People v. Kerkering

Rule 23 filed 10/3
Withdrawn, filed 10/25 nunc pro tunc.

NO. 4-94-0970

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
MARK KERKERING, ) No. 92CF2485
Defendant-Appellant. )
) Honorable
) Harold L. Jensen,
) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE COOK delivered the opinion of the

court:

In February 1993, defendant Mark Kerkering pleaded
guilty to one count of child pornography in violation of section
11-20.1(a)(6) of the Criminal Code of 1961 (Code) (720 ILCS 5/11-
20.1(a)(6) (West 1992)) and one count of criminal sexual assault
in violation of section 12-13(a)(3) of the Code (Ill. Rev. Stat.
1987, ch. 38, par. 12-13(a)(3)). In exchange for the plea, the
State agreed to drop nine other charges. There was no agreement
as to the sentence.
Defendant was sentenced to 3 years' imprisonment on the
child pornography charge and 10 years' imprisonment on the
criminal sexual assault charge. The sentences were made to run
concurrently. Defendant, through his attorney, filed a timely
motion to reconsider sentence. The trial court denied defen-
dant's motion, and defendant appealed, alleging the trial court
abused its discretion in sentencing him. This court vacated andremanded the cause, noting there was noncompliance with
Rule604(d) (145 Ill. 2d R. 604(d)) and concluding that "defendant
is entitled to a remand for the filing of a new motion to reduce
sentence." People v. Kerkering, No. 4-93-0495, slip order at 2
(September 23, 1994) (unpublished order under Supreme Court Rule
23).
Upon remand, defendant's attorney filed a proper Rule
604(d) certificate. Defense counsel, however, did not file a new
motion to reduce sentence. Defense counsel reargued the motion
before the court. In addition to matters raised in defendant's
motion to reconsider sentence, defense counsel argued that
defendant had been a model prisoner while his case was on appeal.
Defendant was present at this hearing. The trial court again
denied defendant's motion to reconsider sentence and defendant
again appeals. We affirm.
Defendant argues that this court must once again vacate
and remand this case because there was noncompliance with Rule
604(d), the supreme court's decision in People v. Janes, 158 Ill. 2d 27, 630 N.E.2d 790 (1994), and this court's previous order.
Specifically, defendant argues that, upon remand, defense counsel
was required to file not only a Rule 604(d) certificate, but also
a new motion to reconsider sentence.
In the first appeal, this court concluded that the case
had to be remanded under the authority of Janes. In Janes, the
defendant pleaded guilty to three counts of murder. The trial
court sentenced the defendant to death, and the defendant filed a
pro se motion to withdraw his guilty plea and a motion for
resentencing. The defendant's attorney stated that he felt as
though his obligations as a court-appointed attorney had termi-
nated, but that he would argue the motion nonetheless. The
defendant's attorney did not file a Rule 604(d) certificate.
The Janes court noted that all five districts of the
appellate court had held that Rule 604(d) requires strict compli-
ance. Janes, 158 Ill. 2d at 32, 630 N.E.2d at 792. The court
quoted with approval the fifth district's decision in People v.
Hayes, 195 Ill. App. 3d 957, 960-61, 553 N.E.2d 30, 32 (1990),
wherein the court found:
"'We are obliged to follow the supreme court
ruling in [People v. Wilk, 124 Ill. 2d 93,
529 N.E.2d 218 (1988),] and hold that defen-
dant be allowed to file a new motion to with-
draw his guilty plea and be allowed a new
hearing due to defense counsel's error in not
filing the required Rule 604(d) certifi-
cate.***'" Janes, 158 Ill. 2d at 33, 630 N.E.2d at 792.
The Janes court then affirmed the holdings of each district of
the appellate court which had "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." Janes, 158 Ill. 2d at 33,
630 N.E.2d at 792. The court then "unequivocally" stated that:
"with the exception of the motion require-
ments addressed in Wilk and [People v. Wal-
lace, 143 Ill. 2d 59, 570 N.E.2d 334 (1991)],
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." Janes, 158 Ill. 2d at 33, 630 N.E.2d at 792.
The supreme court retained jurisdiction and remanded the case "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 794.
In support of his argument that trial counsel's failure
to file a new motion to reconsider sentence requires a remand,
defendant relies upon the second district's decision in People v.
Oliver, 276 Ill. App. 3d 929, 659 N.E.2d 435 (1995). The facts
in Oliver are very similar to the facts in the case at bar. In
Oliver, the defendant filed a motion to withdraw her guilty plea.
The trial court denied the motion and the defendant appealed.
The second district vacated the trial court's ruling because
defense counsel had not filed a Rule 604(d) certificate. Upon
remand, the defendant's new attorney filed a Rule 604(d) certifi-
cate and stated that he had no amendments to the previously filed
motion. The defense attorney "stated that he would stand on the
previous motion. The State's Attorney stipulated that the
testimony would be the same as at the prior hearing." Oliver,
276 Ill. App. 3d at 931, 659 N.E.2d at 437. The trial court
again denied the defendant's motion, and the defendant appealed
again. Oliver, 276 Ill. App. 3d at 931, 659 N.E.2d at 437.
Picking up on the language in Janes 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" (emphasis added) (Janes, 158 Ill. 2d
at 33, 630 N.E.2d at 792), the Oliver court concluded that Janes
"requires a new motion and a new hearing after a remand for the
failure to comply with Rule 604(d)." (Emphasis added.) Oliver,
276 Ill. App. 3d at 932, 659 N.E.2d at 438. The court also held
that "[t]he failure to file a new motion alone would be suffi-
cient to render the second hearing nugatory." Oliver, 276 Ill.
App. 3d at 932, 659 N.E.2d at 438. The case was remanded again.
For reasons detailed below, we disagree with the Oliver court's
interpretation of Janes.
If a defendant wishes to appeal a guilty plea or the
sentence imposed by the trial court, he must strictly comply with
Rule 604(d). Janes, 158 Ill. 2d at 33, 630 N.E.2d at 792. Under
Rule 604(d), a defendant must first file a written motion to
withdraw the plea of guilty or to reconsider the sentence. The
motion must then be presented to the trial judge. If the defen-
dant is indigent, the court must appoint counsel. The
defendant's attorney must then file
"a certificate stating that the attorney has
consulted with the defendant *** to ascertain
his contentions of error in the sentence or
the entry of the plea of guilty, has examined
the trial court file and report of proceed-
ings of the plea of guilty, and has made any
amendments to the motion necessary for ade-
quate presentation of any defects in those
proceedings." 145 Ill. 2d R. 604(d).
The trial court must hear the motion promptly. If the motion is
denied, the defendant may then appeal.
In the instant case, defendant filed, through his
attorney, a timely motion to reconsider sentence. Until this
point, the defendant had complied with Rule 604(d). However,
defendant's attorney did not file a Rule 604(d) certificate, and
therefore did not comply with Rule 604(d). This being the case,
the trial court should not have proceeded to a hearing on the
motion. Upon remand, however, defendant's trial counsel filed
the necessary Rule 604(d) certificate. The court then held a new
hearing on the motion. Thus, contrary to defendant's appellate
attorney's contentions, defendant has now strictly complied with
Rule 604(d).
The question then becomes whether Janes or this court's
earlier order that "defendant is entitled to a remand for the
filing of a new motion to reduce sentence" (Kerkering, No. 4-93-
0495, slip order at 2 (September 23, 1994) (unpublished order
under Supreme Court Rule 23)) requires that defendant's attorney,
upon remand, file a new motion to reconsider sentence. We
conclude that they do not.
Rule 604(d) permits an attorney to amend a defendant's
motion to withdraw a plea of guilty if it is "necessary for
adequate presentation of any defects in those proceedings." 145
Ill. 2d R. 604(d). In the instant case, the defect in the pro-
ceedings below occurred when defendant's trial counsel initially
failed to file the Rule 604(d) certificate. Logically, 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. Regardless of whether the
attorney amends the motion, the attorney must then file the Rule
604(d) certificate. After the Rule 604(d) certificate has been
filed, the trial court must hold a second hearing on the motion.
This is because of the well-established rule that the filing of
the Rule 604(d) certificate is a condition precedent to a hearing
on the motion. People v. Hancock, 208 Ill. App. 3d 1092, 1093,
567 N.E.2d 633, 634 (1991).
We believe this decision comports with the Janes
decision. The Janes court based its decision upon the rationale
in several appellate court cases, and the Hayes decision in
particular. Nowhere 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. Rather, the Hayes court
held that the defendant should be "allowed to file a new motion
to withdraw his guilty plea and *** allowed a new hearing."
(Emphasis added.) Hayes, 195 Ill. App. 3d at 961, 553 N.E.2d at
32; see also People v. Denson, 243 Ill. App. 3d 55, 62, 611 N.E.2d 1230, 1234 (1993) (defendant will be allowed to file a new
motion to withdraw his guilty plea and will be allowed a hearing
on the new motion); People v. Vickery, 207 Ill. App. 3d 574, 576,
566 N.E.2d 495, 496 (1991) (adopting Hayes). Furthermore,
notwithstanding the language in Janes which suggests that the
filing of a new motion is required, the Janes court used permis-
sive 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
added.) Janes, 158 Ill. 2d at 36, 630 N.E.2d at 794.
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. There-
fore, 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.
This leaves the court with the question of whether
defendant's sentence was an abuse of discretion. We conclude
that it was not. The imposition of a sentence is a matter of
judicial discretion, and the standard of review to determine
whether a sentence is excessive is whether a trial court abused
that discretion. People v. McCain, 248 Ill. App. 3d 844, 850,
617 N.E.2d 1294, 1299 (1993). A trial court's sentencing deci-
sions are entitled to great deference and weight. McCain, 248
Ill. App. 3d at 850, 617 N.E.2d at 1299. Where a sentence falls
within the statutory guidelines, it will not be disturbed on
review unless it is manifestly disproportionate to the nature of
the case. People v. Nussbaum, 251 Ill. App. 3d 779, 783, 623 N.E.2d 755, 758 (1993).
Defendant was convicted of criminal sexual assault in
violation of section 12-13(a)(3) of the Code (Ill. Rev. Stat.
1987, ch. 38, par. 12-13(a)(3)). This is a Class 1 felony (Ill.
Rev. Stat. 1987, ch. 38, par. 12-13(b)) punishable by not less
than four years and not more than 15 years (Ill. Rev. Stat. 1987,
ch. 38, par. 1005-8-1(a)(4)). Defendant was charged with child
pornography in violation of section 11-20.1(a)(6) of the Code
(720 ILCS 5/11-20.1(a)(6) (West 1992)). This is a Class 4 felony
(720 ILCS 5/11-20.1(c) (West 1992)) punishable by not less than
one year and not more than three years (730 ILCS 5/5-8-1(a)(7)
(West 1992)). Defendant could have been sentenced to consecutive
terms of imprisonment. 730 ILCS 5/5-8-4(a) (West 1992). Defend-
ant's sentence falls within the statutory guidelines.
At the sentencing hearing, defendant offered several
factors in mitigation supporting a lesser sentence. In particu-
lar, defendant noted that (1) he had accepted responsibility for
his actions; (2) he had cooperated with police; (3) he lacked a
prior criminal record; (4) he was gainfully employed; (5) this
was an event that was unlikely to recur; (6) he was willing to
seek treatment and obey the terms of probation; and (7) his
family had a history of sexual abuse. However, the existence of
mitigating factors does not automatically obligate the court to
reduce the sentence from the maximum. People v. Houck, 185 Ill.
App. 3d 585, 588, 541 N.E.2d 813, 815 (1989).
The record also indicates that the trial court consid-
ered factors in aggravation. The trial court heard evidence that
defendant had been abusing his children for years. One of his
victims reported suffering serious ongoing problems as a result
of the years of abuse. The trial court found that it would be
inconsistent with the ends of justice to sentence defendant to
probation. In short, the record reveals that the trial court
properly considered all relevant mitigating and aggravating
factors when it determined defendant's sentence. In doing so,
the trial court imposed a sentence well within the statutory
range. The trial court did not abuse its discretion in its
sentencing defendant to concurrent terms of 3 years' imprisonment
for the child pornography conviction and 10 years' imprisonment
on the criminal sexual assault conviction.
For the foregoing reasons, the trial court's judgment
is affirmed.
Affirmed.
GREEN and KNECHT, JJ., concur.