People v. Lewis

2022 IL App (5th) 220004-UNOTICE
NOTICE
Decision filed 09/06/22. The
This order was filed under
text of this decision may be NO. 5-22-0004
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Peti ion for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Macon County.
)
v. ) No. 17-CF-478
)
DUAN LEWIS, ) Honorable
) Thomas E. Griffith,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE VAUGHAN delivered the judgment of the court.
Presiding Justice Boie and Justice Welch concurred in the judgment.
ORDER
¶1 Held: The trial court lacked jurisdiction of defendant’s “motion to correct mittimus”
when it was filed more than 30 days after defendant’s guilty plea and sought to
change the judgment. Accordingly, we grant OSAD’S motion for leave to withdraw
and dismiss the appeal.
¶2 Defendant, Duan Lewis, appeals the trial court’s order dismissing his motion to correct the
mittimus. Defendant’s appointed attorney on appeal, the Office of the State Appellate Defender
(OSAD), concluded this appeal lacks merit. Accordingly, OSAD filed a motion to withdraw as
counsel for defendant (see Pennsylvania v. Finley, 481 U.S. 551 (1987)) along with a brief in
support of the motion. OSAD provided defendant a copy of its Finley motion and brief. Although
this court provided defendant with an opportunity to file a response to OSAD’s motion or explain
why this appeal has merit, no response was filed. Having reviewed OSAD’s Finley motion and
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brief and the record on appeal, we conclude this appeal lacks merit. Accordingly, we grant OSAD
leave to withdraw and dismiss the appeal.
¶3 BACKGROUND
¶4 On November 19, 2018, following the death of his six-month-old daughter, defendant pled
guilty to involuntary manslaughter and aggravated battery of a child in exchange for a sentence of
10 years’ imprisonment on each count. Pursuant to the agreement, defendant was sentenced to two
10-year prison terms, to be served consecutively.
¶5 In 2019, defendant filed a motion to correct the mittimus to reflect that the sentences were
to run concurrently, based on an alleged agreement between defendant and his attorney. At the
hearing on the motion, his attorney confirmed that the plea agreement was for consecutive
sentences and, thus, the mittimus was correct.
¶6 In March 2020, defendant filed a motion for leave to file a late notice of appeal in the trial
court. It does not appear that defendant ever filed a motion in this court as required by Illinois
Supreme Court Rule 606(c) (eff. July 1, 2017). In any event, the trial court denied the motion.
¶7 In November 2020, defendant filed a postconviction petition, which he subsequently
withdrew. In November 2021, defendant filed another motion to correct the mittimus to reflect that
the sentences were to run concurrently, this time asserting that his consecutive sentences violated
the one-act, one-crime rule. The trial court dismissed the motion based on res judicata. Defendant
appealed.
¶8 ANALYSIS
¶9 OSAD asserts that there is no arguably meritorious argument that the trial court erred in
dismissing defendant’s second motion to correct the mittimus. We agree.
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¶ 10 It is our responsibility to consider the matter of jurisdiction sua sponte. People ex rel.
Haughawout v. Lantow, 59 Ill. App. 2d 406, 410 (1965). Although a trial court has continuing
jurisdiction to correct clerical errors and other matters of form so that the record conforms to the
actual judgment, it generally loses jurisdiction to modify its judgment or alter a sentence 30 days
after entry of the judgment. People v. Flowers, 208 Ill. 2d 291, 303, 306-07 (2003). Here,
defendant’s November 2021 “motion to correct [the] mittimus” did not seek to correct any clerical
errors or make the record conform to the oral pronouncement of the judgment. Instead, two years
after judgment was entered on his guilty plea, defendant filed a motion seeking to substantively
modify the judgment of consecutive sentences to concurrent sentences. Accordingly, the trial court
was without jurisdiction to consider defendant’s motion, and its dismissal thereof was proper.
¶ 11 Although the trial court did not dismiss defendant’s motion on jurisdictional grounds, this
court can affirm the trial court’s judgment on any grounds appearing in the record. Moody v.
Federal Express Corp., 368 Ill. App. 3d 838, 841 (2006). For the foregoing reasons, we grant
OSAD’s motion to withdraw and dismiss the appeal. See Flowers, 208 Ill. 2d at 307 (where lower
court lacked jurisdiction to entertain a motion, the appellate court should dismiss the appeal).
¶ 12 Motion granted; appeal dismissed.
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