Appeal from Circuit Court of Champaign County No. 10DT199 Honorable Richard P. Klaus, Judge Presiding.
The opinion of the court was delivered by: Justice Turner
JUSTICE TURNER delivered the judgment of the court, with opinion. Presiding Justice Knecht and Justice McCullough concurred in the judgment and opinion.
¶ 1 This appeal comes to us on the motion of defendant's counsel, the office of the State Appellate Defender (OSAD), for remand for strict compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006).
¶ 3 In July 2010, defendant, John Cooper III, represented by private counsel Michael
B. McClellan, entered an open guilty plea to driving under the influence (DUI), a Class A misdemeanor (625 ILCS 5/11--501(a)(1) (West 2010)), committed on April 15, 2010. In exchange for defendant's plea of guilty, the State agreed to dismiss case Nos. 10--TR--7361 and 10--TR--12844. The trial court admonished defendant, heard the factual basis, accepted the plea, and entered judgment on it.
¶ 4 At the two-day sentencing hearing held in August 2010 and September 2010, the following testimony was presented. Jeremy Hale, a police officer for the City of Urbana, testified he ticketed defendant on June 16, 2010, for driving on a suspended license. Defendant's driver's license was suspended following his April 2010 DUI arrest. Thereafter, on August 6, 2010, at approximately 11 p.m., Hale observed defendant behind the wheel of a vehicle at a gas station located on the corner of Philo and Colorado in Urbana, Illinois. According to Hale, he was unable to initiate a traffic stop because he was in the process of responding to another call.
¶ 5 However, defendant produced several witnesses who stated another man was driving defendant that night, and the trio were at the gas station around 1:30 a.m. but were elsewhere at 11 p.m. The defense offered a camera recording from the gas station reportedly showing defendant inside the station at 1:30 a.m., consistent with the witnesses' testimony.
¶ 6 After hearing the witness testimony, the trial court determined it would not consider the August 6 incident as a factor in aggravation. However, it did consider the June 16 incident and defendant's criminal record (8 prior felony convictions, 7 prior misdemeanor convictions, 12 traffic convictions, 2 prison terms, 4 jail sentences, and 4 probation violations). The court sentenced defendant to 364 days in jail with credit for one day previously served and ordered him to pay a $500 fine, a $5 anti-crime assessment fee, and costs. Additionally, the court dismissed "count I" and case No. 10--TR--7361. The court denied defense counsel's request that defendant be considered for home incarceration and admonished defendant under Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001).
¶ 7 On October 6, 2010, attorney McClellan filed a motion for reconsideration of sentence, and on October 28, counsel appeared to argue the motion. During the hearing, the trial judge inquired whether attorney McClellan had a Rule 604(d) certificate for him, informing counsel that strict compliance with Rule 604(d) was required. The following colloquy ensued:
"MR. McCLELLAN: For reconsideration, Your Honor? THE COURT: Required explicitly by the rule.
The appellate court has repeatedly told my collegues [sic] and I strict compliance with 604(d) is required. If I do anything, if I even so much as breath [sic] on this file without a 604(d) certificate on ...