Appeal from the Circuit Court of Cook County No. 99 CR 25364-02, Honorable Dennis A. Dernbach Judge Presiding.
The opinion of the court was delivered by: Justice Hall
Defendant Charles Johnson was charged with one count of armed robbery, one count of armed violence, one count of possession of a stolen motor vehicle, one count of aggravated battery, nine counts of aggravated kidnaping, and three counts of unlawful use of a weapon in connection with the kidnaping of Elmora Kimbrough and her 20-month-old granddaughter, Paige Kimbrough. The record shows that on October 23, 1999, defendant, along with four co-defendants, carried out a plan to kidnap Elmora Kimbrough in order to demand a ransom from her son, Frank Kimbrough. Two of the defendants were apprehended by the FBI and Chicago police when they attempted to collect the ransom. The two apprehended defendants then led police to a van where the remaining defendants were arrested.
Defendant subsequently entered open pleas of guilty to one count of aggravated kidnaping of Paige Kimbrough and armed robbery of Elmora Kimbrough. The State dismissed the remaining counts. Defendant was sentenced to concurrent terms of 17 years' imprisonment for each offense.
On direct appeal, we determined that defendant had not been properly admonished in accordance with Supreme Court Rule 605(b) (188 Ill. 2d R. 605(b)), and therefore remanded the case for proper admonishments. People v. Johnson, No. 1-02-2531 (2003) (unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23)). Upon remand, defendant informed the trial court that he could not afford private counsel. The trial court appointed an assistant public defender to represent defendant and then admonished him in accordance with Rule 605(b).
Following the trial court's Rule 605(b) admonishments, defense counsel indicated that rather than withdraw his guilty plea, defendant wanted to file his pro se motion for reconsideration of sentence and to correct a void sentence. In the pro se motion, defendant asserted that his sentence was excessive and that he was improperly sentenced for an offense for which he was not indicted.
The trial court denied defendant's pro se motion and again sentenced him to two concurrent 17-year terms of imprisonment. This appeal followed.
Defendant contends on appeal that: (1) this case should be remanded to the trial court for a rehearing on his motion to reconsider sentence on the ground that defense counsel failed to file a Rule 604(d) (188 Ill. 2d R. 604(d)) certificate; and (2) section 2(B)(1.5) of the Sex Offender Registration Act (Registration Act) (730 ILCS 150/2(B)(1.5) (West 2000)), under which he was labeled a sex offender by reason of his pleading guilty to aggravated kidnaping, is unconstitutional as applied to him where this offense was not sexually motivated and had no sexual purpose. For the reasons that follow, we reverse and remand. ANALYSIS
Defendant first contends that this case must be remanded to the trial court for a rehearing on his motion to reconsider sentence because defense counsel failed to file a Rule 604(d) certificate. We agree.
The question of whether defense counsel complied with Rule 604(d) is subject to de novo review. People v. Lloyd, 338 Ill. App. 3d 379, 384, 788 N.E.2d 1169 (2003). Under Rule 604(d), an attorney representing a defendant at the postplea motion stage is required to file:
"[A] certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain defendant's contentions of error in the sentence or 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." 188 Ill. 2d R. 604(d).
"The certificate requirement allows 'the trial court to insure that counsel has reviewed the defendant's claim and considered all relevant bases for the motion to withdraw the guilty plea or to reconsider the sentence.'" People v. Hampton, 335 Ill. App. 3d 1041, 1043, 782 N.E.2d 933 (2003), quoting People v. Shirley, 181 Ill. 2d 359, 361, 692 N.E.2d 1189 (1998). In this case, defense counsel did not file a Rule 604(d) certificate.
The State responds that defense counsel was not required to file a Rule 604(d) certificate because the defendant was acting pro se when he filed his motion to reconsider sentence. The State contends that although counsel was appointed to represent defendant, defendant acted pro se by filing his own motion to reconsider sentence and therefore appointed counsel was not required to file a Rule 604(d) certificate. We must reject the State's contentions.
It is true that a defendant does not have a right to "hybrid" representation, where he alternates between proceeding pro se and being represented by counsel. See, e.g., People v. Pondexter, 214 Ill. App. 3d 79, 88, 573 N.E.2d 339 (1991). However, the record in ...