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                                 Appellate Court                         Date: 2017.10.16
                                                                         08:31:12 -05'00'




                   People v. Fricks, 2017 IL App (2d) 160493



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           LEONARD R. FRICKS, Defendant-Appellant.



District & No.    Second District
                  Docket No. 2-16-0493



Filed             July 6, 2017



Decision Under    Appeal from the Circuit Court of Winnebago County, No.
Review            11-CF-1688; the Hon. Rosemary Collins, Judge, presiding.



Judgment          Vacated and remanded.


Counsel on        Michael J. Pelletier, Thomas A. Lilien, and Vicki P. Kouros, of State
Appeal            Appellate Defender’s Office, of Elgin, for appellant.

                  Joseph P. Bruscato, State’s Attorney, of Rockford (Patrick Delfino,
                  Lawrence M. Bauer, and Steven A. Rodgers, of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE McLAREN delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Hudson and Justice Spence concurred in the
                  judgment and opinion.
                                              OPINION

¶1        Defendant, Leonard R. Fricks, entered a nonnegotiated plea of guilty to a single count of
     first degree murder (720 ILCS 5/9-1(a)(2) (West 2010)) and was sentenced to a 60-year
     prison term (which included a 20-year sentencing enhancement for personally discharging a
     firearm during the commission of the offense (730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2010))).
     Prior to sentencing, defendant unsuccessfully moved to withdraw his guilty plea, contending,
     inter alia, that his attorney, Wendell Coates, had made false assurances about the length of
     the sentence defendant would receive. Another attorney, Michael J. Phillips, represented
     defendant in connection with the motion. After the trial court imposed sentence, Phillips filed
     a motion to reduce defendant’s sentence. The trial court denied the motion and defendant
     appealed. Because Phillips did not properly certify compliance with Illinois Supreme Court
     Rule 604(d) (eff. Feb. 6, 2013), we vacated the denial of the motion and remanded the matter
     for proceedings in compliance with that rule. People v. Fricks, No. 2-14-0054 (Aug. 11,
     2014) (minute order). On remand, defendant was represented by attorney Gary V. Pumilia,
     who filed a second amended motion to withdraw defendant’s guilty plea, along with a proper
     certificate under the amended Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016). The
     trial court denied that motion. Pumilia also advised the trial court that defendant was
     “standing on and adopting” his prior motion to reduce his sentence. When Pumilia informed
     the trial court that it had previously ruled on the motion to reduce defendant’s sentence, the
     trial court stated, “So that ruling will stand.” Pumilia did not ask to be heard on, and there
     were no further proceedings relative to, the motion to reduce defendant’s sentence. This
     appeal followed. Because there was no hearing on remand on the motion to reduce
     defendant’s sentence, yet another remand is necessary.
¶2        Rule 604(d) provides, in pertinent part, as follows:
              “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. *** The trial court shall *** determine whether the defendant is
              represented by counsel, and if the defendant is indigent and desires counsel, the trial
              court shall appoint counsel. *** The defendant’s attorney shall file with the trial court
              a certificate stating that the attorney has consulted with the defendant *** 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.” Ill. S. Ct. R. 604(d) (eff. Mar. 8, 2016).
¶3        It is well established that the attorney’s certificate must strictly comply with the
     requirements of Rule 604(d). See People v. Janes, 158 Ill. 2d 27, 35 (1994). If the certificate
     does not satisfy this standard, a reviewing court must remand the case to the trial court for
     proceedings that strictly comply with Rule 604(d), including “a new hearing on the motion.”
     Id. at 33. Defendant argues that the proceedings on remand were deficient because there was
     no hearing on the motion to reduce defendant’s sentence. The State argues that, although


                                                 -2-
     defendant had the right to a hearing, he chose, through counsel, not to exercise that right. We
     conclude, however, that a defendant is not permitted to make that choice.
¶4       In Janes, our supreme court observed that the courts in People v. Denson, 243 Ill. App.
     3d 55 (1993), People v. Dickerson, 212 Ill. App. 3d 168 (1991), People v. Vickery, 207 Ill.
     App. 3d 574 (1991), People v. Johnson, 207 Ill. App. 3d 122 (1990), and People v. Hayes,
     195 Ill. App. 3d 957 (1990), granted 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) as a remedy for counsel’s failure to comply with the certificate
     requirement. Immediately after that observation, the Janes court stated, “With this opinion,
     we affirm the holdings of these cases and unequivocally state that, [with the exception of the
     requirement that the defendant file a motion to withdraw his or her plea or to reconsider his
     or her sentence], 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.” Id. In People v. Oliver, 276 Ill.
     App. 3d 929 (1995), we read this to mean that a new motion and a new hearing were
     required on remand.
¶5       In People v. Lindsay, 239 Ill. 2d 522 (2011), our supreme court concluded, contrary to
     Oliver, that filing a new motion on remand is optional. The Lindsay court reasoned as
     follows:
             “There is no question that this court used language in Janes that, in 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.’ [Citation.]
                 And we can hardly fault the Oliver court for giving authoritative weight to this
             portion of our decision. That said, *** 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.) [Citation.] 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 *** 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.) [Citation.]
                 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.” (Emphases in original.) Id. at 528-29.



                                                -3-
¶6         In the case now before us, the State seeks to extend Lindsay’s reasoning to the
       requirement that a new hearing be held on remand. According to the State, although
       defendant had a right to a new hearing, he was not required to exercise that right. 1 However,
       that argument is contrary to Lindsay’s express holding:
               “[W]e 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.” Id. at 531.
       The Lindsay court used permissive language with reference to filing a new motion: the
       defendant is to be afforded the “opportunity” to do so “if counsel concludes that a new
       motion is necessary.” Id. The Lindsay court did not use such language with reference to
       holding a new hearing. Presumably, the Lindsay court crafted its holding with care, so as to
       avoid the kind of misinterpretation that occurred in Oliver. Thus, if the Lindsay court had
       intended the new motion hearing to be optional, we cannot fathom why the court would not
       have said so explicitly.
¶7         In the present case, there was no hearing on remand on the motion to reduce defendant’s
       sentence. Indeed, the motion was not considered anew. Pumilia merely acceded to the trial
       court’s previous ruling, which the trial court merely reiterated. The trial court did not review
       the original hearing on the motion. Pumilia did not summarize what transpired at that hearing
       for the trial court’s benefit. Thus, what occurred on remand was a “mere charade performed
       for the purpose of reinstating an appeal.” People v. Tejada-Soto, 2012 IL App (2d) 110188,
       ¶ 14.
¶8         The State relies on People v. Shirley, 181 Ill. 2d 359, 369 (1998), which found “limited
       value” in an additional remand where, on the first remand, the defendant “was afforded a full
       and fair second opportunity to present a motion for reduced sentencing.” The context for that
       statement is the Shirley court’s rejection of “defendant’s implicit premise that the strict
       compliance standard of [Janes] must be applied so mechanically as to require Illinois courts
       to grant multiple remands and new hearings following the initial remand hearing.”
       (Emphasis added.) Id. Thus, Shirley presupposes that an “initial remand hearing” actually
       took place. The failure here to hold any hearing on remand on defendant’s motion to reduce
       his sentence clearly distinguishes this case from Shirley. We thus conclude that this case
       must again be remanded for a hearing on defendant’s motion to reduce his sentence.
¶9         For the foregoing reasons, we vacate the order of the circuit court of Winnebago County
       denying defendant’s motion to reduce his sentence. We remand for a new hearing on the
       motion.

¶ 10       Vacated and remanded.

           1
             The State contends that defendant “was in full agreement with defense counsel’s decision to
       forego [sic] presentation of the motion to reconsider sentence.” The record does not support the
       contention. Although the State cites portions of the record indicating that defendant and counsel
       discussed sentencing issues, the State cites nothing showing that defendant specifically agreed that a
       hearing was unnecessary. In any event, the State also cites nothing establishing that defendant was
       entitled to personally decide whether there would be a hearing.

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