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02/28/94 PEOPLE STATE ILLINOIS v. BRIAN PACKARD

February 28, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
BRIAN PACKARD, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 92-CF-27. Honorable Henry C. Tonigan, Judge, Presiding.

As Modified on Denial of Rehearing April 27, 1994. Released for Publication April 27, 1994.

Bowman, Doyle, Colwell

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, Brian Packard, pleaded guilty to one count of aggravated criminal sexual assault and one count of aggravated kidnapping. He appeals from the trial court's denial of his motion to reconsider the sentence.

Originally, after pleading guilty, defendant filed two motions to withdraw his guilty pleas, but the motions were denied on May 11, 1989. On July 27, 1989, defendant was sentenced to concurrent terms of 45 years' imprisonment for aggravated criminal sexual assault and 15 years' imprisonment for aggravated kidnapping. Defendant appealed to this court, and on November 5, 1991, this court vacated the trial court's judgment because the trial court failed adequately to admonish defendant of the minimum and maximum sentences to which he could be sentenced. This court remanded the cause for further proceedings. ( People v. Packard (1991), 221 Ill. App. 3d 295, 163 Ill. Dec. 683, 581 N.E.2d 837.) On remand, defendant once again pleaded guilty to aggravated criminal sexual assault and aggravated kidnapping. Defendant was sentenced to concurrent terms of 40 years' imprisonment for aggravated criminal sexual assault and 15 years' imprisonment for aggravated kidnapping. Defendant filed a timely motion to reconsider the sentence, which was denied on October 20, 1992. He has appealed to this court, raising as his sole issue whether his attorney's failure to file a certificate in accordance with Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)) mandates that this cause be remanded for a new hearing on the motion to reconsider the sentence.

Defendant filed his motion to reconsider the sentence on September 16, 1992. Effective August 1, 1992, Supreme Court Rule 604(d) provided in part:

"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 his plea of guilty and vacate the judgment." (145 Ill. 2d R. 604(d).)

Rule 604(d) further provides:

"The defendant's attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the sentence or in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings." (145 Ill. 2d R. 604(d).)

In People v. Wilk (1988), 124 Ill. 2d 93, 105, 124 Ill. Dec. 398, 529 N.E.2d 218, the Illinois Supreme Court held that Rule 604(d) establishes a condition precedent for an appeal from a guilty plea, and a defendant who wishes to withdraw the plea must first file a motion to withdraw the guilty plea and vacate the judgment. Later cases have followed the supreme court's lead and have determined that strict compliance with the requirements of Rule 604(d) is mandated. Specifically, this court in People v. Dickerson (1991), 212 Ill. App. 3d 168, 171, 156 Ill. Dec. 426, 570 N.E.2d 902, held that defense counsel must file a Rule 604(d) certificate as a condition precedent to a hearing on defendant's motion to withdraw his plea of guilty and to vacate the judgment. In this case, however, defendant did not seek to withdraw his guilty plea and vacate the judgment. He only sought reconsideration of the sentence imposed. We must determine whether, as defendant argues, a defense attorney must file a certificate of compliance with Rule 604(d) when defendant only seeks reconsideration of his sentence.

This exact issue has been raised and answered in the negative under Rule 604(d) prior to its most recent amendment. The courts considering the issue have held that where a defendant has filed only a motion to reconsider the sentence entered upon a plea of guilty, the filing of a Rule 604(d) certificate is not required. People v. Grimes (1992), 226 Ill. App. 3d 1029, 1033, 168 Ill. Dec. 789, 590 N.E.2d 111; People v. Christy (1991), 220 Ill. App. 3d 1029, 1030, 163 Ill. Dec. 470, 581 N.E.2d 421; People v. Dickerson (1991), 216 Ill. App. 3d 561, 565, 159 Ill. Dec. 128, 575 N.E.2d 935 (it is not a violation of equal protection to require a certificate of compliance where a defendant seeks to withdraw his guilty plea but not to require a certificate of compliance where a defendant only seeks review of his sentence); People v. Jordan (1991), 209 Ill. App. 3d 983, 986, 154 Ill. Dec. 767, 568 N.E.2d 988.

Supreme Court Rule 604(d), before its most recent amendment provided:

"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 withdraw his plea of guilty and vacate the judgment. * * * The defendant's attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of ...


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