                           Illinois Official Reports

                                  Appellate Court



                       People v. Evans, 2015 IL App (3d) 140753



Appellate Court       THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption               PAUL J. EVANS III, Defendant-Appellant.




District & No.        Third District
                      Docket No. 3-14-0753




Rule 23 Order filed   July 17, 2015
Motion to
publish allowed       August 17, 2015
Opinion filed         August 17, 2015




Decision Under        Appeal from the Circuit Court of Will County, No. 10-CF-2408; the
Review                Hon. Amy Bertani-Tomczak, Judge, presiding.



Judgment              Vacated; remanded with instructions.



Counsel on            Michael J. Pelletier and Sean Conley, both of State Appellate
Appeal                Defender’s Office, of Ottawa, for appellant.

                      James Glasgow, State’s Attorney, of Joliet (Robert M. Hansen, of
                      State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                      People.
     Panel                   JUSTICE O’BRIEN delivered the judgment of the court, with
                             opinion.
                             Justices Holdridge and Wright concurred in the judgment and opinion.



                                              OPINION

¶1         Defendant, Paul J. Evans III, pled guilty to home invasion (720 ILCS 5/12-11(a)(1) (West
       2010)) and was sentenced to a term of 12 years’ imprisonment. Defendant’s motion for
       reconsideration of his sentence was denied. Defendant appealed the denial of that motion three
       times, and each time this court remanded the matter for compliance with Illinois Supreme
       Court Rule 604(d) (eff. Dec. 11, 2014). On this appeal, defendant argues that the trial court
       acted prior to the filing of the mandate upon the most recent remand, and therefore lacked
       subject matter jurisdiction. We agree, and remand the matter for compliance with the most
       recent mandate.

¶2                                               FACTS
¶3         Defendant was charged by indictment with two counts of home invasion (720 ILCS
       5/12-11(a)(1), (2) (West 2010)) and one count each of residential burglary (720 ILCS
       5/19-3(a) (West 2010)), aggravated battery of a senior citizen (720 ILCS 5/12-4(b)(10) (West
       2010)), and aggravated battery (720 ILCS 5/12-4(b)(1) (West 2010)). Following appointment
       of the public defender, defendant entered an open plea of guilty to one count of home invasion
       in exchange for the nolle prosequi of the remaining charges. On November 16, 2011, the trial
       court sentenced defendant to a term of 12 years’ imprisonment. The court also made a finding
       of great bodily harm, in turn ordering that defendant serve 85% of his sentence.
¶4         On December 1, 2011, defendant’s trial counsel filed a motion to reconsider sentence,
       arguing that the sentence was excessive and that the finding of great bodily harm was against
       the manifest weight of the evidence. Counsel did not file a certificate in accordance with
       Supreme Court Rule 604(d). The trial court denied the motion and a notice of appeal was filed
       the same day. The Office of the State Appellate Defender (OSAD) was appointed to represent
       defendant on appeal.
¶5         On appeal, this court summarily remanded the matter for strict compliance with Supreme
       Court Rule 604(d). Trial counsel subsequently filed a new motion to reconsider sentence,
       along with a Rule 604(d) certificate. The motion was again denied, a second notice of appeal
       was filed, and OSAD was again appointed to represent defendant.
¶6         On the second appeal, OSAD argued that trial counsel’s Rule 604(d) certificate was
       noncompliant for failure to certify that counsel had reviewed the report of proceedings of the
       plea hearing. On July 23, 2013, this court entered an order vacating a duplicate DNA fee and
       remanding for new postsentencing proceedings in compliance with Supreme Court Rule
       604(d). People v. Evans, 2013 IL App (3d) 120355-U, ¶¶ 12, 15.
¶7         Trial counsel once again filed a new motion to reconsider sentence along with a new Rule
       604(d) certificate. Once again, the trial court denied the motion and a notice of appeal was


                                                  -2-
       filed. On appeal, the State confessed that the Rule 604(d) certificate was again noncompliant.
       On August 21, 2014, this court issued a summary order which again remanded the matter for
       compliance with Supreme Court Rule 604(d). A copy of this summary order (August 21 order)
       appears in the record and is file stamped August 25, 2014.
¶8         On August 27, 2014, the trial court addressed a member of the public defender’s office in
       open court, informing her that the cause had been remanded for a Rule 604(d) certificate and
       asking her to inform defendant’s trial counsel. The matter was set for hearing on September 10.
       Trial counsel appeared on that date, apologized to the court for the ongoing issues, and
       requested a September 25 date for a new motion to reconsider.
¶9         On September 25, 2014, counsel filed a new motion to reconsider sentence and a Rule
       604(d) certificate. The trial court denied the motion and directed the clerk to file a notice of
       appeal and an order appointing OSAD to represent defendant.
¶ 10       On October 7, 2014, this court served OSAD with notice of the issuance of the mandate for
       the August 21 order. The circuit court received the mandate on October 9, and set the matter
       for a “[r]eturn of [m]andate” hearing. On October 16, the court ordered the clerk to file the
       mandate. This appeal follows.

¶ 11                                             ANALYSIS
¶ 12       On appeal, defendant argues that the trial court’s most recent denial of his motion to
       reconsider sentence was void for lack of subject matter jurisdiction. Defendant contends that
       because the trial court had not filed the mandate received from this court when the trial court
       took action on his motion, the trial court had not yet been revested with jurisdiction over the
       case. We agree, and remand the matter for compliance with Supreme Court Rule 604(d) in
       accordance with our order of August 21, 2014.
¶ 13       The filing of a valid notice of appeal has two primary effects: it divests the lower court of
       jurisdiction, and appellate jurisdiction attaches instanter. People v. Smith, 228 Ill. 2d 95, 104
       (2008); People v. Stevenson, 2011 IL App (1st) 093413, ¶ 43. On remand from the reviewing
       court, the trial court does not regain jurisdiction until it files the reviewing court’s mandate.
       See People v. Adams, 36 Ill. 2d 492, 496 (1967) (“When the original mandate was recalled the
       case stood as if no mandate had been issued, and the trial court had no authority to proceed.”);
       People v. Farnsworth, 31 Ill. App. 3d 771, 773 (1975) (“The trial court did not acquire
       jurisdiction for the new trial until the date the mandate of this court was filed in the trial
       court.”); People v. Abraham, 324 Ill. App. 3d 26, 30 (2001) (“When a court of review issues a
       mandate, it vests a trial court with jurisdiction only to take action that conforms with the
       mandate.”). Any actions taken by the lower court when it has no jurisdiction are null and void.
       Stevenson, 2011 IL App (1st) 093413, ¶ 43.
¶ 14       In the present case, the entirety of the trial court’s proceedings upon receipt of our August
       21 order occurred prior to the October 16 filing of the mandate. The trial court informed the
       public defender’s office of the remand, trial counsel filed a new motion to reconsider sentence,
       and the trial court denied that motion and ordered the filing of a new notice of appeal all before
       jurisdiction had been revested in the trial court. Because the trial court acted without
       jurisdiction, we find those proceedings to be null and void.
¶ 15       The State does not dispute that the trial court lacked jurisdiction prior to the filing of the
       mandate, but argues that, under the doctrine of invited error, defendant “cannot request at trial


                                                   -3-
       to proceed one way and then claim on appeal that was error.” However, it is axiomatic that the
       lack of subject matter jurisdiction is not subject to waiver and may not be cured through
       consent of the parties. E.g., People v. Bannister, 236 Ill. 2d 1, 23 (2009). Indeed, in this
       context, “ ‘[t]he parties cannot, by agreement, acquiescence, or otherwise, revest jurisdiction
       in the trial court when jurisdiction lies in the appellate court.’ ” Stevenson, 2011 IL App (1st)
       093413, ¶ 43 (quoting People v. Henry, 329 Ill. App. 3d 397, 403 (2001)).
¶ 16        The State also argues that, in the interest of judicial economy, this court should refuse to
       remand the present matter for a fourth time. The State cites extensively to People v. Shirley,
       181 Ill. 2d 359 (1998), in which our supreme court refused to remand a case based on trial
       counsel’s failure to file a Rule 604(d) certificate where remand would provide the defendant
       with his third hearing on his excessive sentence claim. The court found that “requiring another
       remand and hearing on the motion to reduce sentences would be an empty and wasteful
       formality.” Id. at 370. The State points out that remand here would provide defendant with his
       fifth hearing on his motion to reconsider sentence.
¶ 17        In Shirley, however, the supreme court acted within its discretion in not remanding for
       Rule 604(d) compliance. We have no such discretion at our disposal in the case at hand. The
       trial court here was without jurisdiction prior to the October 16 filing of the mandate. Any
       order entered by the trial court before that date is void and vacated. We therefore must remand
       the matter so the trial court may comply with the mandate of our order of August 21, 2014.

¶ 18                                         CONCLUSION
¶ 19       The judgment of the circuit court of Will County is vacated and the cause is remanded with
       instructions.

¶ 20      Vacated; remanded with instructions.




                                                   -4-
