Appeal from the Circuit Court of Peoria County; the Hon.
Stephen Covey, Judge, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
The State appeals from a suppression order entered by the circuit court of Peoria County, Illinois.
The defendant, Loren E. Meyers, was indicted for indecent liberties with a child. Prior to trial, the defendant moved to suppress certain statements and admissions on the basis that they had been obtained in violation of his sixth amendment right to counsel. The trial court granted the defendant's motion, and the State has appealed, contending that the court's ruling is contrary to the manifest weight of the evidence. The defendant, in addition to arguing that the trial court's order of suppression is sufficiently supported by the evidence of record, requests that this court dismiss the State's appeal. The basis for the defendant's request is that prior to filing its notice of appeal the State failed to certify to the trial court that the suppression order substantially impairs the State's ability to prosecute the case. (See People v. Young (1980), 82 Ill.2d 234, 412 N.E.2d 501.) Because of apparent inconsistencies in case-law interpreting the Young certification requirement and because a motion and objections involving the same were taken with the case herein, we address the issue in detail.
The facts relevant to the certification issue in the present case follow. On April 9, 1981, the trial court entered its order suppressing the defendant's statements. The State thereafter filed a notice of appeal on May 5, 1981; and on May 18, 1981, the office of the State Appellate Defender was appointed to represent the defendant. On August 3, 1981, the State, without notifying appellate defense counsel, returned to the trial court and filed a certification substantially complying with the Young requirement. On August 18, one week after filing its brief on appeal, the State filed its certification with this court as a supplemental volume to the record on appeal. This filing was unaccompanied by any motion or petition for leave to supplement the record, and there is no indication that the State gave appellate defense counsel notice of such filing. Nonetheless, on August 20, 1981, the defendant moved to strike the certification filed in this court. On August 27, 1981, the State filed an objection to the defendant's motion, and this court ruled that the motion and objection would be taken with the case.
Initially we note that the above-outlined pattern of conduct, as between the office of the State Appellate Defender and the State's Attorneys Appellate Service Commission, which represents the State on appeal, is not unprecedented since the Illinois Supreme Court announced the certification requirement in Young. See, e.g., People v. Hoffner (1981), 99 Ill. App.3d 516, 425 N.E.2d 603; People v. Norris (1981), 101 Ill. App.3d 664, 428 N.E.2d 987; People v. Jones (1981), 102 Ill. App.3d 238, 429 N.E.2d 1094; People v. Keath (1981), 101 Ill. App.3d 652, 428 N.E.2d 992.
Our inquiry in this case is two-pronged — (1) whether certification is necessary; and (2) whether certification, if required, may be filed after the State has filed its notice of appeal. In Hoffner, this court rejected the defendant's argument that the State, having failed to satisfy the Young certification requirement, thereby failed to perfect its right to an interlocutory appeal. We determined in Hoffner that the State was not required to file certification on the basis that "the Young decision does not apply * * * to State appeals of suppression orders from which the State was allowed to appeal prior to Young" (99 Ill. App.3d 516, 517, 425 N.E.2d 603, 605), and proceeded to decide the merits of the case. Today we re-examine our position.
Subsequent to our opinion in Hoffner, the Fourth District Appellate Court has ruled, contra to Hoffner, that the Young certification requirement applies to all suppression orders entered against the State. Specifically the court stated:
"We find nothing in Young indicating an intention to limit its certification requirement to orders not previously deemed appealable. Every expression of the court's holding is stated in terms indicating its applicability to all pretrial orders of suppression entered against the State. Its rationale is to limit such appeals to orders substantially impairing the prosecution." People v. Norris (1981), 101 Ill. App.3d 664, 667, 428 N.E.2d 987, 989; see also People v. Jones (1981), 102 Ill. App.3d 238, 241, 429 N.E.2d 1094, 1097-98; People v. Keath (1981), 101 Ill. App.3d 652, 655, 428 N.E.2d 992, 994.
The reasoning of the fourth district court, and the basis for the defendant's position herein, is that the court in Young clarified the existing Supreme Court Rule respecting State appeals (73 Ill.2d R. 604(a)(1)) by establishing a simple per se requirement that, henceforth (the court's opinion is dated October 17, 1980), the State, in order to pursue an interlocutory appeal under Rule 604(a)(1), must certify to the trial court that an order of suppression substantially impairs its ability to prosecute the case. In Young, the order of suppression resulted when the State sought to introduce statements which had been made under immunity granted by an Illinois statute. The court, in dicta, discussed the historical underpinnings of the new rule requiring certification, observing that the State historically had been permitted to appeal suppressions based on violations of search and seizure and involuntary confessions, but that, with respect to suppressions based on other grounds, the State was variously: (1) precluded from advancing interlocutory appeals; or (2) required to establish that the trial court's suppression order had the effect of blocking prosecution; or (3) permitted to appeal without apparent restriction. Following a thorough analysis of cases attempting to apply Rule 604 to State appeals, the Young court held that:
"Rule 604(a)(1) allows an interlocutory appeal by the State of a pretrial suppression order whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State's ability to prosecute the case." 82 Ill.2d 234, 247, 412 N.E.2d 501, 537.
• 1, 2 Having thoroughly reviewed Young and its progeny, we are convinced that the basis for suppression is no longer determinative of the State's duty to certify. Rather, the relevant inquiry is whether or not the trial court's order "suppressed" evidence. (People v. Phipps (1980), 83 Ill.2d 87, 413 N.E.2d 1277.) In the instant case, the defendant sought suppression of evidence (admissions and statements) allegedly obtained in violation of the defendant's sixth amendment right to counsel. Unquestionably, the trial court's order has the effect of "suppressing" evidence, since the defendant's admissions and statements would not be admissible against the defendant as evidence of his guilt. We hold, therefore, that certification was required in this case. To the extent that our opinion in Hoffner is inconsistent with the opinion herein, it should be, and hereby is, overruled.
We turn next to the timing of the State's certification. The defendant contends that a certification filed in the trial court after notice of appeal has been filed is untimely and such certification should be stricken from the record on appeal. In Hoffner, we ruled that certification filed by the State after its notice of appeal would be stricken. This decision logically followed from the determination that certification was not required in the first place. Since we have today decided that certification is, indeed, required in all State appeals from suppression orders, we will re-examine the timeliness aspect of the State's certification as well.
The defendant's position proceeds from the premise that the Young certification is a prerequisite to a State appeal; if the State attempts to file a notice of appeal before the certification has been filed, the appeal should be dismissed because the State has failed to establish its right to appeal. The State's response to this argument is that the Young certification is not jurisdictional, therefore the certificate may be filed at any time without approval of either the trial court or this court. While we agree that the Young certification requirement is not jurisdictional (Norris; Jones; Keath), we ...