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10/03/96 PEOPLE STATE ILLINOIS v. MARK KERKERING

October 3, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARK KERKERING, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Champaign County. No. 92CF2485. Honorable Harold L. Jensen, Judge Presiding.

As Corrected January 2, 1997.

Honorable Robert W. Cook, P.j., Honorable Frederick S. Green, J. - Concur, Honorable James A. Knecht, J. - Concur

The opinion of the court was delivered by: Cook

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 defendant'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 Rule 604(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 People v. Kerkering, No. 4-93-0495, slip order at 2 (September 23, 1994) (unpublished order under Supreme Court Rule 23).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, 196 Ill. Dec. 625 (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 terminated, 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 compliance. 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, 142 Ill. Dec. 680 (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, 124 Ill. Dec. 398 (1988),] and hold that defendant be allowed to file a new motion to withdraw his guilty plea and be allowed a new hearing due to defense counsel's error in not filing the required Rule 604(d) certificate ***.'" 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:

"ith the exception of the motion requirements addressed in Wilk and [ People v. Wallace, 143 Ill. 2d 59, 570 N.E.2d 334, 155 Ill. Dec. 821 (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 ...


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