People v. McKay

2023 IL App (2d) 220250-UNo. 2-22-0250
Order filed March 24, 2023
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
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. 19-CF-1175
)
ERIK A. McKAY, ) Honorable
) Salvatore LoPiccolo Jr.,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court.
Justices Hutchinson and Jorgensen concurred in the judgment.
ORDER
¶1 Held: Where, on remand for Rule 604(d) compliance, defense counsel filed a Rule 604(d)
certificate for his original motion to reconsider defendant’s sentence but did not file
another certificate when he later filed a second motion to reconsider, the record did
not rebut the certificate’s averment that counsel made all amendments necessary to
adequately present defendant’s contentions. Counsel had told the trial court that he
did not intend to amend his original motion, and the second motion was
substantively the same as the original motion.
¶2 Defendant, Erik A. McKay, entered an open plea of guilty to aggravated driving under the
influence (DUI), a Class 2 felony (625 ILCS 5/11-501(d)(1)(F), (d)(1)(G) (West 2018)). The trial
court sentenced him to nine years in prison, followed by two years of mandatory supervised release
2023 IL App (2d) 220250-U(MSR). The court denied his motion for reconsideration of his sentence, and defendant timely
appealed. We granted defendant’s unopposed motion for summary remand for compliance with
Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). On remand, defendant, represented by the
same counsel, filed a second motion to reconsider his sentence. The court denied the motion, and
defendant timely appealed. In this second appeal, defendant contends that the matter must be
remanded a second time for compliance with Rule 604(d) because, on the first remand, counsel
filed his Rule 604(d) certificate before he filed the second motion to reconsider defendant’s
sentence. 1 We affirm.
¶3 I. BACKGROUND
1
In his opening brief, defendant also contended that defense counsel was ineffective for
failing to object to the two-year MSR term. According to defendant, the MSR term should have
been one year based on a legislative enactment that went into effect after he committed the offense
but before he was sentenced. See Pub. Act 101-0652, §§ 10-281, 99-999 (eff. July 1, 2021); 730
ILCS 5/5-8-1(d)(2) (West Supp. 2021). Initially, the State conceded error. We accepted the State’s
concession and reduced defendant’s MSR term to one year. However, the State later filed a
petition for rehearing, stating that it had incorrectly conceded error. According to the State,
because defendant was sentenced to aggravated DUI, which required him to serve 85% of his
sentence, the correct MSR term was two years. See 730 ILCS 5/5-8-1(d)(7)(B) (West 2020). We
directed defendant to answer the petition. In his answer, defendant agreed with the State and
apologized for overlooking the relevant subsection in his initial brief. Thus, defendant effectively
retracted his argument concerning the MSR term. We then granted the petition for rehearing and
withdrew our prior order.
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2023 IL App (2d) 220250-U¶4 On July 3, 2019, defendant was indicted on two counts of aggravated DUI and one count
of reckless homicide (720 ILCS 5/9-3(a) (West 2018)). The charges stemmed from a single car
accident that occurred on May 31, 2019, and resulted in the death of Amy Carlson. During all
relevant proceedings, private counsel represented defendant.
¶5 On April 23, 2021, the parties participated in a conference with the trial court under Illinois
Supreme Court Rule 402 (eff. July 1, 2012). On May 6, 2021, defense counsel advised the court
that, after discussing the conference with defendant, defendant told him that he wished to execute
a jury waiver and proceed to a bench trial. The court admonished defendant and accepted his jury
waiver.
¶6 On July 23, 2021, defendant entered an open plea of guilty to one count of aggravated DUI.
The trial court admonished defendant that he faced a sentencing range of 3 to 14 years in prison
followed by a 2-year MSR term. The court also admonished defendant of the rights he was giving
up by pleading guilty and the possible consequences of the plea. The court heard the factual basis
of the plea, which established that, on May 31, 2019, defendant was driving his vehicle south on
McLean Boulevard in South Elgin between 102 and 117 miles per hour in a 45-mile-per-hour zone.
Defendant lost control of his vehicle and struck the curb and a fence. The impact destroyed the
vehicle’s passenger side, and the engine was torn from the vehicle. Carlson, the 25-year-old
passenger, was pronounced dead on the scene. Defendant’s blood-alcohol level at the time of the
accident was between 0.074 and 0.109. Cannabis was also detected in defendant’s blood. The court
found the factual basis sufficient and accepted the plea as knowing and voluntary.
¶7 On September 9, 2021, the trial court conducted a sentencing hearing. The State asked for
a 12-year prison term. In aggravation, the State submitted photographs of the accident scene and
presented testimony from the victim’s parents and sister, each of whom read a victim impact
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2023 IL App (2d) 220250-Ustatement. Defendant asked for an eight-year prison term. In mitigation, defendant presented
testimony from four individuals, including his mother and grandmother. Defendant also presented
(1) a letter from an individual at Wayside Cross Ministries, which indicated that defendant had
participated in a parenting class at Wayside, and (2) a list of 31 additional courses that defendant
claimed to have completed since being incarcerated.
¶8 After hearing counsels’ arguments supporting their sentencing requests, the trial court
heard defendant’s statement in allocution. In his statement, defendant expressed remorse and
explained what happened on the night of the incident. Defendant stated that, after finishing their
shifts at the Spotted Fox Ale House on May 30, 2019, he and Carlson “had a few drinks from
roughly 9:30 until about 10:15 p.m.” Afterwards, they went to defendant’s apartment to watch
movies. At about 2 a.m., they decided to get food. While driving to McDonald’s, defendant asked
Carlson if she “would like to go fast” and she said, “ ‘Yes.’ ” Defendant explained that there were
no cars on the road, and he sped up. However, he lost control when “[a]n animal came out” and
he “swerved” to avoid it. In addition, defendant told the court that he lived with his father and was
his primary caregiver. He stated that he worked two jobs to help maintain his father’s house and
did all the grocery shopping and most of the cooking. He further stated that he had an 11-year-old
son, whom he supported, and a fiancé, who had two young sons.
¶9 The trial court sentenced defendant to nine years in prison, followed by two years of MSR.
In announcing sentence, the court noted that it considered (1) the evidence presented, (2) the
factual basis for the plea, (3) the victim impact statements, (4) the presentence investigation report
(PSI), (5) the arguments of counsel, (6) defendant’s statement in allocution, (7) the financial
impact of incarceration, (8) the aggravating and mitigating factors, and (9) defendant’s
rehabilitative potential. The court noted that defendant was eligible for a sentence ranging from
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2023 IL App (2d) 220250-Uprobation to 14 years in prison. The court found no extraordinary circumstances present to warrant
a sentence of probation.
¶ 10 The trial court addressed each of the statutory mitigating factors and found only one such
factor partially relevant—the fact that defendant’s father needed defendant’s assistance. The court
also noted, as a nonstatutory mitigating factor, that defendant pleaded guilty and did not put
Carlson’s family through a trial. The court also considered defendant’s rehabilitative potential and
found that defendant was genuinely sorry. However, the court noted that defendant did not
acknowledge his substance abuse problem or take full responsibility for what happened. The court
found inapplicable the sentencing factor that considers whether the defendant’s conduct resulted
from circumstances unlikely to recur. Specifically, the court noted that defendant was arrested for
DUI in August 2018 (approximately eight months before the present offense) and later pleaded
guilty, receiving a sentence of court supervision. The court also noted that, as a juvenile in 2010,
defendant was ordered to obtain a drug and alcohol evaluation but that, in the PSI, defendant denied
having an alcohol problem.
¶ 11 The trial court found relevant several statutory aggravating factors. In particular, the court
noted defendant’s criminal history, including (1) a juvenile adjudication in July 2010 of retail theft,
(2) a conviction in August 2015 of aggravated battery (strangulation), (3) a conviction in June
2016 of violating an order of protection (which he committed while on probation for aggravated
battery), (4) a February 2017 Class A misdemeanor conviction of speeding, and (5) a DUI
conviction in December 2019 (stemming from an August 2018 offense). The court noted further
in aggravation that a prison sentence was necessary to deter others from committing DUI. Yet
another aggravating factor was that defendant committed the offense of DUI while traveling more
than 20 miles per hour over the speed limit.
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2023 IL App (2d) 220250-U¶ 12 On October 4, 2021, defense counsel filed a “Notice of Appeal.” He also filed a “Notice
of Motion” stating that, on October 14, 2021, he would present a “Motion to Appoint the Appellate
Defender.”
¶ 13 On October 14, 2021, defense counsel advised the trial court that “he had just filed a motion
to reconsider sentence and a notice of appeal.” The “Motion to Reconsider Sentence,” filed that
same day, argued: “The defendant respectfully requests that the court re-consider [sic] and impose
a lighter sentence.” Counsel did not file a Rule 604(d) certificate. The court indicated that it could
not locate the motion to reconsider in the file. Counsel explained that he had intended to file the
motion earlier but that it “never made it through” and that he later filed the motion “just to preserve
the issue.” The State agreed to waive notice of the motion and to argue it that day. On the State’s
suggestion, the court agreed to “nunc pro tunc [the motion to reconsider] back to the *** October
4th filing of the notice of motion.” When asked if he was going to argue the motion, counsel
indicated that he was standing on the motion and that he “said what [he] had to say at the sentencing
hearing.” The court denied the motion, stating:
“So I believe that the reasons I gave for the sentence I gave were consistent with
what I had told the parties at the 402 conference when I had indicated that the range on a
cold plea was going to be between 8 and 9 years, and I sentenced him to 9; and I believe
that was a case that was—a sentence anywhere not in the middle would have been
appropriate, based on his criminal history and the criminal history that he had during the
time period preceding and following this particular charge.”
¶ 14 The trial court appointed the Office of the State Appellate Defender to represent defendant
on appeal.
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2023 IL App (2d) 220250-U¶ 15 On January 14, 2022, we granted defendant’s unopposed motion for a summary remand
for compliance with Rule 604(d). We thus vacated the denial of defendant’s motion to reconsider
his sentence, and we remanded for “ ‘(1) the filing of a [valid] 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.]”
¶ 16 On remand, the same counsel represented defendant. On March 8, 2022, counsel filed a
Rule 604(d) certificate, which stated:
“1. I have consulted with the Defendant in person, by mail, by phone or by
electronic means to ascertain the defendant’s contentions of error in the entry of the plea
of guilty and in the sentence;
2. I have examined the trial court file and report of proceedings of the plea of guilty
and the report of proceedings in the sentencing hearing; and
3. I have made any amendments to the motion necessary for the adequate
presentation of any defects in those proceedings.”
¶ 17 On May 4, 2022, counsel advised the trial court that he had filed a Rule 604(d) certificate.
When the court asked counsel whether he was going to file a motion to reconsider, counsel replied:
“I believe I did that previously.” The court told the parties that it had received a letter from
defendant indicating that a motion to reconsider had not been filed. Counsel stated: “Then I am
going to have to file that and if you give me a short date, I will get that on file right away.” The
court then found the motion counsel had filed before remand. The court asked if counsel wanted
to update it. Counsel responded: “No, Judge, I don’t because I don’t have anything else to argue.”
He further stated: “I made my argument at the time. You ruled.” The court indicated that it would
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2023 IL App (2d) 220250-Uset a date for a hearing. It further stated: “[W]e don’t have to set that in a hurry since you already
filed it, if you are going to stand on that.” The court continued the matter to June 15, 2022.
¶ 18 On June 14, 2022, counsel filed a second “Motion to Reconsider Sentence.” It was identical
to the previously filed motion in all respects but one—it added the following sentence: “The
Defendant requests a sentence of eight years in the Illinois Department of Corrections, which is
consistent with the [Rule] 402 conference.” Counsel did not file a new Rule 604(d) certificate.
¶ 19 The hearing ultimately took place on July 6, 2022. At the outset, the trial court advised
defendant that counsel had filed a motion to reconsider defendant’s sentence. Defendant
responded: “That’s correct.” The court further stated:
“And he also filed what’s called a [Rule] 604(d) certificate indicating that he talked
to you about this motion to reconsider and talked to you about whether you wished to file
a motion to vacate plea or any other—because I know that you were going—you had an
interest in filing an appeal, and before these things were taken care of that has to be—we
have to settle these things before you can actually file a notice of appeal.”
The court then confirmed with defendant that he (1) spoke with counsel about what he (defendant)
wanted to do, (2) wanted to file a motion to reconsider his sentence, and (3) did not want to file a
motion to withdraw his guilty plea. The court concluded: “Okay. All right. That’s what [defense
counsel’s] [Rule] 604(d) certificate said as well.”
¶ 20 Counsel then argued:
“It’s our contention that nine years was an excessive sentence; that a sentence of
eight years was more in line with [defendant’s] background, his criminal history, the facts
of the case and the remorse that he showed as well as mitigation that was presented at the
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2023 IL App (2d) 220250-Usentencing hearing. For all of those reasons, we believe that nine was excessive and the
appropriate sentence is eight years.”
¶ 21 After hearing the State’s response, the trial court denied the motion. The court stated:
“So, when I entered the sentence I had indicated in a prior [Rule] 402 conference
that what I had heard in the [Rule] 402 conference the—I was going to sentence the
defendant to a range in between eight and nine years is what I had told the parties at the
[Rule] 402 conference. When I heard the evidence presented at the sentencing hearing
combined with the factual basis and the defendant’s statement in allocution, I felt that based
on his criminal history, the evidence presented at the sentencing hearing and the evidence
presented in the factual basis that nine years was the appropriate sentence.
I can read a little bit of what I said back then. The sentencing range for this
particular offense is 3 to 14 years in the Illinois Department of Corrections. It’s an 85
percent sentence. There is in the statute—the only way I could give probation was if I
found extraordinary circumstances to warrant probation. I had indicated in the [Rule] 402
[conference], and I indicated again at the sentencing hearing, that I did not believe that
there were extraordinary circumstances existing in this case to warrant probation, and
nothing that was presented to me either at the [Rule] 402 conference or at the sentencing
hearing changed my opinion, nor had the [PSI] changed my opinion. So, I do not find
extraordinary circumstances.
I also indicated that I did take into account his remorse. I also indicated in my
sentencing—when I pronounced sentence that I didn’t believe that the defendant had
acknowledged the fact that he had a substance abuse problem. I also indicated that in the
factual—in the statement of allocution, the defendant in that statement of allocution was
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2023 IL App (2d) 220250-Uattempting to shift the blame to the victim in the case for why he was driving at such an
excessive speed.
So, when I take into account his prior criminal history, the factual basis and the
evidence presented at the sentencing hearing, I do believe that I entered the appropriate
sentence of nine years, and I’m going to deny the defendant’s motion to reconsider
sentence.”
¶ 22 This timely appeal followed.
¶ 23 II. ANALYSIS
¶ 24 Defendant contends that, although defense counsel filed on remand a facially valid
certificate of compliance with Rule 604(d), stating that he had made any necessary amendments
to the motion for reconsideration of defendant’s sentence, the record refutes the certificate because
counsel subsequently filed what defendant deems an “amended” motion to reconsider defendant’s
sentence. According to defendant, because counsel did not file a new Rule 604(d) certificate when
he filed the “amended” motion, the matter must be remanded a second time for further proceedings
in compliance with Rule 604(d).
¶ 25 In response, the State contends that, based on People v. Montag, 2014 IL App (4th) 120993,
a remand is unnecessary, because “defendant does not suggest counsel failed to comply with the
rule’s substantive requirements[,]” nor does “defendant articulate how the certificate’s technical
inaccuracy undermines Rule 604(d)’s purpose and deprived him of a fair opportunity to present
his claims of error ***.” Alternatively, the State argues that, under People v. Shirley, 181 Ill. 2d
359 (1998), defendant is not entitled to a second remand, because the court afforded him a full and
fair opportunity to present his motion to reconsider his sentence.
¶ 26 Rule 604(d) states:
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2023 IL App (2d) 220250-U“No appeal from a judgment entered upon a plea of guilty shall be taken unless the
defendant, within 30 days of the date on which sentence is imposed, files in the trial court
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).
The rule’s certificate requirement states:
“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.” Id.¶ 27 It is well established that counsel must strictly comply with the certificate requirements of
Rule 604(d). See People v. Janes, 158 Ill. 2d 27, 33, 35 (1994). If counsel does not strictly comply,
we must remand the matter to the trial court “for the filing of a new Rule 604(d) certificate, for the
filing of a new motion to withdraw guilty plea or to reconsider sentence, and for a new hearing on
the motion.” See People v. Gorss, 2022 IL 126464, ¶ 31. In addition, even where a Rule 604(d)
certificate is facially valid, remand is required if the record refutes the certificate. People v.
Bridges, 2017 IL App (2d) 150718, ¶ 8. “Whether counsel complied with Rule 604(d) is a legal
question that we review de novo.” Gorss, 2022 IL 126464, ¶ 10.
¶ 28 Here, there is no dispute that counsel’s Rule 604(d) certificate is facially valid. Thus, the
issue is whether the record refutes the certificate as defendant claims. In his certificate, counsel
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2023 IL App (2d) 220250-Uavers: “I have made any amendments to the motion necessary for the adequate presentation of any
defects in those proceedings.” (Emphasis added.) According to defendant, counsel’s later action
of filing a second motion to reconsider defendant’s sentence refutes this averment and requires
that we remand. See People v. Love, 385 Ill. App. 3d 736, 738 (2008) (finding unacceptable
counsel’s Rule 604(d) certificate filed before counsel reviewed the transcript of the guilty plea
proceedings).
¶ 29 In support of his argument, defendant relies on People v. Callahan, 2021 IL App (4th)
200334-U, ¶ 15, as persuasive authority under Illinois Supreme Court Rule 23(e)(1) (eff. Jan. 1,
2021). In Callahan, the defendant pleaded guilty to three drug offenses in exchange for the
dismissal of other charges. Id. ¶ 4. The trial court sentenced him to concurrent five-year prison
terms. Id. Counsel filed a motion to reconsider defendant’s sentence and attached a facially valid
Rule 604(d) certificate. Id. ¶¶ 5, 15. About a week later, the defendant filed a pro se motion to
withdraw his guilty plea, arguing that his plea was not knowing, “ ‘due to [his] mental status.’ ”
Id. ¶ 6. The defendant asserted that he was unable to consistently take his psychiatric medications
and that he had “ ‘plenty of medical records’ ” to support his claim. Id. The court told the
defendant that he could not file a pro se motion and should speak to counsel. Id. Subsequently,
counsel filed an amended motion to withdraw the defendant’s guilty plea, arguing that the
defendant’s plea was not knowing and voluntary, due to medications and inconsistent treatment.
Id. ¶ 7. Counsel attached only the defendant’s affidavit in support. Id. Counsel did not file a new
Rule 604(d) certificate. Id. Following a hearing, the court denied the motion. Id. ¶ 8. The court
stated that the defendant did not provide “ ‘sufficient evidence’ ” to support his claim. Id.¶ 30 On appeal, the defendant argued that counsel failed to strictly comply with Rule 604(d),
because he filed his certificate of compliance before filing the amended motion to withdraw the
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2023 IL App (2d) 220250-Uguilty plea. Id. ¶ 11. In response, the State did not attempt to argue that the certificate complied
with the rule. Instead, citing Montag and People v. Walker, 2021 IL App (1st) 190139-U, the State
argued that the court should affirm the judgment because remand “ ‘would serve no substantive
purpose and would merely be a pro forma activity.’ ” Id.¶ 31 The Callahan court considered both Montag and Walker. In Montag, the reviewing court
found that postplea counsel’s Rule 604(d) certificate was technically inaccurate because counsel
filed an amended motion to reconsider sentence after he filed the certificate. Montag, 2014 IL
App (4th) 120993, ¶ 25. Nevertheless, the court did not remand for strict compliance with the rule,
because the defendant did not argue that postplea counsel failed to comply with the substantive
requirements of the rule or argue how the technically inaccurate certificate undermined the purpose
of Rule 604(d). Id. Similarly, in Walker, the reviewing court found that postplea counsel’s Rule
604(d) certificate was technically inaccurate because counsel filed it before obtaining the relevant
transcripts. Still, the court declined to remand the case because the record made clear that counsel
had obtained and reviewed the transcripts before the hearing. Walker, 2021 IL App (1st) 190139-
U, ¶ 14. The Walker court noted that, “as in Montag, [the] defendant has not articulated how the
Rule 604(d) certificate’s technical inaccuracy undermined the purpose of the rule or deprived him
of a fair opportunity to present his claims of error.” Id. ¶ 17.
¶ 32 The Callahan court found Montag and Walker distinguishable and rejected the State’s
argument. Id. ¶¶ 19-22. The court noted that, unlike in Montag and Walker, the Callahan
defendant had articulated how the certificate’s technical inaccuracy undermined the purpose of the
rule. Id. ¶ 20. The court agreed with the defendant’s argument that it was unclear whether counsel
made all necessary amendments, given that, despite the defendant’s claim that he had “ ‘plenty of
medical records,’ ” counsel attached only the defendant’s affidavit, which the trial court found was
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2023 IL App (2d) 220250-Uinsufficient to support the defendant’s claim. Id. Thus, the court concluded that, “unlike in Montag
and Walker, the potential exists that the ‘certificate’s technical inaccuracy undermined the purpose
of the rule or deprived him of a fair opportunity to present his claims or error’ [Citation.]” Id.¶ 33 The present case is readily distinguishable from Callahan in two important respects. First,
although counsel filed a second motion to reconsider defendant’s sentence after counsel filed his
certificate of compliance with Rule 604(d), the second motion to reconsider was identical to the
previously-filed motion in all respects but one—it added a specific request that defendant’s
sentence be reduced to “eight years ***, which is consistent with the [Rule] 402 conference.”
Thus, unlike the amended motion in Callahan, which added an entirely new claim seeking to
withdraw the guilty plea, the second motion filed here raised no new issues and made no
substantive changes. We disagree with defendant that the second motion’s reference to the Rule
402 conference rose to the level of a new substantive claim. At most, it merely added support for
a sentence reduction. Indeed, a review of the May 4, 2022, transcript of the proceedings on remand
confirms that counsel did not intend to amend the previously filed motion, where he expressly
stated that he did not “have anything else to argue.” Later, at the July 6, 2022, motion hearing, the
trial court specifically confirmed with defendant that (1) he spoke with counsel about what he
(defendant) wanted to do and that (2) he wanted to file a motion to reconsider his sentence. Thus,
although counsel filed a second motion to reconsider the day before the hearing, we cannot say
that this motion, raising no new substantive issues, affirmatively rebuts counsel’s certificate, as
was clearly the case in Callahan.
¶ 34 Moreover, unlike in Callahan, here, as the State notes, defendant is seeking a second
remand. Thus, even if we were to agree with defendant that counsel’s filing a second motion
without a second certificate was not in strict compliance with Rule 604(d), the rule does not
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2023 IL App (2d) 220250-Uautomatically require a second remand for a third hearing on the motion. See Shirley, 181 Ill. 2d
at 369-70. For example, in Shirley, the defendant entered a partially negotiated guilty plea. Id. at
362-63. Counsel filed a motion to reduce the defendant’s sentence but failed to file a Rule 604(d)
certificate. Id. at 363-64. The defendant appealed, and the court remanded for compliance with
Rule 604(d). Id. at 364. On remand, original counsel filed a Rule 604(d) certificate and a motion
to withdraw as counsel. Id. at 364-65. The trial court granted counsel’s motion to withdraw and
appointed the public defender. Id. at 365. New counsel filed a motion to reduce the defendant’s
sentence. Id. After a hearing on the motion, the court denied it. Id. at 366. Four days later,
counsel filed a Rule 604(d) certificate and a notice of appeal. Id.¶ 35 On appeal, the defendant argued that a remand was necessary because counsel failed to
strictly comply with Rule 604(d) when she filed the certificate after the motion was heard and
denied. Id. The supreme court disagreed that the defendant was entitled to a second remand for
strict compliance with Rule 604(d). The court stated:
“We reject defendant’s implicit premise that the strict compliance standard of
[People v. Janes, 158 Ill. 2d 27 (1994),] must be applied so mechanically as to require
Illinois courts to grant multiple remands and new hearings following the initial remand
hearing. Where, as here, the defendant was afforded a full and fair second opportunity to
present a motion for reduced sentencing, we see limited value in requiring a repeat of the
exercise, absent a good reason to do so.” Shirley, 181 Ill. 2d at 369.
¶ 36 The supreme court noted that, following the first remand, the defendant received a full and
fair hearing on his motion to reduce the sentence. Id. Further, the defendant had never sought to
withdraw his guilty plea, from which he received significant sentencing concessions. Id. at 370.
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2023 IL App (2d) 220250-UTherefore, to require another remand and hearing on the motion to reduce the sentence “would be
an empty and wasteful formality.” Id.¶ 37 So too here. Following the first remand, counsel certified that he consulted with defendant
to ascertain his claims of error in both the plea and the sentence, that he had examined the report
of proceedings from the plea hearing and the sentencing hearing, and that he had made any
necessary amendments. On May 4, 2022, after filing the Rule 604(d) certificate, counsel
confirmed with the court that he was not going to file another motion because he “[did not] have
anything else to argue.” Although counsel later filed a second motion, as we noted above, it raised
no new issues concerning the sentence. As argued in the first motion to reconsider, counsel
continued to maintain only that the sentence was excessive. At the July 6, 2022, hearing, defendant
confirmed that he (1) had spoken with counsel about what he wanted to do, (2) wanted to file a
motion to reconsider his sentence, and (3) did not want to file a motion to withdraw his plea.
¶ 38 In the following hearing, counsel argued that the nine-year sentence was excessive and that
the court should reduce it to eight years. The trial court heard argument from both parties and
thoroughly considered the issue. The court acknowledged that, during the Rule 402 conference, it
indicated that it was going to sentence defendant to a range between eight and nine years in prison.
The court made clear, however, that it still believed that nine years was the appropriate sentence
based on the factual basis and the evidence at the sentencing hearing. The court specifically
referenced defendant’s statement in allocution (wherein he attempted to shift the blame for his
speed to the victim), his failure to acknowledge that he had a substance abuse problem, and his
criminal history.
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2023 IL App (2d) 220250-U¶ 39 The record makes clear that “defendant was afforded a full and fair second opportunity to
present a motion for reduced sentencing.” Id. at 369. Thus, we agree with the State that remanding
for a third hearing would be “an empty and wasteful formality.” Id. at 370.
¶ 40 III. CONCLUSION
¶ 41 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 42 Affirmed.
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