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People v. Albers

Court of Appeals of Illinois, Second District

June 28, 2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
MICHAEL P. ALBERS, Defendant-Appellant.

Held [*]

Following defendant’s conviction for aggravated driving under the influence of alcohol following a negotiated guilty plea, his appeal from the denial of his motion for reconsideration of his sentence was dismissed on the ground that he failed to move to withdraw his guilty plea as required by Supreme Court Rule 604(d), since defendant was barred from challenging his sentence without moving to withdraw his guilty plea and the trial court should have struck his motion to reconsider instead of considering the motion on the merits.

Appeal from the Circuit Court of Lake County, No. 10-CF-2910; the Hon. James K. Booras, Judge, presiding.

Thomas A. Lilien and Bruce Kirkham, both of State Appellate Defender's Office, of Elgin, for appellant.

Michael J. Waller, State's Attorney, of Waukegan (Lawrence M. Bauer and Diane L. Campbell, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE SPENCE delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett concurred in the judgment and opinion.

OPINION

SPENCE JUSTICE

¶ 1 Defendant, Michael P. Albers, entered a negotiated plea of guilty to one count of aggravated driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2010)) and was sentenced to 10 years' imprisonment. He moved to reconsider his sentence. The trial court denied the motion, and defendant appealed. On appeal, he contends that a remand is required because his trial counsel filed a defective certificate of compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006). Because Rule 604(d) did not allow defendant to challenge his sentence without moving to withdraw his guilty plea, and because defendant failed to comply with this motion requirement, we dismiss the appeal.

¶ 2 I. BACKGROUND

¶ 3 On August 12, 2010, defendant, who was driving with a blood alcohol concentration of 0.08 or more, was involved in a fatal car accident. Defendant rounded a curve to the right into oncoming traffic and collided with another car, killing one person and injuring another. The grand jury returned an eight-count indictment against defendant, with the charges ranging from aggravated DUI (625 ILCS 5/11-501(d)(1)(C), (F) (West 2010)) to reckless homicide (720 ILCS 5/9-3(a) (West 2010)). Public defender Katharine Hatch was appointed to represent defendant. A short time later, defendant requested to proceed pro se and was granted leave to do so.

¶ 4 Defendant ultimately pled guilty to count I of the indictment, which charged aggravated DUI resulting in the death of another person (625 ILCS 5/11-501(d)(1)(F) (West 2010)), a Class 2 felony. In return for defendant's plea, the State dismissed the remaining charges and recommended a sentencing cap of 10 years' imprisonment. At the hearing, the trial court explained to defendant that the sentencing range for the offense was 3 to 14 years, and it explained the consequences of his plea. Determining that defendant's plea was voluntary and intelligent, the trial court accepted the plea.

¶ 5 With regard to sentencing, defendant did not proceed pro se but was represented by attorney Hatch. Following a hearing, the court imposed a 10-year sentence. The court properly admonished defendant that, should he wish to appeal the judgment, he would need to file in the trial court a motion to vacate the judgment and for leave to withdraw his guilty plea. Defendant did not do so. Instead, within 30 days, he filed a pro se motion to reconsider the sentence.

¶ 6 The trial court appointed attorney Hatch, who filed a Rule 604(d) certificate stating: "1. I have consulted with the Defendant, in person[, ] to ascertain his/her contentions of error in the sentence in the above-entitled cause . 2. I have examined the trial court file and report of the proceedings of the plea of guilty. 3. I have made any amendments to the motion necessary for adequate presentation of any defects in those proceedings." The certificate did not state that counsel had consulted with defendant to ascertain his contentions of error in the entry of the guilty plea.

¶ 7 The court conducted a hearing on defendant's motion to reconsider his sentence. Counsel did not amend defendant's pro se motion but argued the points defendant had raised. The court rejected all of defendant's claims, reasoning that it had considered all of the factors in aggravation and mitigation when fashioning a sentence and that defendant's 10-year sentence was fair. The court noted that it had even commended defendant for getting a "deal" from the State, because the sentence ...


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