Opinion
4-22-0714
10-12-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ADAM W. COLEMAN, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Woodford County No. 20CF120 Honorable Michael L. Stroh, Judge Presiding.
LANNERD JUSTICE delivered the judgment of the court. Justices Steigmann and Zenoff concurred in the judgment.
ORDER
LANNERD JUSTICE
¶ 1 Held: The appellate court held (1) the trial court did not err by considering defendant extended-term eligible at sentencing and (2) remand is not required for compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) because defendant received a full and fair hearing on his motion to reconsider his sentence.
¶ 2 In December 2020, defendant, Adam W. Coleman, pleaded guilty to aggravated driving under the influence (DUI) (625 ILCS 5/11-501(a)(2) (West 2020)). The trial court sentenced defendant to 10 years' incarceration. Defense counsel filed a motion to reconsider defendant's sentence, which the court denied. This court entered an agreed summary order to remand the case for strict compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). See People v. Coleman, No. 4-21-0127 (June 11, 2021) (unpublished order).
¶ 3 Defense counsel filed a second amended motion to reconsider the sentence, which the trial court denied. Defendant appeals, arguing (1) he did not receive a fair sentencing hearing where the court considered him extended-term eligible and (2) counsel did not strictly comply with the requirements of Rule 604(d). We affirm.
¶ 4 I. BACKGROUND
¶ 5 In December 2020, defendant entered a guilty plea to aggravated DUI (625 ILCS 5/11-501(a)(2) (West 2020)). The State nol-prossed a charge of unlawful possession of firearm ammunition by a felon (720 ILCS 5/24-1.1(a) (West 2020)) and dismissed a traffic case in exchange for defendant's guilty plea but made no concessions as to defendant's sentence. The trial court admonished defendant the sentencing range would be "not less than 4 years nor more than 15 years. If I find you have been convicted of the same or greater class of offense within the last 10 years, *** then I could sentence you up to 30 years in the Illinois Department of Corrections." Defendant agreed he understood. The State set forth the factual basis and stated,
"[I]n regards to sentencing in this matter the State would also present proof that the defendant had prior convictions for driving under the influence in Elkhart County, Indiana in 2011, two of them in 2011, and another one, I believe it was in 2012; and then in Cass County, Michigan in October of 2012."Defense counsel agreed there were four prior DUIs, though he disagreed on the dates. After admonishments, the court accepted defendant's plea and the matter was set for sentencing.
¶ 6 We note, due to technical issues, there is no transcript from the January 2021 sentencing hearing. A bystander's report signed by both attorneys and the judge presiding at the hearing dated March 29, 2022, is included in the record on appeal.
¶ 7 At the sentencing hearing, the presentence investigation report (PSI) was entered without objection. The PSI contained defendant's extensive criminal history across Illinois, Indiana, and Michigan. In particular, the PSI stated defendant had "committed a violation of [the Illinois DUI statute] or similar provision on April 9, 2011 in Elkhart County[,] Indiana, July 4, 2011 in Elkhart County, Indiana, January 6, 2012, in Elkhart County, Indiana and on October 5, 2012 in Cass County, Michigan." The PSI also noted the Michigan charge was "Operating Under the Influence Causing Incapacitating Injury" and the disposition as "Three to Ten Years Michigan Department of Corrections, F/C, Restitution." Defendant had a remaining balance of restitution payments of over $39,000. The PSI also detailed defendant's other criminal history, including a 2003 conviction for DUI in Indiana, and his lengthy history with drugs.
¶ 8 According to the bystander's report, the State offered no additional evidence in aggravation. In mitigation, defense counsel presented a letter from defendant's employer. Defendant made a statement in allocution "describing] his efforts to set up Alcoholics Anonymous in the Woodford County Jail" and asked for leniency. The State, after reviewing defendant's criminal history, recommended a term of 10 years in the Illinois Department of Corrections. Defense counsel requested a sentence of five years.
¶ 9 The bystander's reporter stated the trial court's ruling as follows: "The Court ruled stressing how bad Defendant's record was, especially the previous DUI with incapacitating injury, and sentenced [defendant] to 10 years in the Illinois Department of Corrections."
¶ 10 In February 2021, defendant filed a motion to reconsider his sentence prior to the creation of the bystander's report. In the motion, defendant alleged the trial court failed to properly consider several mitigating factors and he received ineffective assistance of counsel when counsel failed to file a continuance to obtain additional character letters. Defense counsel filed a certificate pursuant to Rule 604(d) stating, "I have examined the trial court file and report of proceedings of the plea of guilty. I have not reviewed [the] report of proceedings in the sentencing hearing because it cannot be produced due to technical issues with the court reporter's equipment."
¶ 11 After a hearing, the trial court denied defendant's motion to reconsider his sentence. The court noted it was considering the docket entries it had and its own memory of the sentencing hearing, as there was no transcript of the hearing available. The court reviewed at length the aggravating and mitigating evidence it considered. The court also stated, "The court took into account that this offense was extended-term eligible. The court took into account that this offense was mandatory prison."
¶ 12 Defendant appealed, and the appellate court granted defendant's motion for agreed summary remand for strict compliance with Rule 604(d), preparation of a bystander's report, and the opportunity to file a new postplea motion. See Coleman, No. 4-21-0127 (June 11, 2021) (unpublished order).
¶ 13 The trial court certified the agreed bystander's report. Defendant filed a second amended motion to reconsider his sentence. Defendant requested the court consider several mitigating factors, including: (1) the incapacitating injury in the Michigan DUI was a broken thumb and the victim was paid by insurance; (2) the Michigan case was sentenced as a Class 3 felony, which did not make him extended-term eligible; and (3) defendant's conviction in the 2003 Indiana DUI was part of a diversion program and should not have been included in his criminal history. The amended motion also alleged, "[Defendant] recalls the Court commenting on *** its belief that [defendant] was extended term eligible when pronouncing [defendant's] sentence. [Defendant] believes that the Court should reduce his sentence because his Michigan case did not make him extended term eligible." Finally, the motion alleged counsel was ineffective for failing to request a continuance to obtain additional character letters.
¶ 14 Along with the amended motion to reconsider his sentence, postplea counsel filed a certificate pursuant to Rule 604(d), which stated he had consulted with defendant to ascertain the contentions of error in the plea and sentencing, examined the court file and report of proceedings of the plea and sentencing hearing, and made any amendments to the motion necessary for the adequate presentation of defendant's claims.
¶ 15 At the hearing on defendant's motion, defense counsel argued consistent with the motion. Counsel argued the Michigan case, "if it was sentenced as a Class 3 felony, then it would not have been something that made him extended-term eligible as part of this sentencing." As to the 2003 Indiana DUI, counsel explained defendant believed "it was part of a diversion program and shouldn't be included as part of the record for the public or the court to see down the road as it was seen and used in this case." Counsel did not mention the incapacitating injury in his argument.
¶ 16 The State argued defendant failed to provide evidence at the sentencing hearing to show the incapacitating injury was a broken thumb at the time of trial and the balance on his restitution payments was still $39,000. The State also argued the Michigan case more closely aligned with a Class 2 felony. As to the 2003 Indiana DUI, the State advised, "I will tell the court that I had Court Services pull that case and he, indeed, was-conviction was entered on February 2nd of 2006. The defendant's probation was revoked, and he was-his suspended jail time of one year was imposed. So that's just wrong. He was convicted of that." The State asserted defendant had not provided any evidence that was unavailable to him at the time of sentencing.
¶ 17 Defense counsel rebutted the State's argument as to the 2003 Indiana DUI, stating defendant "still thinks it was a diversion. The diversion was done even though he was sanctioned inside the diversion."
¶ 18 The trial court determined the evidence the defendant wished to present in his motion was not new evidence. The court also noted, "[A]bout extended-term-eligible sentencing, this was a Class 1 felony. The sentencing range on this was 4 to 15. You were sentenced to 10 years. You weren't even sentenced to an extended term." The court denied defendant's motion to reconsider his sentence.
¶ 19 This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 On appeal, defendant argues (1) he did not receive a fair sentencing hearing where the trial court considered him extended-term eligible and (2) counsel did not strictly comply with the requirements of Illinois Supreme Court Rule 604(d) (eff. July 1, 2017).
¶ 22 A. Extended-Term Sentencing
¶ 23 Defendant first alleges he was not eligible for an extended term and the trial court erred in considering him eligible for an extended term when fashioning his sentence.
¶ 24 "A misstatement of the understanding of the minimum sentence by the trial judge necessitates a new sentencing hearing only when it appears that the mistaken belief of the judge arguably influenced the sentencing decision." People v. Eddington, 77 Ill.2d 41, 48, 394 N.E.2d 1185, 1188 (1979). The Eddington standard applies to cases in which the trial court mistakenly believed a defendant was eligible for an extended-term sentence. People v. Hill, 294 Ill.App.3d 962, 970, 691 N.E.2d 797, 803 (1998).
¶ 25 Defendant, as appellant, has the burden of presenting a sufficiently complete record of the trial proceedings to support his claim of error. Foutch v. O 'Bryant, 99 Ill.2d 389, 391-92, 459 N.E.2d 958, 959 (1984). In this case, a full transcript of the proceeding was unavailable, so the parties filed an agreed bystander's report in accordance with Illinois Supreme Court Rule 323(c) (eff. July 1, 2017). "[O]nce one party chooses to submit a proposed [bystander's] report, both parties bear responsibility for the report's accuracy." People v. Majka, 365 Ill.App.3d 362, 368, 849 N.E.2d 428, 433-34 (2006). We therefore presume "a bystander's report is materially complete on the points it addresses." Id.
¶ 26 Here, the bystander's report provides a detailed description of the sentencing hearing, including specific descriptions of the arguments of counsel and the considerations of the trial court in rendering its decision. There is no mention in the bystander's report of extended-term sentencing. "[T]he trial court is presumed to know the law and apply it properly. However, when the record contains strong affirmative evidence to the contrary, that presumption is rebutted." People v. Howery, 178 Ill.2d 1, 32, 687 N.E.2d 836, 851 (1997). As we presume the bystander's report is materially complete and it does not mention extended-term sentencing, we must presume the court knew the law and applied it properly. We therefore conclude the court committed no error regarding extended-term sentencing.
¶ 27 B. Rule 604(d) Compliance
¶ 28 Defendant also argues this court should remand for strict compliance with Rule 604(d). Defendant acknowledges counsel's Rule 604(d) certificate was facially valid. However, he argues counsel's failure to attach affidavits supporting defendant's claims outside the record indicated counsel failed to strictly comply with the requirements of the rule.
¶ 29 "Rule 604(d) governs the procedure to be followed when a defendant wishes to appeal from a judgment entered upon a guilty plea." In re H.L., 2015 IL 118529, ¶ 7, 48 N.E.3d 1071. Rule 604(d) requires a defendant file in the trial court, within 30 days of the date his sentence was imposed, "a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw the plea of guilty and vacate the judgment." Ill. S.Ct. R. 604(d) (eff. July 1, 2017). The rule further requires defendant's attorney to file in the trial court a certificate stating:
"[T]he attorney has consulted with the defendant either by phone, mail, electronic means or in person to ascertain defendant's contentions of error in the sentence and the entry of the plea of guilty, has examined the trial court file and both the report of proceedings of the plea of guilty and the report of proceedings in the sentencing hearing, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings." Id.
Our supreme court requires strict compliance with Rule 604(d). People v. Janes, 158 Ill.2d 27, 33, 630 N.E.2d 790, 792 (1994). We review de novo whether defense counsel complied with Rule 604(d). People v. Grice, 371 Ill.App.3d 813, 815, 867 N.E.2d 1143, 1145 (2007).
¶ 30 Initially, we note the State argues counsel's Rule 604(d) certificate was facially valid and we therefore need look no further. In the State's words, "[t]he failure to provide affidavits only indicates the possibility that, although counsel has filed a proper certificate, he might not otherwise have complied with the Rule." In the State's view, a certificate which repeats verbatim the words of Rule 604(d) is unassailable, regardless of counsel's actual performance of the requirements. We have rejected this argument in the past, and we reject it here.
¶ 31 The certificate requirement of Rule 604(d)" 'enables the trial court to insure that counsel has reviewed the defendant's claim and considered all relevant bases for the motion to withdraw the guilty plea or to reconsider the sentence.'" H.L., 2015 IL 118529, ¶ 10 (quoting People v. Shirley, 181 Ill.2d 359, 361, 692 N.E.2d 1189, 1191 (1998)). The appellate court has been clear when counsel files a facially valid certificate, remand may be appropriate if the record refutes the certificate. See People v. Curtis, 2021 IL App (4th) 190658, ¶ 36, 186 N.E.3d 467 (compiling cases). We therefore consider defendant's claim counsel failed to strictly comply with Rule 604(d) despite filing a facially valid certificate by consulting the record. See People v. Bridges, 2017 IL App (2d) 150718, ¶ 8, 87 N.E.3d 441.
¶ 32 Rule 604(d) requires, "[w]hen the [postplea] motion is based on facts that do not appear of record it shall be supported by affidavit." Ill. S.Ct. R. 604(d) (eff. July 1, 2017). In this case, defendant alleges counsel did not attach affidavits to support to the following claims: (1) the incapacitating injury referenced in his Michigan DUI case was a broken thumb; (2) defendant believed the Michigan case was equivalent to a Class 3 felony, making him ineligible for an extended-term sentence; and (3) defendant believed the 2003 Indiana DUI was part of a diversion program and should not have been included as a conviction. The sentencing of defendant's Michigan case involves statutory interpretation rather than a matter outside the record. As to the other claims, counsel furthered the claims when relevant information was not included in the record. However, we need not determine whether counsel was required to attach affidavits supporting these claims in order to strictly comply with the requirements of Rule 604(d), as defendant received a full and fair hearing on his motion to reconsider his sentence.
¶ 33 Our supreme court has indicated Rule 604(d) must not be applied "so mechanically as to require Illinois courts to grant multiple remands and new hearings following an initial remand hearing." Shirley, 181 Ill.2d at 369. According to the court, if "the defendant was afforded a full and fair second opportunity to present a motion for reducing sentence, [there is] limited value in requiring a repeat of the exercise, absent a good reason to do so." Id. However, the court explicitly stated its "holding in no way retreats from this court's call for strict compliance with our rules." Id. at 370. In other words, Shirley "stands for the proposition that where a defendant receives a full and fair hearing, technical noncompliance with Rule 604(d) need not give rise to multiple remands." People v. Evans, 2017 IL App (3d) 160019, ¶ 24, 72 N.E.3d 421.
¶ 34 In this case, as the trial court determined at the hearing on defendant's motion, defendant's claims requiring affidavits did not involve new evidence unavailable at the time of sentencing. "[T]he purpose of a motion to reconsider sentence is not to conduct a new sentencing hearing, but rather to bring to the circuit court's attention changes in the law, errors in the court's previous application of existing law, and newly discovered evidence that was not available at the time of the hearing." People v. Medina, 221 Ill.2d 394, 413, 851 N.E.2d 1220, 1230-31 (2006). Evidence available at the time of sentencing, but not presented, is not cause to reconsider defendant's sentence. In the Michigan case, the nature of the incapacitating injury would have been known to defendant at the time of his conviction in Michigan. In the 2003 Indiana case, defendant believed the case was part of a diversion program and still believed the conviction was diverted by the time of the sentencing hearing, as evidenced by counsel's statement at the hearing on the motion to reconsider defendant "still thinks it was a diversion." Neither claim involves information which was newly discovered after sentencing or was arguably unavailable at the time of sentencing. Thus, no affidavits could further support defendant's claims. Defendant therefore received a full and fair second opportunity to present his claims, and the court could determine, based solely on the record, defendant's claims could not even arguably support reconsideration of his sentence.
¶ 35 Because neither of defendant's claims were grounds for the trial court to reconsider defendant's sentence, it would be an empty formality to require this case to be remanded again. We will not remand this case so defendant's postplea counsel can attach affidavits for claims which would again be rejected by the trial court where the record showed the information would have been available at the time of sentencing.
¶ 36 III. CONCLUSION
¶ 37 For the reasons stated, we affirm the trial court's judgment.
¶ 38 Affirmed.