strictly complied with her obligations
under the rule with respect to the motion to reconsider his sentence, either. We agree. Our
confidence in defense counsel’s strict compliance with Rule 604(d) is undermined by the
aforementioned inadequacy, and new proceedings in strict compliance with Rule 604(d) are
necessary. The proper remedy is to remand the cause to the trial court 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.” People v. Lindsay, 239 Ill. 2d 522, 531 (2011). Finally, as we are remanding the cause
for new Rule 604(d) proceedings, we need not address defendant’s alternative argument.
¶ 25 III. CONCLUSION
¶ 26 For the reasons stated, we vacate the trial court’s order dismissing defendant’s
motion to withdraw his guilty plea and denying his motion to reconsider the sentence and remand
the cause for further proceedings in strict compliance with Rule 604(d).
¶ 27 Vacated and remanded with directions.
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