                         Docket No. 110089.


                              IN THE
                      SUPREME COURT
                                 OF
                 THE STATE OF ILLINOIS




THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
           ROBERT W. LINDSAY, Appellee.

                  Opinion filed January 21, 2011.



   JUSTICE THOMAS delivered the judgment of the court, with
opinion.
   Chief Justice Kilbride and Justices Freeman, Garman, Karmeier,
Burke, and Theis concurred in the judgment and opinion.



                              OPINION

    The issue in this case is whether, on remand for the failure to file
a Rule 604(d) certificate of compliance, defense counsel also must file
a new motion to withdraw the guilty plea and/or reconsider the
sentence. We hold that, where counsel concludes that the original
motion is sufficient, a new motion need not be filed.

                          BACKGROUND
    Defendant, Robert W. Lindsay, pleaded guilty to one count of
delivering a controlled substance (720 ILCS 570/401(a)(2)(C) (West
2006)) and was sentenced to 14 years in prison. Defense counsel filed
a motion to reconsider the sentence but did not file a Rule 604(d)
certificate of compliance. Ill. S. Ct. R. 604(d) (eff. July 1, 2006). The
circuit court of Du Page County denied defendant’s motion, and
defendant appealed. In an unpublished order, the appellate court
reversed and remanded for compliance with Rule 604(d). People v.
Lindsay, No. 2–07–1198 (Mar. 26, 2008) (unpublished order under
Supreme Court Rule 23). On remand, defense counsel filed a Rule
604(d) certificate but did not file a new motion to reconsider the
sentence. Instead, she stood on the original motion, telling the trial
court:
         “There really is nothing to add. [W]e did have argument on
         the motion at the time, and I really don’t have anything to add
         to that. The court is aware of what was argued at the time.”
After stating that it had reviewed the file, reviewed the PSI report, and
reviewed the proceedings from the original hearing on defendant’s
motion to reconsider, the trial again denied the motion.
    Defendant appealed again, and again the appellate court reversed
and remanded. No. 2–09–0245 (unpublished order under Supreme
Court Rule 23). According to the appellate court, defense counsel on
remand was required to file not only a Rule 604(d) certificate of
compliance but also a new motion to reconsider defendant’s sentence.
In reaching this result, the court relied exclusively on People v. Oliver,
276 Ill. App. 3d 929 (1995), which held that this court’s decision in
People v. Janes, 158 Ill. 2d 27 (1994), “requires a new motion and a
new hearing after a remand for the failure to comply with Rule
604(d).” Oliver, 276 Ill. App. 3d at 932. At the same time, the court
expressly declined to follow People v. Kerkering, 283 Ill. App. 3d 867
(4th Dist. 1996), which construed Janes to say that, “when a case is
remanded for the filing of a Rule 604(d) certificate, the attorney need
only file a new motion to reconsider sentence or to withdraw guilty
plea if he or she determines that such action is ‘necessary for [the]
adequate presentation of any defects.’ ” Id. at 872 (quoting Ill. S. Ct.
R. 604(d) (eff. Aug. 1, 1992)).
    The State appealed to this court, asking us to resolve the conflict
between Oliver and Kerkering. We allowed the State’s petition for
leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).



                                   -2-
                            DISCUSSION
    In this case, we are asked to clarify our interpretation of Supreme
Court Rule 604(d), as set forth in People v. Janes, 158 Ill. 2d 27
(1994). This is a question of law, and our review therefore is de novo.
In re D.S., 198 Ill. 2d 309, 321 (2001).

                              The Conflict
    We begin at the source. In Janes, the defendant entered an open
guilty plea to three counts of murder and was sentenced to death.
Immediately thereafter, defendant filed a pro se motion to withdraw
the guilty plea and reconsider the sentence. Although appointed
counsel argued the motions on defendant’s behalf, he did not file a
certificate stating compliance with Rule 604(d). In reversing and
remanding, this court began by examining a series of factually
analogous appellate court decisions. According to this court, the
appellate court in those cases concluded that the appropriate remedy
for the failure to file a Rule 604(d) certificate was to “grant[ ] the
defendants therein the right to file a new motion to withdraw guilty
plea and the right to have a hearing on the new motion.” (Emphasis
added.) Janes, 158 Ill. 2d at 33. The court then stated:
         “With this opinion, we affirm the holdings of these cases and
         unequivocally state that, with [certain exceptions not relevant
         here], the remedy for failure to strictly comply with each of
         the provisions of Rule 604(d) is a remand to the circuit court
         for the filing of a new motion to withdraw guilty plea or to
         reconsider sentence and a new hearing on the motion.”
         (Emphases added.) Id.
The court then remanded the cause to the circuit court “to allow
defendant to file a new motion to withdraw his guilty plea and for a
hearing on that motion in full compliance with Rule 604(d).”
(Emphasis added.) Id. at 36.

                                 Oliver
    The first appellate decision to construe Janes was People v.
Oliver, 276 Ill. App. 3d 929 (1995). In Oliver, as in Janes, defense
counsel failed to file a Rule 604(d) certificate. Accordingly, the court
remanded for compliance with Rule 604(d). On remand, defense

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counsel filed a Rule 604(d) certificate but did not file a new motion to
withdraw the guilty plea. Instead, counsel stood on the original
motion and, with the State, stipulated that the testimony at the hearing
on that motion would be the same. The trial court again denied the
motion, and the defendant appealed.
     The appellate court again reversed and remanded, holding that, in
Janes, “[t]he supreme court *** made clear that ‘the remedy for
failure to strictly comply with each of the provisions of Rule 604(d)
is a remand to the circuit court for the filing of a new motion to
withdraw guilty plea or to reconsider sentence and a new hearing on
the motion.’ ” Oliver, 276 Ill. App. 3d at 931 (quoting Janes, 158 Ill.
2d at 33). Under this rule, the proceedings on remand failed for two
reasons. First, “[t]he failure to file a new motion alone would be
sufficient to render the second hearing nugatory.” Id. at 932. Second,
the “hearing” on remand was a sham, in that “no effort was made to
restate for the court’s benefit the evidence from the previous hearing,
which occurred more than two years earlier, or to argue inferences
from the evidence.” Id. For both of the reasons, the appellate court
concluded that “[t]he proceedings below were defective, and the cause
must again be remanded.” Id.

                                Kerkering
    The next case to construe Janes was People v. Kerkering, 283 Ill.
App. 3d 867 (1996), another case in which defense counsel neglected
to file a Rule 604(d) certificate. On remand, defense counsel filed a
proper certificate but did not file a new motion to reconsider the
sentence. Instead, counsel simply stood on and reargued the original
motion, which the trial court again denied. This time, the appellate
court affirmed. Id. at 873.
    The Kerkering court began its analysis by walking through the
process set forth in Rule 604(d). Under that rule, counsel is permitted
to amend a defendant’s motion to withdraw the guilty plea and/or
reconsider the sentence if it is “necessary for adequate presentation of
any defects in those proceedings.” Ill. S. Ct. R. 604(d) (eff. July 1,
2006). Whether counsel amends the motion or not, counsel must file
a certificate stating that he or she has reviewed the proceedings for
potential error and, if necessary, amended the motion. Ill. S. Ct. R.


                                  -4-
604(d) (eff. July 1, 2006). Once counsel files the certificate, the trial
court may then hear and decide the motion. Ill. S. Ct. R. 604(d) (eff.
July 1, 2006). In Kerkering, “the defect in the proceedings” was
counsel’s failure to file a Rule 604(d) certificate. Kerkering, 283 Ill.
App. 3d at 871. Consequently, the court concluded, “this is where the
case should begin again upon remand: with the attorney reviewing the
proceedings for potential error and, if necessary, making amendments
to the motion.” (Emphasis omitted.) Id.
     In reaching this result, the Kerkering court expressly “disagree[d]
with the Oliver court’s interpretation of Janes.” Id. at 870. According
to Kerkering, although Janes contains language that, on its face,
appears to mandate the filing of a new motion on remand, the Janes
court “based its decision upon the rationale in several appellate court
cases, and the Hayes decision in particular.” Id. at 871 (citing People
v. Hayes, 195 Ill. App. 3d 957 (1990)). Kerkering found this
significant because “[n]owhere in the Hayes opinion is it stated that,
upon remand, trial counsel must file a new motion to reconsider
sentence or to withdraw guilty plea.” (Emphasis omitted.) Id. at 871-
72. Rather, Hayes held only that the defendant be “ ‘allowed to file a
new motion to withdraw his guilty plea and *** allowed a new
hearing.’ ” (Emphases in original.) Id. at 872 (quoting Hayes, 195 Ill.
App. 3d at 961). As importantly, Kerkering observed, notwithstanding
any mandatory language to the contrary, the Janes court “used
permissive language when it remanded the cause ‘to allow defendant
to file a new motion to withdraw his guilty plea and for a hearing on
that motion in full compliance with Rule 604(d).’ ” (Emphasis in
original.) Id. (quoting Janes, 158 Ill. 2d at 36). Thus, Kerkering
concluded, the proper reading of Janes is that “when a case is
remanded for the filing of a Rule 604(d) certificate, the attorney need
only file a new motion to reconsider sentence or to withdraw guilty
plea if he or she determines that such action is ‘necessary for [the]
adequate presentation of any defects’ [citation] in the guilty plea or
sentencing proceedings.” Id. (quoting Ill. S. Ct. R. 604(d) (eff. Aug.
1, 1992)).
                                 Resolution
     After reviewing both Oliver and Kerkering, we are convinced that
Kerkering represents the better reading of our decision in Janes.
There is no question that this court used language in Janes that, in

                                  -5-
isolation, appears to mandate the filing of a new motion on remand:
        “[T]he remedy for failure to strictly comply with each of the
        provisions of Rule 604(d) is a remand to the circuit court for
        the filing of a new motion to withdraw guilty plea or to
        reconsider sentence and a new hearing on the motion.” Janes,
        158 Ill. 2d at 33.
And we can hardly fault the Oliver court for giving authoritative
weight to this portion of our decision. That said, Kerkering correctly
noted that the preceding language does not appear in isolation but
rather immediately follows the court’s explicit endorsement of a series
of appellate court decisions holding that the appropriate remedy for
the failure to file a Rule 604(d) certificate is to “grant[ ] the
defendants therein the right to file a new motion to withdraw guilty
plea and the right to have a hearing on the new motion.” (Emphases
added.) Janes, 158 Ill. 2d at 33. Unlike the language relied upon in
Oliver, this language is permissive, allowing individual defendants to
decide on a case-by-case basis whether the filling of a new motion on
remand is warranted. And significantly, it was this permissive
language that the court employed in the concluding paragraph of the
decision, where the court sets forth its instructions for the remand:
            “Therefore, pursuant to this court’s supervisory authority,
        we retain jurisdiction and remand this cause to the circuit
        court of Cumberland County to allow defendant to file a new
        motion to withdraw his guilty plea and for a hearing on that
        motion in full compliance with Rule 604(d).” (Emphasis
        added.) Id. at 35-36.
Clearly, nothing in this language mandates or requires the filing of a
new motion on remand. On the contrary, the court was simply
allowing defendant–that is, giving him the opportunity–to file a new
motion on remand. Whether he exercised that option was entirely up
to him.
    We also note that, since Janes, this court has never characterized
that decision as mandating the filing of a new motion on remand. In
fact, when the case was back before this court following the ordered
remand, we stated that, in the initial appeal:
        “[t]his court *** ruled that strict compliance with Rule
        604(d)’s certification requirements was necessary and

                                 -6-
         remanded the cause to the trial court for a new hearing on the
         motion to withdraw the guilty plea.” (Emphasis added.)
         People v. Janes, 168 Ill. 2d 382, 386 (1995).
In other words, less than one year later and in the context of the very
same case, this court described Janes as requiring only a Rule 604(d)
certificate and a new hearing. Nowhere did the court say that the filing
of a new motion was likewise required. Similarly, in People v. Shirley,
181 Ill. 2d 359, 368 (1998), the court explained that, under Janes, the
appropriate remedy for a lack of compliance with Rule 604(d)’s
certification requirement is “to remand the cause to the circuit court
to permit the defendant to file a new motion to withdraw his plea.”
(Emphasis added.) This, too, is confirmation that, from this court’s
perspective, the holding in Janes is found in the permissive language
from that decision and not in the mandatory language. See also People
v. Linder, 186 Ill. 2d 67, 69 (1999) (stating that, under Janes,
“[w]here counsel has not satisfied the rule’s certification requirement
*** the cause must be remanded to the trial court to permit the filing
of a new motion to reconsider and a new hearing on that motion”
(emphasis added)).
     Finally, we note that Kerkering’s reading of Janes accomplishes
all of Rule 604(d)’s purposes, while avoiding the filing of unnecessary
or redundant pleadings. Under Rule 604(d), a defendant who pleads
guilty and wishes to appeal must first file a timely written motion to
withdraw the guilty plea and/or to reconsider the sentence. If the
defendant is indigent, defense counsel must then file:
         “a certificate stating that the attorney has consulted with the
         defendant *** to ascertain defendant’s contentions of error in
         the sentence or the entry of the plea of guilty, has examined
         the trial court file and report of proceedings of the plea of
         guilty, 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, 2006).
The trial court must hear the motion promptly. If the motion is denied,
the defendant may then appeal.
     Here, defendant filed, through his appointed counsel, a timely
motion to reconsider the sentence. That motion was presented to the
trial court, which heard the motion and denied it. Unfortunately,


                                  -7-
defense counsel had neglected to file a Rule 604(d) certificate, so the
appellate court reversed and remanded the cause for compliance with
Rule 604(d). On remand, defense counsel filed the requisite certificate,
stating that she had consulted with defendant to ascertain his
contentions of error, had examined the trial court file and report of
proceedings, and had made any necessary amendments to the motion.
The trial court then considered the motion a second time, and once
again denied it. At this point, every requirement of Rule 604(d) was
fully complied with, and nothing more would have been accomplished
or achieved by the filing of a new motion.
     In sum, we hold that, when defense counsel neglects to file a Rule
604(d) certificate, the appropriate remedy 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. The remand in this case accomplished all of these things, and
the appellate court therefore had no cause to once again reverse and
remand.

                          CONCLUSION
    For the foregoing reasons, the judgment of the appellate court is
reversed, and the judgment of the circuit court is affirmed.

    Appellate court judgment reversed;
    circuit court judgment affirmed.




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