from the Circuit Court of Du Page County. No. 16-DV-1577
Honorable Jeffrey S. MacKay, Judge, Presiding.
SPENCE, JUSTICE delivered the judgment of the court, with
opinion. Justice Schostok concurred in the judgment and
1 Defendant, Robert Ibrahim Orahim, pleaded guilty to
aggravated assault (720 ILCS 5/12-2(c)(1) (West 2016)) and
violation of an order of protection (id. §
12-3.4(a)(1)). On January 6, 2017, he was sentenced to two
years' probation. On January 31, 2017, he moved to
reconsider his sentence. The trial court denied that motion
on February 16, 2017. On February 21, 2017, defendant moved
to withdraw his plea. The trial court denied that motion on
April 5, 2017. Defendant filed a notice of appeal the next
day. On appeal, defendant's attorney moves to withdraw
under Anders v. California, 386 U.S. 738 (1967), and
People v. Jones, 38 Ill.2d 384 (1967), arguing that
the trial court lacked jurisdiction of defendant's motion
to withdraw his plea and that this court lacks jurisdiction
to reach the merits of his appeal. We agree. Accordingly, we
vacate the trial court's denial of defendant's motion
to withdraw his plea, and we dismiss that motion. See
People v. Bailey, 2014 IL 115459, ¶ 29.
2 "[A]n appeal is perfected by the timely filing of a
notice of appeal, and it is this step which vests the
appellate court with jurisdiction." In re J.T.,
221 Ill.2d 338, 346 (2006). Under Illinois Supreme Court Rule
606(b) (eff. July 1, 2017), a notice of appeal is timely if
it is filed "within 30 days after the entry of the final
judgment appealed from or[, ] if a motion directed against
the judgment is timely filed, within 30 days after the entry
of the order disposing of the motion." The final
judgment in a criminal case is the sentence. People v.
Caballero, 102 Ill.2d 23, 51 (1984). A motion to
reconsider the sentence or a motion to withdraw a plea is
timely if it is filed within 30 days after the sentence. Ill.
S.Ct. R. 604(d) (eff. July 1, 2017). Here, within 30 days
after the sentence, defendant did not file a notice of appeal
but did file a timely motion to reconsider the sentence.
However, defendant did not file a notice of appeal within 30
days after the ruling on that motion; instead, he filed an
untimely motion to withdraw his plea, and he filed a notice
of appeal within 30 days after the ruling on that
3 As defendant's attorney asserts, the trial court lacked
jurisdiction of defendant's motion to withdraw his plea,
and we lack jurisdiction to reach the merits of his appeal.
The controlling case is Sears v. Sears, 85 Ill.2d
253 (1981). There, two cases were consolidated. In
one, the trial court entered a final judgment on October 12.
The plaintiff filed a motion directed against the judgment on
November 13 (which was timely because the thirtieth day after
the judgment was a Saturday). The trial court denied that
motion two days later. The plaintiff then filed a successive
motion on December 11. The trial court granted that motion.
On appeal, the appellate court held that the trial court
lacked jurisdiction of the successive motion. Id. at
4 The supreme court affirmed the appellate court. The supreme
court observed that a timely motion "not only extends
the circuit court's jurisdiction, but also extends the
appellate court's potential jurisdiction, the time within
which a notice of appeal may be filed, until 30 days after
the motion is denied." Id. at 258. The
plaintiff's successive motion, however, was not
timely, and thus it "did not extend the time for appeal
or renew the circuit court's jurisdiction."
Id. at 260.
5 Under Sears, defendant's timely motion to
reconsider his sentence extended both the trial court's
jurisdiction and his time to appeal. However, when the trial
court ruled on that motion, its jurisdiction lapsed, and
defendant's untimely motion to withdraw his plea did not
renew the trial court's jurisdiction or extend his time
to appeal. Defendant had to file a notice of appeal within 30
days after the ruling on his motion to reconsider his
sentence. Because he did not, his notice of appeal was
6 The State argued to the trial court that, because
defendant's motion to withdraw his plea was filed more
than 30 days after the judgment, the court had no
jurisdiction of it. The trial court disagreed, indicating
that it had jurisdiction of the motion to withdraw the plea
because defendant filed it within 30 days after the ruling on
the motion to reconsider the sentence. In fairness, this
court has sustained that view. In In re Marriage of
Agustsson, 223 Ill.App.3d 510 (1992), we interpreted
Sears as holding only that such a successive motion
does not extend the time to appeal, not that a trial
court lacks jurisdiction of the motion. See id. at
516-17; see also People v. Walker, 395 Ill.App.3d
860, 869 (2009) (under Agustsson, "the bar on
successive postjudgment motions does not affect the
jurisdiction of the trial court, but rather is a limit on the
time for appeal"); People v. Serio, 357
Ill.App.3d 806, 817 (2005) (under Agustsson,
"The trial court has jurisdiction to rule on a
successive postjudgment motion where the successive motion is
filed within 30 days of the final disposition of the
preceding postjudgment motion. Jurisdiction vests in the
appellate court when the trial court disposes of the
successive motion and a notice of appeal is filed within 30
days of the denial of the first motion ***." (Emphases
in original.)). But in Agustsson we simply
misinterpreted Sears. As we note here, the supreme
court held that the plaintiff's successive motion
"did not extend the time for appeal or renew the
circuit court's jurisdiction." (Emphasis
added.) Sears, 85 Ill.2d at 260. Clearly, then, the
trial court here lacked jurisdiction of defendant's
7 Crucial to our holding, we observe, is the fact that
defendant's successive motion was filed more than 30 days
after the judgment. The Sears court specifically
limited its holding to that circumstance. Id. at
259. This court has extended that holding to the circumstance
in which the successive motion is filed within 30
days after the judgment. See Benet Realty Corp. v. Lisle
Savings & Loan Ass'n, 175 Ill.App.3d 227, 231-32
(1988); see also Illinois State Toll Highway Authority v.
Gary-Wheaton Bank, 203 Ill.App.3d 672, 677 (1990)
("Where multiple post-trial motions are filed within 30
days of the court's final judgment, but where the second
post-trial motion is filed only after the first post-trial
motion was denied, the trial court still does not have
jurisdiction to hear the second post-trial motion."). As
we do not confront that circumstance here, we need not assess
the validity of that application of Sears.
8 We also wish to explicitly distinguish People v.
Salem, 2016 IL 118693. There, in each of two cases,
"[the] defendant filed a motion for new trial more than
30 days after the jury returned the guilty verdict, but
less than 30 days after [the] defendant was
sentenced." (Emphasis added.) Id. ¶
1. The supreme court held that, because a motion for a new
trial must be filed within 30 days after the return of a
verdict (725 ILCS 5/116-1(b) (West 2014)), the
defendant's motion was untimely and did not extend the
time to appeal. In arguing otherwise, the defendant cited
People v. Talach, 114 Ill.App.3d 813 (1983), and
People v. Gilmore, 356 Ill.App.3d 1023 (2005), which
applied Talach. The supreme court noted that,
pursuant to those decisions, although the defendant's
motion did not extend the time to appeal, the trial court had
jurisdiction of it:" '[t]he trial court still
retain[ed] jurisdiction after 30 days from the entry of the
verdict because the final judgment in a criminal case is the
pronouncement of sentence.'" Salem, 2016 IL
118693, ¶ 13 (quoting Talach, 114 Ill.App.3d at
818). Thus, under Salem, a trial court has
jurisdiction of an untimely motion when it otherwise has
jurisdiction of the case. That was not the situation in
Sears, and it is not the situation here.
9 In his partial dissent, Justice McLaren asserts that,
although defendant's motion to withdraw his plea did not
extend his time to appeal, it did extend the trial
court's jurisdiction. According to Justice McLaren,
Sears's limitation on a trial court's
jurisdiction was abrogated by the supreme court's later
recognition-in a line of cases beginning with
Steinbrecher v. Steinbrecher, 197 Ill.2d 514
(2001)-that trial courts, irrespective of any statutory
authority, "have original jurisdiction of all
justiciable matters." Ill. Const. 1970, art. VI, §
9. However, a decade after deciding Steinbrecher,
the supreme court acknowledged that the constitution's
grant of "jurisdiction of all justiciable matters"
is not a grant of infinite jurisdiction in any
"Article VI, section 9, of the Illinois Constitution
confers upon circuit courts jurisdiction over all justiciable
matters. [Citation.] *** However, once cases are heard and
determined, '[t]he jurisdiction of trial courts to
reconsider and modify their judgments is not indefinite.'
[Citation.] Generally, [i.e., unless a timely motion
directed against the judgment is filed, ] a circuit court
loses jurisdiction to vacate or modify its judgment 30 days
after entry of judgment. [Citations.]" People ex
rel. Alvarez v. Skryd, 241 Ill.2d 34, 40 (2011).
Steinbrecher and its progeny did nothing to disturb
Sears. Although a trial court's jurisdiction is
constitutional, that jurisdiction still expires. See also
Hawes v. Luhr Brothers, Inc., 212 Ill.2d 93, 107
(2004) ("Since plaintiff's motion to vacate was made
within the 30-day period allowed by section 2-1203 of the
Code, the trial court had jurisdiction to hear and decide
it."); Brewer v. National R.R. Passenger Corp.,
165 Ill.2d 100, 105 (1995) ("A trial court retains
jurisdiction over a cause for 30 days after entry of a final
order or judgment."); People v. Harris, 2016 IL
App (1st) 141778, ¶ 19 ("We find the trial court
lost jurisdiction over this matter 30 days after it denied
defendant's motion to vacate ***. After that date, the
trial court did not have jurisdiction to rule on
defendant's motion to refile and reinstate."). It is
true that the trial court here had constitutional
jurisdiction of the justiciable matter in this case. But it
is also true that, once the trial court entered its
final judgment on that matter and ruled on defendant's
timely motion to reconsider his sentence, it could not
exercise jurisdiction of defendant's untimely motion to
withdraw his plea.
10 Justice McLaren also cites Illinois Supreme Court Rule
303(a)(2), which currently provides that "[n]o request
for reconsideration of a ruling on a postjudgment motion will
toll the running of the time within which a notice of appeal
must be filed." Ill. S.Ct. R. 303(a)(2) (eff. July 1,
2017). Suffice to say that we see nothing in that rule to
suggest any intent as to a trial court's
jurisdiction, let alone an intent to overrule Sears.
11 Finally, Justice McLaren asserts that, even if
Sears is still good law, it holds that a trial court
lacks jurisdiction of a successive motion only when the
motion raises issues that were or could have been raised in
the original motion. To be sure, the Sears court
cited a policy concern against repetitive motions.
Sears, 85 Ill.2d at 258 (citing Deckard v.
Joiner, 44 Ill.2d 412 (1970)). But the court's
holding was in no way limited to that particular concern:
"A motion not filed within 30 days after the judgment
(or any extension allowed) is not 'timely' ***; and
an untimely motion *** neither stays the judgment
[(i.e., continues the trial court's jurisdiction
to alter that judgment)] nor extends the time for
appeal." Id. at 259. Thus, a trial court's
jurisdiction of a motion is controlled by its
timing, not merely its content. The
opposite strikes us as flatly absurd.
12 In sum, the trial court lacked jurisdiction of
defendant's motion to withdraw his plea, and we lack
jurisdiction to reach the merits of his appeal. However, under
Bailey, 2014 IL 115459, ¶ 29, we nevertheless
have the "limited" jurisdiction to vacate the trial
court's ruling on the motion and to dismiss the motion.
That, accordingly, is what we do.
13 Order vacated; motion dismissed.
14 JUSTICE McLAREN, concurring in part and dissenting in
15 I concur as to the dismissal of this appeal. The time to
appeal expired because the successive posttrial motion did
not stay the appeal time, and therefore, the notice of appeal
was late. See Ill. S.Ct. R. 303(a)(2) (eff. July 1, 2017).
However the majority then goes on to vacate the trial
court's denial of defendant's motion to withdraw his
plea. In reaching that decision, the majority relies on an
outmoded concept of jurisdiction that has not been followed
in this state since at least 2001. Further, even the
majority's application of the outmoded case law is
faulty. I believe that the trial court had jurisdiction to
rule on the motion, and therefore, I dissent from that
portion of the majority opinion.
16 The majority cites Sears as the controlling
authority for its holding and ratio decidendi that
the trial court lacked jurisdiction to consider the merits of
the motion. It also cites Bailey as the basis for
vacating the trial court's order of denial rather than
simply dismissing the appeal. I believe that a quartet of
cases, along with the amendment of Rule 303, has rendered
Sears obsolete with regard to the issue of
jurisdiction in general and to its application to successive
postjudgment motions specifically. The first case in the
quartet is Steinbrecher, 197 Ill.2d 514, followed by
Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A.,
Inc., 199 Ill.2d 325 (2002), then LVNV Funding, LLC
v. Trice, 2015 IL 116129, and culminating in People
v. Castleberry, 2015 IL 116916. Because Sears
is obsolete, the vacation of the order as prescribed by
Bailey is inapt.
17 It is important to note that Sears based its
holding that the trial courts lost jurisdiction to rule on
the successive posttrial motions on the lack of authorization
to deal with such a motion in either the Civil Practice Act
or supreme court rules. Sears, 85 Ill.2d at 258-60.
This is the "lack of inherent authority" argument,
which contends that failure to follow statutory procedures
divests the court of jurisdiction and renders a resulting
order "void." See Steinbrecher, 197 Ill.2d
at 529. However, as our supreme court explained:
"Steinbrecher noted that a 1964 constitutional
amendment significantly altered the basis of circuit court
jurisdiction, granting circuit courts 'original
jurisdiction of all justiciable matters, and such powers of
review of administrative action as may be provided by
law.' Ill. Const. 1870, art. VI (amended 1964), § 9.
The current Illinois Constitution, adopted in 1970, retained
this amendment and provides that 'Circuit Courts shall
have original jurisdiction of all justiciable matters'
and that 'Circuit Courts shall have such power to review
administrative action as provided by law.' Ill. Const.
1970, art. VI, § 9. Steinbrecher reasoned that,
because circuit court jurisdiction is granted by the
constitution, it cannot be the case that the failure to
satisfy a certain statutory requirement or prerequisite can
deprive the circuit court of its 'power' or
jurisdiction to hear a cause of action.
Steinbrecher, 197 Ill.2d at 529-32.
holding, Steinbrecher emphasized the difference
between an administrative agency and a circuit court. An
administrative agency, Steinbrecher observed, is a
purely statutory creature and is powerless to act unless
statutory authority exists. Id. at 530 (citing
City of Chicago v. Fair Employment Practices
Comm'n, 65 Ill.2d 108, 112 (1976)). A circuit court,
on the other hand, 'is a court of general jurisdiction,
which need not look to the statute for its jurisdictional
authority.' Id. Thus, Steinbrecher
concluded that the' "inherent power"
requirement applies to courts of limited jurisdiction and
administrative agencies' but not to circuit courts.
Id." (Emphasis omitted.) LVNV Funding,
2015 IL 116129, ¶¶ 30-31.
unaware of any authority, and the majority has not cited any,
that even implies that a supreme court rule may amend the
Illinois Constitution and somehow alter the general
jurisdiction of trial courts to something less than subject
matter jurisdiction combined with personal jurisdiction.
18 Steinbrecher was reaffirmed in Belleville
Toyota, 199 Ill.2d 325, which "reasoned that a
statutory requirement or prerequisite cannot be
jurisdictional, since jurisdiction is conferred on the
circuit courts by our state constitution." LVNV
Funding, 2015 IL 116129, ¶ 34. Belleville
Toyota also stated:
"Simply stated, 'subject matter jurisdiction'
refers to the power of a court to hear and determine cases of
the general class to which the proceeding in question
belongs. [Citations.] With the exception of the circuit
court's power to review administrative action, which is
conferred by statute, a circuit court's subject matter
jurisdiction is conferred entirely by our state constitution.
[Citations.] Under section 9 of article VI, that jurisdiction
extends to all 'justiciable matters.' Ill. Const.
1970, art. VI, § 9. Thus, in order to invoke the subject
matter jurisdiction of the circuit court, a plaintiff's
case, as framed by the complaint or petition, must present a
justiciable matter. See People ex rel. Scott v.
Janson, 57 Ill.2d 451, 459 (1974) (if a complaint states
a case belonging to a general class over which the authority
of the court extends, subject matter jurisdiction attaches);
Western Tire, 32 Ill.2d at 530 (the test of the
presence of subject matter jurisdiction is found in the
nature of the case as made by the complaint and ...