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12/22/95 PEOPLE STATE ILLINOIS v. TAMELA K. OLIVER

December 22, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
TAMELA K. OLIVER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Stephenson County. No. 86-CF-178. Honorable Lawrence A. Smith, Jr., Judge, Presiding.

The Honorable Justice Hutchinson delivered the opinion of the court: Doyle and Thomas, JJ., concur.

The opinion of the court was delivered by: Hutchinson

The Honorable Justice HUTCHINSON delivered the opinion of the court:

Defendant, Tamela Oliver, appeals the circuit court's order denying her motion to withdraw her guilty plea. She contends that the trial court proceedings following her prior appeal did not comply with this court's mandate.

Defendant pleaded guilty to one count of unlawful possession of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402(b)). Briefly stated, the factual basis for the plea was that police responded to a report of a disturbance at the Silver Knights Club in Freeport. They saw defendant driving a car with three passengers away from the club. Upon seeing the police car one of the passengers, later identified as Kevin Stanfield, left defendant's car and ran through a field.

The police stopped defendant's car, but a search of defendant and her remaining passengers revealed nothing illegal. However, police searched the car and found a medicine bottle containing less than one-tenth of a gram of a white powder on the hump near the front seat. The white powder later tested positive for cocaine. Police also found a pipe of a kind often used for smoking marijuana.

Defense counsel told the court that he thought the State would have difficulty proving that defendant possessed the cocaine, but that his client still desired to plead guilty. After admonishing defendant, the court accepted the plea.

Defendant moved to withdraw the plea prior to sentencing. At the hearing, defendant testified that the cocaine belonged to Stanfield and that she did not know of its existence prior to the traffic stop. She had been living with Stanfield for the past four years, during which he had beaten her many times. Although he never made any explicit threats, she assumed that he expected her to take the blame for his offense.

Lori Guth, a passenger in the car, also testified that the cocaine was Stanfield's. Defendant's mother testified that she had spoken with Stanfield and he told her, "I will take my charges."

The court denied the motion. Pursuant to a plea agreement, the State recommended a sentence of two years' probation with credit for 26 days served in jail. The court imposed the agreed-upon sentence, as well as fines totalling $520. Defendant appealed. This court vacated the trial court's order because defense counsel had not filed a certificate pursuant to Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)). (People v. Oliver (2d Dist. 1992), No. 2-90-1033 (unpublished order under Supreme Court Rule 23) (Oliver I).) We remanded the cause to the trial court for further proceedings.

Following remand, the trial court granted numerous continuances. Finally, on January 10, 1994, defendant's new public defender filed a Rule 604(d) certificate. Defense counsel stated that he had no amendments to make to the previously filed motion, but that a prison inmate (presumably Stanfield) had to be subpoenaed for the hearing. The court granted another continuance to allow defense counsel to secure the witness.

On April 8, 1994, defense counsel 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. The court again denied the motion, and defendant again appeals.

Relying on People v. Porter (1994), 258 Ill. App. 3d 200, 197 Ill. Dec. 226, 630 N.E.2d 1350, defendant contends that the perfunctory proceedings which occurred after the remand failed to comply with this court's mandate to conduct a new hearing. Defendant further contends that, in order to do justice and avoid further proceedings, this court should simply reverse the trial court's order and allow defendant to withdraw her guilty plea. Alternatively, defendant contends that, even if she is not entitled to any other relief, she should receive a $130 credit against her fines for time spent in custody prior to sentencing. Our resolution of the first issue makes it unnecessary to consider defendant's other contentions.

Rule 604(d) requires that a defendant's attorney file with the trial court a certificate stating that the attorney has consulted with defendant to ascertain his or her contentions of error, has examined the court file and report of proceedings of the guilty plea, and has made any amendments to the motion necessary for the adequate presentation of any defects in those proceedings. ( Porter, 258 Ill. App. 3d at 202-03; 145 Ill. 2d R. 604(d).) Strict compliance with the rule is required. ( People v. Janes (1994), 158 Ill. 2d 27, 33, 196 Ill. Dec. 625, 630 N.E.2d 790; People v. Dickerson (1991), 212 Ill. App. 3d 168, 171, 156 Ill. Dec. 426, 570 N.E.2d 902.) The supreme court has made clear that "the remedy for failure to strictly comply with each of the ...


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