                             2017 IL App (2d) 160493
                                  No. 2-16-0493
                            Opinion filed July 6, 2017
______________________________________________________________________________

                                           IN THE

                            APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Winnebago County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 11-CF-1688
                                       )
LEONARD R. FRICKS,                     ) Honorable
                                       ) Rosemary Collins,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       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
2017 IL App (2d) 160493


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

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



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2017 IL App (2d) 160493


       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 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




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2017 IL App (2d) 160493


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



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2017 IL App (2d) 160493


               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.

¶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

       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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2017 IL App (2d) 160493


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.



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