                                Illinois Official Reports

                                       Appellate Court



                          People v. Bernard, 2014 IL App (2d) 130924



Appellate Court           THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                   ALIA BERNARD, Defendant-Appellant.


District & No.            Second District
                          Docket No. 2-13-0924


Filed                     December 10, 2014
Modified upon denial
of rehearing              February 10, 2015


Held                       Pursuant to the appellate court’s authority under Supreme Court Rule
(Note: This syllabus 366(a)(5), which allows the appellate court to make any other or
constitutes no part of the further orders and grant any relief, including remandment, that the
opinion of the court but case may require, the appellate court, in view of the trial court’s entry
has been prepared by the of an order that is obviously based on a confused and incorrect
Reporter of Decisions understanding of the status of the instant case, vacated the trial court’s
for the convenience of order denying defendant’s motion to withdraw her guilty plea and
the reader.)               dismiss charges of aggravated driving under the influence and to
                           reconsider her sentence and remanded the cause for a new hearing in
                           the trial court, with the case returned to the trial court as it existed
                           when defendant was initially sentenced; further, defendant shall be
                           granted reasonable time to file a new motion to withdraw her guilty
                           plea and/or reconsider her sentence if counsel concludes that a new
                           motion is necessary in order to include issues and/or prayers for relief
                           in light of this posture, and also, counsel shall file a new certificate
                           pursuant to Supreme Court Rule 604(d).



Decision Under            Appeal from the Circuit Court of Kane County, No. 10-CF-1253; the
Review                    Hon. Allen M. Anderson and the Hon. M. Karen Simpson, Judges,
                          presiding.
                                Vacated and remanded with directions.
     Judgment


     Counsel on                 Michelle L. Moore and Michael John Sweeney, both of Law Offices
     Appeal                     of Michelle L. Moore & Kim DiGiovanni, and Donald J. Ramsell, of
                                Ramsell & Associates, both of Wheaton, for appellant.

                                Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                                Bauer and Marshall M. Stevens, both of State’s Attorneys Appellate
                                Prosecutor’s Office, of counsel), for the People.



     Panel                      JUSTICE McLAREN delivered the judgment of the court, with
                                opinion.
                                Justices Burke and Jorgensen concurred in the judgment and opinion.


                                                   OPINION

¶1         Defendant, Alia Bernard, appeals from the trial court’s denial of her motions to withdraw
       her guilty plea and reconsider her sentence. We vacate and remand for further proceedings.

¶2                                        I. BACKGROUND
¶3         Defendant was charged with two counts of reckless homicide (720 ILCS 5/9-3(a) (West
       2008)) and one count of driving under the influence (any amount of cannabis) (625 ILCS
       5/11-501(a)(6) (West 2008)), arising out of a May 24, 2009, motor vehicle collision that
       resulted in the deaths of Wade and Denise Thomas. The grand jury indictments lodging these
       charges were returned in May 2010. Defendant posted bond on May 20, 2010.
¶4         After the trial court denied various pretrial motions in March 2011, the case was
       continued for trial to June 13, 2011. However, on May 17, 2011, the grand jury returned a
       five-count “Re-Indictment” that charged, in addition to the three counts in the original
       indictment, two counts of aggravated driving under the influence (aggravated DUI) (625
       ILCS 5/11-501(d)(1)(F) (West 2008)) (counts I and II).1 The trial date was stricken, and the
       matter was continued for defendant to file any motions relating to the new indictment.
       Defendant filed a motion to find the aggravated DUI statute unconstitutional, which the trial
       court denied on October 28, 2011.
¶5         On December 9, 2011, defendant entered “unconditional (COLD)” pleas of guilty to the
       two counts of aggravated DUI. The State nol-prossed the remaining charges. On February 8,
       2012, following a sentencing hearing, the trial court, Judge Allen M. Anderson presiding,
       sentenced defendant to concurrent terms of seven years in the Department of Corrections. On

            We note that, while both counts I and II initially alleged violations of “Section 5/11-501(d)(1)(F),”
             1

       the “(d)(1)(F)” was scratched out and a handwritten “a” was inserted.

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     February 15, 2012, defendant filed a timely motion to reduce the sentence, praying the court
     to either: (1) find that “extraordinary circumstances exist and impose a period of probation”;
     (2) recommend that defendant be placed in the impact incarceration program; or (3) reduce
     her sentence to six years.
¶6       On March 22, 2012, attorney Michelle Moore entered her appearance as additional
     counsel for defendant.2 On June 22, Moore filed a motion to withdraw the plea and dismiss
     the aggravated DUI charges, raising issues of compulsory joinder, speedy trial, and
     ineffective assistance of counsel. The trial court continued the case for a hearing on both
     motions. On August 15, 2012, the trial court denied the motion to withdraw the plea, stating:
     “one, I don’t think that it was timely, [two] if it were timely I do not believe that the
     argument raised is sufficient to cause the plea of guilty to be withdrawn, at least under the
     arguments that I’ve heard so far.” After additional argument on defendant’s motion to reduce
     the sentence, the trial court reduced the sentence to six years in the Department of
     Corrections, the minimum sentence allowed. Defendant timely appealed from the August 15
     order, specifying both the denial of her motion to withdraw the plea and “the Court’s Failure
     to Exercise Discretion at Sentencing, and Entry of an Order Granting in Part and Denying in
     Part Defendant’s Motion to Reconsider Sentence.”
¶7       In this court, defendant filed a motion for an immediate remand, noting that a certificate
     pursuant to Illinois Supreme Court Rule 604(d) (eff. July 1, 2006) had not been filed; as strict
     compliance with Rule 604(d) is required, defendant requested an immediate remand for Rule
     604(d) compliance with leave to refile a notice of appeal. This court entered an order
     granting the motion and remanding the cause to the trial court for Rule 604(d) compliance.
     People v. Bernard, No. 2-12-0928 (Feb. 22, 2013) (minute order).
¶8       On May 10, 2013, defendant filed an “AMENDED MOTION TO WITHDRAW PLEA
     AND DISMISS AGGRAVATED DRIVING UNDER THE INFLUENCE CHARGES AND
     TO RECONSIDER SENTENCE, PURSUANT TO REMAND.” Defendant’s arguments
     regarding withdrawing the plea were the same as in her original motion, with the addition of
     citations to recent case law. Counsel also filed a Rule 604(d) certificate. The trial court,
     Judge M. Karen Simpson now presiding, denied the motion on August 21, 2013. The court
     recounted the procedural history of the case up to the filing of the original motion to
     withdraw the plea. The court then found that it “lacks jurisdiction with respect to the Motion
     to Withdraw the Plea of Guilty, and I further note that the Defendant failed to seek any
     extension of time for filing the Motion to Withdraw the Plea of Guilty.” The court then
     addressed the issues of speedy trial, compulsory joinder, and ineffective assistance and
     concluded that “the issue with respect to the dismissing the charges because of the
     compulsory joinder speedy trial issue, that is denied.” Finally, the court denied the motion to
     reconsider the sentence, stating:
                  “I did have an opportunity to review and read the transcript from the Sentencing
             Hearing and then I note that when the matter did come back before Judge Anderson,
             when this request was made previously, Judge Anderson did, in fact, reconsider and
             in fact changed the Defendant’s sentence. I don’t see that there’s anything new that
             has been presented to this Court in this regard, so the Motion is denied.”
     This appeal followed.

        2
         Defendant’s original attorney subsequently moved to withdraw.

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¶9                                            II. ANALYSIS
¶ 10        Our supreme court has held that the appropriate remedy for defense counsel’s failure to
       file a Rule 604(d) certificate is:
               “a remand 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).
       It is axiomatic that, when this court remands a cause for the filing of a new motion (if
       necessary) and a hearing on a new motion, the order that is the subject of the appeal is
       vacated. An order that is left intact does not require a remand for further proceedings. A
       vacated judgment is nullified, canceled, and void. In re K.S., 365 Ill. App. 3d 566, 577
       (2006). Thus, the trial court’s August 15, 2012, order denying defendant’s motion to
       withdraw the guilty plea and granting in part the motion to reconsider the sentence was
       vacated when this court issued its summary remand on February 22, 2013. It is also
       axiomatic that amended pleadings supersede prior pleadings. See People v. Cross, 144 Ill.
       App. 3d 409, 412 (1986) (“[A]s a general rule, an amendment which is complete in itself and
       which makes no reference to the prior pleading supersedes it, and the original pleading
       ceases to be a part of the record, being in effect abandoned or withdrawn.”). Defense counsel
       apparently concluded “that a new motion is necessary” (Lindsay, 239 Ill. 2d at 531) and
       clearly took advantage of the opportunity to file a new motion, to both withdraw the guilty
       plea and reconsider the sentence. Thus, defendant’s prior motions to withdraw the plea and
       reconsider the sentence were superseded by her combined motion after remand.
¶ 11        However, the trial court and the State appeared to be confused as to the status of
       defendant’s prior motions and the trial court’s order disposing of them. In both its written
       response to defendant’s combined motion and at oral argument on the motion, the State
       contended that the court lacked jurisdiction to hear the motion to withdraw the plea, because
       defendant did not timely file her original motion to withdraw the plea. On remand, in ruling
       on defendant’s motion to withdraw the plea, the trial court found that it lacked “jurisdiction
       with respect to the Motion to Withdraw the Plea of Guilty, and I further note that the
       Defendant failed to seek any extension of time for filing the Motion to Withdraw the Plea of
       Guilty.” This, again, clearly referenced the original motion to withdraw the plea.
¶ 12        Further, in addressing defendant’s argument regarding her sentence, the trial court stated
       that, “when this request was made previously, Judge Anderson did, in fact, reconsider and in
       fact changed the Defendant’s sentence. I don’t see that there’s anything new that has been
       presented to this Court in this regard, so the Motion is denied.” While the trial court denied
       relief under defendant’s post-remand motion, the court did so based on Judge Anderson’s
       prior ruling reducing defendant’s sentence to concurrent six-year terms. However, Judge
       Anderson’s ruling had been vacated by this court’s February 22, 2013, remand order.
¶ 13        We note that defendant does not raise the issue of the trial court’s confused ruling on her
       post-remand motions. Other than for assessing subject matter jurisdiction, this court will not
       normally search the record for unargued and unbriefed reasons to reverse a trial court. See
       People v. Givens, 237 Ill. 2d 311, 323 (2010). Courts are to “ ‘wait for cases to come to us,
       and when they do we normally decide only questions presented by the parties.’ ” (Internal
       quotation marks omitted.) Id. at 324 (quoting Greenlaw v. United States, 554 U.S. 237, 244

                                                  -4-
       (2008)). However, under Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994), this court
       “may, in its discretion, and on such terms as it deems just, *** make any other and further
       orders and grant any relief, including a remandment, *** that the case may require.” We have
       no confidence in a decision that is so obviously based on a confused and incorrect
       understanding of the status of the case.
¶ 14       We must vacate the trial court’s order of August 21, 2013, and remand the cause for a
       new hearing on defendant’s May 10, 2013, amended motion. In light of the prior confusion in
       this case, we remind both the trial court and the parties that, as we have previously vacated
       the trial court’s August 15, 2012, order, the trial court’s reduction of defendant’s sentence
       contained in that order is “nullified, canceled, and void.” See In re K.S., 365 Ill. App. 3d at
       577. Thus, defendant’s sentence stands at the original seven years, not the reconsidered six
       years, in the Department of Corrections. As defense counsel has already filed a Rule 604(d)
       certificate and a new motion following our February 2013 remand, all that remains to be
       done, pursuant to Lindsay, is to hold a new hearing on defendant’s amended motion. Of
       course, defendant is free to seek leave to file another amended motion if she determines that
       further amendment would be beneficial in light of this opinion, and the court has the
       discretion to grant or deny such leave. See In re Tyrese J., 376 Ill. App. 3d 689, 702 (2007)
       (“The circuit court has broad discretion in motions to amend pleadings prior to entry of final
       judgment ***.”).

¶ 15                                      III. CONCLUSION
¶ 16       The judgment of the circuit court of Kane County is vacated, and the cause is remanded
       for further proceedings in accordance with this opinion.

¶ 17      Vacated and remanded with directions.




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