People v. Hermann

• Decision Date: 27 May 2004
• Docket Number: No. 2-02-0796.,2-02-0796.
• Citation: People v. Hermann, 349 Ill.App.3d 107, 284 Ill.Dec. 857, 810 N.E.2d 647 (Ill. App. 2004)
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Nadine E. HERMANN, Defendant-Appellant.
• Court: Appellate Court of Illinois

810 N.E.2d 647

349 Ill.App.3d 107

284 Ill.Dec. 857

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Nadine E. HERMANN, Defendant-Appellant.

No. 2-02-0796.

Appellate Court of Illinois, Second District.

May 27, 2004.

G. Joseph Weller, Deputy Defender and Darren E. Miller(Court-appointed), Office of the State Appellate Defender, Elgin, for Nadine E. Hermann.

Michael J. Waller, Lake County State's Attorney, Waukegan, Martin P. Moltz, Deputy Director, Sally A. Swiss, Elgin, for the People.

Justice HUTCHINSONdelivered the opinion of the court:

Defendant, Nadine E. Hermann, appeals from an order of the circuit court of Lake County imposing restitution based on a charge of criminal damage to property (720 ILCS 5/21-1(a)(West 2000)) that was dismissed in connection with her negotiated plea of guilty to other charges.Defendant contends that the trial court had no statutory authority to order restitution because she did not agree to pay restitution with respect to that charge.Defendant argues that, because the trial court exceeded its statutory sentencing authority, its order imposing restitution is void and must be vacated.We do not consider the merits of defendant's contention as we find that the case must be remanded to the trial court for compliance with the attorney certification requirements of Supreme Court Rule 604(d)(188 Ill.2d R. 604(d)).

On December 7, 2001, in case No. 01-CM-9020, defendant was charged by information with criminal damage to property (count I) and harassment by telephone (720 ILCS 135/1-1(2)(West 2000))(count II).The alleged victim of both offenses was Michele Rubenstein, and the criminal damage to property charge arose from the allegation that defendant knowingly damaged the tires on Rubenstein's automobile.On December 19, 2001, in case No. 01-CF-4258, defendant was charged by information with criminal damage to property (count I) and trespass to residence (720 ILCS 5/19-4(West 2000))(count II).The alleged victim of both of these offenses was Frank Amelio.The criminal damage to property charge was predicated on damage to a window.

On May 15, 2002, defendant entered a negotiated guilty plea before Judge Diane E. Winter.The State agreed to nol-pros count I of case No. 01-CM-9020 and count II of case No. 01-CF-4258, and defendant agreed to plead guilty to count II in case No. 01-CM-9020 and count I in case No. 01-CF-4258.Evidently, no court reporter was present at the hearing, but the parties have submitted an agreed statement of facts offering a description of events relative to the agreement and defendant's plea.According to the agreed statement of facts:

"Upon negotiation with the State, Defense Counsel presented an offer to the Defendant.The Defendant agreed to the terms and conditions of the plea agreement which included the following: on motion of the State count one (1) of 01 CM 9020 was nolle pros'd [sic]; the Defendant pled to count two (2) concurrent with 01 CF 4258 [sic], was sentenced to eighteen (18) months of probation, a one hundred (100) dollar fine and court costs, probation services fees at five (5) dollars per month, one hundred twenty (120) days in the Lake County Jail with good time credit and credit for time served, one hundred (100) public service hours, open mandate for anger management, no violent or harassing contact with Frank Amelio, no contact with Michelle Rubenstein, and a restitution hearing was set for June 14, 2002, in courtroom 221 at 9:00 a.m. to determine restitution, if any."

Defendant entered her guilty plea, and her attorney prepared a sentencing order using a preprinted form.Paragraph 9 of the conditions of probation obligated defendant to pay restitution in an amount to be determined at the hearing on June 14, 2002.The order did not specify to whom restitution was payable.However, the case numbers 01-CM-9020and01-CF-4258 were handwritten on the order next to paragraph 9.Defendant signed the order in acknowledgment that she had received and read the order.According to the agreed statement of facts, Judge Winter wrote the case numbers next to paragraph 9sua sponte and did not inform the State or defense counsel that she had done so.

The restitution hearing was held on June 14, 2002, before Judge Joseph R. Waldeck.At the outset, defendant's attorney advised Judge Waldeck, over the State's objection, that Judge Winter had written the case numbers next to paragraph 9 of the sentencing order after defendant had signed the order.Defendant's attorney also argued that in entering her negotiated plea, defendant had not intended to admit that Rubenstein was entitled to restitution for the damage to her tires and that defendant would seek to withdraw her plea if the trial court viewed the plea agreement that way.The trial court responded as follows:

"The issue is not whether or not [defendant] admitted guilt or whether or not she agreed to pay restitution.She, as I see it on the face of it, entered into an agreement, which is a bargain or a contract; and in return for her pleading guilty to certain counts, certain other counts were dismissed.

The * * * counts * * * which are alleged in 01 CM 9020 for which the State is seeking restitution, since the restitution issue as pertains to the criminal damage to property since it is not excluded specifically, I would find that it is included * * *.

Obviously, she was on notice by the fact that she pled guilty to one of the counts in 01 CM 9020; and the restitution issue, because the order is silent as to excluding restitution issues regarding any of the counts, I think it is properly included."

The State did not pursue restitution for the damage to Frank Amelio's window.At the restitution hearing, Michele Rubenstein testified that her mother had bought her a new set of tires for $228.65.About a week after the tires were mounted, they were slashed.Rubenstein could not afford another set of new tires, so she purchased a set of used tires for $100.On cross-examination, she acknowledged that she did not see who slashed her tires.The trial court ordered defendant to pay $328.65 in restitution.Defendant filed a motion to reconsider the restitution order.Defense counsel failed to support the motion to reconsider sentence with an attorney's certificate as required by Rule 604(d).Judge Waldeck heard and denied the motion.This appeal followed.

This case presents the threshold issue of compliance with Supreme Court Rule 604(d)(188 Ill.2d R. 604(d)), which provides, in pertinent part:

"No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court 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.No appeal shall be taken upon a negotiated plea of guilty challenging the sentence as excessive unless the defendant, within 30 days of the imposition of sentence, files a motion to withdraw the plea of guilty and vacate the judgment."

Prior to a hearing on any postsentencing motion, Rule 604(d) requires defense counsel to "file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain defendant's contentions of error in the sentence or the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings."188 Ill.2d R. 604(d).Failure to file the appropriate motion ordinarily results in dismissal of the appeal.People v. Linder,186 Ill.2d 67, 74, 237 Ill.Dec. 129, 708 N.E.2d 1169(1999).Where the defendant files the proper motion but his or her attorney fails to file the necessary certificate, the case must be remanded to the trial court for new proceedings in compliance with the rule.People v. Janes,158 Ill.2d 27, 35-36, 196 Ill.Dec. 625, 630 N.E.2d 790(1994).

Relying on People v. Flowers,208 Ill.2d 291, 280 Ill.Dec. 653, 802 N.E.2d 1174(2003), the State argues that this appeal must be dismissed because defendant failed to file the appropriate motion required by Rule 604(d).The State argues that, because defendant's plea was negotiated, Rule 604(d) required her to file a motion to withdraw guilty plea if she wanted to challenge her sentence.See188 Ill.2d R. 604(d).Defendant responds that Flowers is distinguishable and asserts that her timely motion to reconsider sentence was a permissible pleading under Rule 604(d) to assert her contention that the trial court exceeded its statutory sentencing authority when it ordered restitution on a dismissed charge absent an agreement between the parties to do so.See730 ILCS 5/5-5-6(d)(West 2000).

In Flowers,the defendant entered a negotiated plea of guilty to seven counts of forgery and was ordered to pay restitution.Flowers,208 Ill.2d at 294-95, 280 Ill.Dec. 653, 802 N.E.2d 1174.Following the imposition of sentence, the defendant did not file any postplea motions and her direct appeals were subsequently dismissed by the appellate court.Flowers,208 Ill.2d at 296, 280 Ill.Dec. 653, 802 N.E.2d 1174.The defendant then filed a postconviction petition alleging that her trial counsel was ineffective for failing to comply with Rule 604(d).More than 16 months after the defendant was sentenced, postconviction counsel filed a motion to reconsider sentence.The trial court denied the motion and the defendant filed a pro se notice of appeal from the denial.Postconviction counsel then withdrew the defendant's postconviction petition.Flowers,208 Ill.2d at 296-97, 280 Ill.Dec. 653, 802 N.E.2d 1174.

On appeal, the defendant argued that the provision of the trial court's sentencing order permitting the Department of Corrections to withhold a portion...