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People v. Axelson

Court of Appeals of Illinois, Second District

January 9, 2015

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ORVILLE AXELSON, Defendant-Appellant

Appeal from the Circuit Court of Winnebago County. Nos. 10-CF-905, 10-CF-1425. Honorable Rosemary Collins, Judge, Presiding.

SYLLABUS

The denial of defendant's postjudgment motion was vacated on the ground that defendant's counsel failed to strictly comply with Supreme Court Rule 604(d) when his certificate stated that he consulted with defendant about his contentions of error with respect to his guilty plea but did not mention any contentions of sentencing errors, and the parties agreed that the cause had to be remanded to allow defendant to file a new motion, if desired, to allow his counsel to file a complete and correct certificate, and to have the motion heard in compliance with Rule 604(d), but the parties disagreed as to whether defendant should be allowed to seek the withdrawal of his guilty plea, reconsideration of his sentences, or both, and in view of the language of Rule 605(c) stating that it applies when concessions have been made by the prosecution relating to defendant's sentences, and not merely the charges pending, as in defendant's case, where the prosecution agreed to forego any recommendation that consecutive sentences be imposed, the proceedings on remand would have to follow Rule 605(c) and defendant would only be allowed to withdraw his guilty plea and vacate the judgment.

Michael J. Pelletier and Thomas A. Lilien, both of State Appellate Defender's Office, of Elgin, for appellant.

Joseph P. Bruscato, State's Attorney, of Rockford (Lawrence M. Bauer and Barry W. Jacobs, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Birkett and Spence concurred in the judgment and the opinion.

OPINION

McLAREN, JUSTICE

Page 1288

[¶1] Defendant, Orville Axelson, pleaded guilty to one count each of burglary (720 ILCS 5/19-1(a) (West 2010)) and unlawful possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1) (West 2010)) and was sentenced to concurrent 10-year prison terms. The trial court denied his postjudgment motion, and he appeals. On appeal, defendant argues that, because his attorney failed to file a proper certificate of compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006), the order denying his motion must be vacated and the cause must be remanded.

[¶2] The State confesses error and agrees that the cause must be remanded. The parties disagree, however, on the proper procedure on remand. Defendant contends that, because he entered a nonnegotiated plea, Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001) applies. The State contends that defendant's plea was negotiated, so that Illinois Supreme Court Rule 605(c) (eff. Oct. 1, 2001) applies. We agree with the State and remand the cause with directions.

[¶3] In case No. 10-CF-905, defendant was charged with two counts of burglary and one count of possession of burglary tools (720 ILCS 5/19-2(a) (West 2010)). In case No. 10-CF-1425, he was charged with one count of unlawful possession of a stolen motor vehicle. The cases were consolidated.

[¶4] On April 17, 2012, the parties presented an agreement under which defendant would plead guilty to one count of burglary and the count of unlawful possession of a stolen motor vehicle, and the other charges would be dismissed. In questioning defendant, the judge asked, " Is there any agreement about what the sentencing would be?" Defendant said, " No." The judge then stated, " That's correct, too. What we call an open plea." After further admonishments, the judge stated, " [B]ecause this is what's called an open plea that means that there is no agreement about what the sentence will be."

[¶5] The judge then stated, " And it's my understanding that the sentences will be concurrent." Defendant's attorney, Wendell Coates, responded, " That's correct." The judge explained to defendant what " concurrent" meant but did not specifically inform him that the law allowed consecutive sentencing in his case. After further admonishments and the presentation of the factual basis, the court accepted the plea. On June 13, 2012, defendant was sentenced to concurrent 10-year prison terms.

[¶6] Coates later withdrew from the case. On January 13, 2014, defendant's new counsel, Michael Phillips, filed an amended motion to withdraw his guilty plea and, alternatively, to reduce his sentences. It alleged defects in the ...


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