                            ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Hampton, 2011 IL App (4th) 100219




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     PERRY E. HAMPTON, Defendant-Appellant.



District & No.              Fourth District
                            Docket No. 4-10-0219


Filed                       September 29, 2011


Held                        The appellate court denied the motion of the office of the State Appellate
(Note: This syllabus        Defender seeking summary remand for compliance with Supreme Court
constitutes no part of      Rule 606(b) based on the argument that the trial court should consider
the opinion of the court    defendant’s pro se motion seeking the return of defendant’s money that
but has been prepared       was being held by the circuit clerk following his conviction for residential
by the Reporter of          burglary, since no relief could be granted until defendant’s pending
Decisions for the           appeal was resolved.
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Champaign County, No. 09-CF-1903;
Review                      the Hon. Heidi N. Ladd, Judge, presiding.



Judgment                    Motion denied.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Ryan R. Wilson, all of State
Appeal                     Appellate Defender’s Office, of Springfield, for appellant.

                           Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino and Robert J.
                           Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of
                           counsel), for the People.


Panel                      JUSTICE POPE delivered the judgment of the court, with opinion.
                           Presiding Justice Knecht and Justice Appleton concurred in the judgment
                           and opinion.




                                             OPINION

¶1         This appeal comes to us on the motion of defendant’s counsel, the office of the State
        Appellate Defender (OSAD), for summary remand for compliance with Illinois Supreme
        Court Rule 606(b) (eff. Mar. 20, 2009).

¶2                                         I. BACKGROUND
¶3          On February 3, 2010, a jury found defendant, Perry E. Hampton, guilty of residential
        burglary (720 ILCS 5/19-3(a) (West 2008)). Following the February 2010 jury trial, an
        evidence technician from the City of Urbana police department sent defendant a letter, stating
        as follows:
            “In response to your recent inquiries, the Urbana Police Department has property which
            we believe belongs to you. 30 days after your conviction, this property may be picked up.
            This allows time for appeals. If there is an appeal, it may be picked up after the appeal
            process is over.”
        Further, the letter specifically identified the property as $651.
¶4          On March 11, 2010, the trial court sentenced defendant to 29 years’ imprisonment with
        credit for 128 days already served, to be followed by a 2-year period of mandatory supervised
        release. Additionally, pursuant to a March 11, 2010, docket entry, the court ordered
        defendant to pay (1) $1,462 in restitution, (2) a Violent Crime Victims Assistance Act fee
        (see 725 ILCS 240/11 (West 2008)), and (3) a $200 genetic-marker-grouping-analysis fee.
        On that same day, the court entered a written order of forfeiture pursuant to sentence.
        Pursuant to this order, certain property seized from defendant’s person at the time of the
        arrest was determined forfeited and would be delivered by the Urbana police department to
        the Champaign County circuit clerk. The property, which was identified as “$600 in U.S.
        Currency” and “$51.00 in U.S. Currency,” was seized “for application to the ordered

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       restitution.”
¶5         On March 12, 2010, defense counsel filed a motion to reconsider sentence, or, in the
       alternative, for a new sentencing hearing, arguing defendant’s sentence was excessive. On
       March 16, 2010, the trial court denied defendant’s motion to reconsider his sentence. On
       March 19, 2010, defendant filed a notice of appeal. OSAD was appointed to serve as his
       attorney and an amended notice of appeal was filed on March 26, 2010.
¶6         On April 8, 2010, defendant mailed a pro se “motion to re-coupe [sic] personal funds”
       to the Champaign County circuit clerk’s office, accompanied by a notarized certificate of
       service stating the motion was placed in the prison mail system on that date. In the “motion
       to re-coupe [sic] personal funds,” defendant appears to challenge the amount of restitution
       imposed by the trial court. Specifically, defendant stated, in pertinent part, as follows:
                “There never has been a hearing to determine how much the broken door costs. Nor
           [were] any fines, restitutions or any costs mentioned during trial, and after verdict.”
       Additionally, defendant argued the trial court abused its discretion by allowing certain
       evidence to be introduced at his sentencing hearing. Defendant requested copies “of all
       materials, including but not limited to, police reports, dispatch tapes reduced to writing,
       interview transcripts of any and all [of the] state’s witnesses, pre-trial oral statements[,] and
       original statements of everyone involved” pursuant to the Freedom of Information Act (5
       ILCS 140/1 through 11 (West 2008)). Defendant further requested that “any material or
       information which tends to negate [his] guilt *** or would tend to reduce his punishment”
       be produced according to Brady v. Maryland, 373 U.S. 83 (1963).
¶7         In response to defendant’s motion, the trial court sent defendant a letter on May 11, 2010,
       which stated the following:
                “Your case is currently on appeal and you are represented in that matter by the
           Appellate Defender’s Office.
                Any money seized by the police as evidence is being held while the case is still
           pending. Any money posted as bond was ordered to be applied to the outstanding
           financial obligations imposed in your case.
                You should direct any issues concerning your appeal to your appellate counsel.”

¶8                                          II. ANALYSIS
¶9          OSAD has filed a motion for summary remand for compliance with Illinois Supreme
       Court Rule 606(b) (eff. Mar. 20, 2009), arguing defendant’s case should be remanded to the
       trial court for the court to evaluate the merits of defendant’s pro se motion. The State filed
       an objection to defendant’s motion for summary remand, arguing Rule 606(b) does not
       authorize the filing of successive and repetitious postjudgment motions raising issues that
       were previously raised or could have been previously raised. Additionally, the State argues
       a pro se motion for sentence modification may generally not be filed while a defendant is
       represented by counsel. We agree with the State and deny OSAD’s motion.
¶ 10        “Rule 606(b) contemplates the filing of only one postjudgment motion directed against
       the final judgment–whether it be the conviction or the sentence or both ***.” People v.

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       Miraglia, 323 Ill. App. 3d 199, 205, 753 N.E.2d 398, 403 (2001). Here, defendant’s trial
       counsel filed a posttrial motion and could have raised the claim defendant raised in his pro
       se motion. Successive motions raising issues that were or could have been raised
       unnecessarily extend the time for appeal. Miraglia, 323 Ill. App. 3d at 205, 753 N.E.2d at
       403. Indeed, one could easily foresee a scenario wherein a defendant could indefinitely
       prolong the time for appeal by simply filing postjudgment motion after postjudment motion
       containing arguments not contained in the prior motion. “There must be finality–a time when
       the case in the trial court is really over and the unsuccessful party must appeal or give up.”
       Miraglia, 323 Ill. App. 3d at 205, 753 N.E.2d at 403 (citing Sears v. Sears, 85 Ill. 2d 253,
       259, 422 N.E.2d 610, 612 (1981)).
¶ 11        Moreover, a pro se motion for sentence modification is generally “ ‘not properly before
       the court’ ” if the pro se motion is filed while the defendant is represented by counsel. People
       v. Neal, 286 Ill. App. 3d 353, 355, 675 N.E.2d 130, 131 (1996) (quoting People v. Handy,
       278 Ill. App. 3d 829, 836, 664 N.E.2d 1042, 1046-47 (1996)). In Neal, the defendant filed
       a pro se motion to reduce sentence in the trial court while he was represented by appellate
       counsel. Neal, 286 Ill. App. 3d at 355, 675 N.E.2d at 131. In determining the defendant’s pro
       se motion was “not properly before” the trial court, this court stated:
                “We recognize that the pro se motion to reduce sentence was filed at a time when the
            30-day period after sentencing had not expired [citation], but at a time when trial counsel
            would have deemed his functioning had ceased because of the appointment of OSAD,
            who would not have foreseen any responsibility to file motions in the trial court.
            Nevertheless, defendant had the benefit of trial counsel who did not deem the filing of
            a motion to reduce sentence to be appropriate.” Neal, 286 Ill. App. 3d at 355, 675 N.E.2d
            at 131.
       Additionally, in Handy, 278 Ill. App. 3d at 836, 664 N.E.2d at 1046, the appellate court
       concluded the defendant’s pro se motion for reduction of sentence was “not properly before”
       the trial court because the defendant was represented by trial counsel. Defense counsel had
       previously filed a motion to modify sentence, and neither the trial court nor counsel made
       any reference to the defendant’s pro se motion at the hearing on defense counsel’s motion
       to modify sentence. Handy, 278 Ill. App. 3d at 835, 664 N.E.2d at 1046. The appellate court
       determined the “defendant had no authority to file pro se motions, and the [trial] court not
       only did not need to consider them, it should not have considered them.” (Emphasis in
       original.) Handy, 278 Ill. App. 3d at 836, 664 N.E.2d at 1046.
¶ 12        Here, defendant’s pro se “motion to re-coupe [sic] personal funds” was “not properly
       before” the trial court. Defendant was represented by trial counsel throughout the trial court
       proceedings. Additionally, defendant’s trial counsel filed a motion to reconsider sentence,
       or, in the alternative, for a new sentencing hearing on defendant’s behalf. The court denied
       this motion, defendant filed a notice of appeal, and OSAD was appointed as his appellate
       counsel. Defendant subsequently filed a pro se “motion to re-coupe [sic] personal funds,”
       arguing the court abused its discretion by allowing certain evidence to be introduced at his
       sentencing hearing and requesting the court (1) return the money seized from his person at
       the time of his arrest, (2) provide him with copies of requested documents pursuant to the
       Freedom of Information Act, and (3) provide him with information pursuant to Brady. We

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       note this is not a case where defendant pro se filed a postjudgment motion alleging an
       ineffective assistance of counsel claim. See People v. Serio, 357 Ill. App. 3d 806, 816, 830
       N.E.2d 749, 759 (2005).
¶ 13        In this case, when defendant mailed his pro se motion to the circuit clerk’s office for
       filing, he had no authority to file pro se motions because he had been consistently
       represented by counsel throughout every stage of the proceeding. Defendant had the benefit
       of trial counsel who filed a motion to reconsider sentence on his behalf. Following the denial
       of the motion to reconsider sentence, a notice of appeal was filed and OSAD was appointed
       to represent defendant on appeal. As a result, this court has jurisdiction over defendant’s
       appeal, and OSAD’s motion for remand is denied.
¶ 14        Further, we recognize defendant requested the trial court return money seized from his
       person at the time of his arrest. Section 108-2 of the Code of Criminal Procedure of 1963
       (Procedure Code) (725 ILCS 5/108-2 (West 2008)) governs the custody and disposition of
       property seized. Pursuant to section 108-2 of the Procedure Code:
            “An inventory of all instruments, articles or things seized on a search without warrant
            shall be given to the person arrested and a copy thereof delivered to the judge before
            whom the person arrested is taken, and thereafter, such instruments, articles or things
            shall be handled and disposed of in accordance with Sections 108-11 and 108-12 of this
            Code. If the person arrested is released without a charge being preferred against him all
            instruments, articles or things seized, other than contraband, shall be returned to him
            upon release.” 725 ILCS 5/108-2 (West 2008).
       Additionally, section 108-11 of the Procedure Code provides for the disposition of things
       seized and states as follows:
            “The court before which the instruments, articles or things are returned shall enter an
            order providing for their custody pending further proceedings.” 725 ILCS 5/108-11
            (West 2008).
¶ 15        In this case, the trial court entered an order of forfeiture seizing certain property ($651)
       belonging to defendant for application to the ordered restitution. However, the court
       subsequently sent defendant a letter in response to his pro se motion, stating any money
       seized by the police as evidence was being held while the case was pending. Regardless of
       whether the money was seized for application to the ordered restitution or was being held
       pending resolution of defendant’s case, no effectual relief can be granted by the trial court
       at this time because defendant filed a notice of appeal. Instead, as a matter of course, the
       money must be held pending resolution of defendant’s appeal.

¶ 16                                III. CONCLUSION
¶ 17      Accordingly, we deny OSAD’s motion for summary remand for compliance with Illinois
       Supreme Court Rule 606(b) (eff. Mar. 20, 2009).

¶ 18       Motion denied.



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