Appeal from the Circuit Court of Kane County. No. 06-CF-3069 Honorable Allen M. Anderson, Judge, Presiding.
The opinion of the court was delivered by: Justice Zenoff
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices McLaren and Birkett concurred in the judgment and opinion.
¶ 1 Defendant, Martin A. Herrera, appeals from an order of the circuit court of Kane County denying his motion to reconsider his sentence, which was filed following defendant's nonnegotiated plea of guilty to two counts of aggravated driving under the influence (625 ILCS 5/11-501(a), (d)(1)(F) (West 2008). For the following reasons, we vacate and remand for further proceedings.
¶ 3 On January 31, 2008, a grand jury reindicted defendant on two counts of reckless homicide (720 ILCS 5/9-3(a) (West 2008)) and two counts of aggravated driving under the influence. The charges arose from an accident defendant caused on August 26, 2006, when he crossed the center line on the High Street bridge in Aurora, Illinois, and struck head-on a vehicle driven by Rebecca Wilkinson. Rebecca Wilkinson and her mother, Bonnie Wilkinson, who was a front-seat passenger, both died of injuries they sustained in the crash.
¶ 4 On August 1, 2008, while defendant was represented by privately retained counsel, defendant and the State presented to the trial court a fully negotiated plea of guilty. Under the terms of the plea, defendant would be sentenced to concurrent terms of imprisonment of five years on count III (aggravated driving under the influence) of the indictment and three years on an amended count V (aggravated driving under the influence resulting in great bodily harm). However, at the hearing at which the plea was presented, defendant told the court that he wanted to go to trial but did not have the money to pay his counsel. Defendant's counsel subsequently withdrew, and the court appointed David P. Kliment, the Kane County public defender, to represent defendant. On the day set for a bench trial, defendant entered a "cold" plea-meaning that the sentence was not agreed to-to counts III and V of the indictment.*fn1 The matter was continued for a presentence investigation report and sentencing. At sentencing, after hearing evidence in aggravation and mitigation, the trial court sentenced defendant to 10 years' imprisonment.
¶ 5 On January 11, 2010, Kliment filed a motion to reconsider the sentence. On December 7, 2010, Kliment filed a "Supreme Court Rule 604(d) Certificate." See Ill. S. Ct. R. 604(d) (eff. July 1, 2006). The certificate stated the following:
"Now [c]omes David P. Kliment, attorney for the defendant, Martin Herrera, and for his 604(d) certificate states as follows:
1. That he is the attorney of record in this case.
2. That he has consulted with the defendant regarding his contentions of error in this case.
3. That he has examined the trial court file and the report of proceedings of the plea of guilty and has made any amendment necessary to the pleadings."
After Kliment filed his certificate and the motion to reconsider the sentence, but before the motion was heard by the trial court, Kliment became a judge. However, the public defender's office continued to represent defendant. On December 30, 2010, Assistant Public Defender Julia A. Yetter was present in court on defendant's behalf. She informed the court that defendant's file had been reassigned to her. She further represented to the court:
"I have met with [defendant] this morning in court. I did also review the record. I have reviewed the file, I have reviewed the transcripts, and now I have met with [defendant] and discussed the issues with him, and subsequent to doing that I did file my 604(d) certificate in court this morning. *** I am prepared to proceed. *** And, your Honor, I just have brief arguments ...