                                                    NO. 5-08-0660
                   NOTICE

 Decision filed 09/22/10. The text of
                                                      IN THE
 this decision may be changed or

 corrected prior to the filing of a
                                            APPELLATE COURT OF ILLINOIS
 Peti tion   for    Rehearing   or   th e

 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,) Appeal from the
                                       ) Circuit Court of
      Plaintiff-Appellee,              ) Clinton County.
                                       )
v.                                     ) No. 06-CF-42
                                       )
JAMES MORTON, JR.,                     ) Honorable
                                       ) Dennis E. Middendorff,
      Defendant-Appellant.             ) Judge, presiding.
________________________________________________________________________

             JUSTICE DONOVAN delivered the opinion of the court:

             James Morton, Jr., defendant, pled guilty to predatory criminal sexual assault and was

sentenced by the circuit court of Clinton County to 24 years' imprisonment. Defendant filed

a motion to reduce his sentence, but counsel did not file a certificate of compliance with

Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)). The State agrees that a remand for the

filing of a Rule 604(d) certificate is required. The State also contends that defense counsel

does not necessarily have to file a new motion to reduce the sentence. We agree.

             The question presented here arises from differing interpretations of the remand

language found in People v. Janes, 158 Ill. 2d 27, 630 N.E.2d 790 (1994). In Janes, the

defendant pled guilty to murder and was sentenced to death. The defendant filed a motion

to withdraw his guilty plea, but counsel did not file a Rule 604(d) certificate. The trial court

denied the defendant's motion. In reversing the circuit court, the supreme court stated as

follows:

             "[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


                                                         1
       guilty plea or to reconsider sentence and a new hearing on the motion." Janes, 158

       Ill. 2d at 33, 630 N.E.2d at 792.

       The Janes court 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)." Janes, 158 Ill. 2d at 35-36, 630 N.E.2d at 793-94.

       In People v. Oliver, 276 Ill. App. 3d 929, 659 N.E.2d 435 (1995), the Second District

vacated the circuit court's denial of the defendant's motion to withdraw her guilty plea

because trial counsel had failed to file a Rule 604(d) certificate, and the court remanded the

cause for further proceedings. On remand, trial counsel filed the required certificate and

elected to stand on the original motion to withdraw the guilty plea. The State stipulated that

the testimony would be the same as at the prior hearing. The trial court again denied the

motion. On appeal, the defendant argued that the perfunctory proceedings which occurred

in the trial court after the remand did not comply with the appellate court's mandate to hold

a new hearing. The appellate court agreed, holding that Janes required both a new motion

to withdraw the guilty plea and a new hearing thereon. Oliver, 276 Ill. App. 3d at 932, 659

N.E.2d at 438. The Second District essentially reaffirmed this position in People v. Love,

385 Ill. App. 3d 736, 896 N.E.2d 1062 (2008), wherein it reversed the trial court's denial of

the defendant's motion to withdraw his guilty plea and remanded the cause "for defendant's

attorney to file a new motion under Rule 604(d) and otherwise to comply fully with the

requirements of that rule." Love, 385 Ill. App. 3d at 739, 896 N.E.2d at 1066.

       The Fourth District in People v. Kerkering, 283 Ill. App. 3d 867, 671 N.E.2d 368

(1996), disagreed with the analysis in Oliver. The Fourth District first vacated the trial

court's order denying the defendant's motion to reconsider his sentence and remanded the

cause because trial counsel had failed to file a Rule 604(d) certificate. On remand, defense

counsel filed the certificate but did not file a new motion to withdraw the plea. Following


                                              2
a new hearing on the original motion to reconsider the sentence, the trial court again denied

the motion. Citing Oliver, the defendant argued on appeal that Janes required counsel to file

both a certificate and a new Rule 604(d) motion. The Fourth District, disagreeing with the

Second District's interpretation of Janes, rejected the defendant's argument and affirmed the

judgment of the trial court. The court noted that while in one part of the Janes opinion, the

supreme court used language suggesting that the filing of a new Rule 604(d) motion was

mandatory, the supreme court also used permissive language when it remanded the cause to

the circuit court " 'to allow defendant to file a new motion to withdraw his guilty plea.' "

(Emphasis in original.) Kerkering, 283 Ill. App. 3d at 872, 671 N.E.2d at 372 (quoting

Janes, 158 Ill. 2d at 36, 630 N.E.2d at 794). The Fourth District reaffirmed this position in

People v. Davis, 298 Ill. App. 3d 630, 699 N.E.2d 591 (1998).

       We agree with the Fourth District's interpretation of Janes. As stated in Kerkering:

              "We believe a reading of Janes that makes the filing of a new Rule 604(d)

       motion permissive rather than mandatory is more logical and better suits the goal of

       judicial economy. Therefore, we hold 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' (145 Ill. 2d R. 604(d)) in the

       guilty plea or sentencing proceedings. Thereafter, the trial court must conduct a new

       hearing on the motion. In this case, defendant's trial attorney apparently did not

       believe that any amendments were necessary. The trial court conducted a new

       hearing. Accordingly, this case need not be remanded." Kerkering, 283 Ill. App. 3d

       at 872, 671 N.E.2d at 372.

       We also recognize that there are circumstances when the appellate court, after

reviewing the record, may decide that the filing of a new Rule 604(d) motion is required to


                                               3
adequately represent the defendant. See People v. Cloyd, 397 Ill. App. 3d 1084, 931 N.E.2d

261 (2010). This is not one of those instances. We, therefore, will leave it up to defense

counsel to determine whether a new motion to reduce the sentence should be filed to

adequately present defendant's objections to his sentence.

       Accordingly, the judgment of the circuit court is reversed, and the cause is remanded

with directions that defendant be allowed to file a new motion to reconsider sentence, if he

so chooses, that a new hearing on the motion be held, and that strict compliance with Rule

604(d) in filing a certificate under the rule be followed.



       Reversed; cause remanded with directions.



       CHAPMAN and SPOMER, JJ., concur.




                                              4
                                           NO. 5-08-0660

                                              IN THE

                                APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                            ) Circuit Court of
           Plaintiff-Appellee,              ) Clinton County.
                                            )
      v.                                    ) No. 06-CF-42
                                            )
      JAMES MORTON, JR.,                    ) Honorable
                                            ) Dennis E. Middendorff,
           Defendant-Appellant.             ) Judge, presiding.
___________________________________________________________________________________

Opinion Filed:        September 22, 2010
___________________________________________________________________________________

Justices:           Honorable James K. Donovan, J.

                 Honorable Melissa A. Chapman, J., and
                 Honorable Stephen L. Spomer, J.,
                 Concur
___________________________________________________________________________________

Attorneys        Michael J. Pelletier, State Appellate Defender, Johannah B. W eber, Deputy Defender,
for              Dan W. Evers, Assistant Appellate Defender, Office of the State Appellate Defender,
Appellant        117 N. Tenth Street, Suite 300, Mt. Vernon, IL 62864
___________________________________________________________________________________

Attorneys        Hon. John Hudspeth, State's Attorney, Clinton County Courthouse, Carlyle, IL
for              62231, Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Kevin D.
Appellee         Sweeney, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Fifth
                 District Office, 730 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL
                 62864
___________________________________________________________________________________
