People v. Orahim, 2-17-0257
| Decision Date | 19 June 2019 |
| Docket Number | No. 2-17-0257,2-17-0257 |
| Citation | 136 N.E.3d 1007,2019 IL App (2d) 170257,434 Ill.Dec. 482 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert Ibrahim ORAHIM, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
¶ 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, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and People v. Jones , 38 Ill. 2d 384, 231 N.E.2d 390 (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, 378 Ill.Dec. 591, 4 N.E.3d 474.
¶ 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, 303 Ill.Dec. 103, 851 N.E.2d 1 (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, 79 Ill.Dec. 625, 464 N.E.2d 223 (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 motion.
¶ 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, 52 Ill.Dec. 608, 422 N.E.2d 610 (1981).1 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 257, 52 Ill.Dec. 608, 422 N.E.2d 610.
¶ 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, 52 Ill.Dec. 608, 422 N.E.2d 610. 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, 52 Ill.Dec. 608, 422 N.E.2d 610.
¶ 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 untimely.
¶ 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, 165 Ill.Dec. 811, 585 N.E.2d 207 (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, 165 Ill.Dec. 811, 585 N.E.2d 207 ; see also People v. Walker , 395 Ill. App. 3d 860, 869, 335 Ill.Dec. 447, 918 N.E.2d 1260 (2009) (); People v. Serio , 357 Ill. App. 3d 806, 817, 294 Ill.Dec. 337, 830 N.E.2d 749 (2005) . 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, 52 Ill.Dec. 608, 422 N.E.2d 610. Clearly, then, the trial court here lacked jurisdiction of defendant's successive motion.
¶ 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, 52 Ill.Dec. 608, 422 N.E.2d 610. 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, 124 Ill.Dec. 737, 529 N.E.2d 718 (1988) ; see also Illinois State Toll Highway Authority v. Gary-Wheaton Bank , 203 Ill. App. 3d 672, 677, 149 Ill.Dec. 99, 561 N.E.2d 377 (1990) (). 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, 400 Ill.Dec. 32, 47 N.E.3d 997. 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, 69 Ill.Dec. 920, 448 N.E.2d 638 (1983), and People v. Gilmore , 356 Ill. App. 3d 1023, 293 Ill.Dec. 323, 828 N.E.2d 293 (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, 400 Ill.Dec. 32, 47 N.E.3d 997 (quoting Talach , 114 Ill. App. 3d at 818, 69 Ill.Dec. 920, 448 N.E.2d 638 ). Thus, under Salem , a trial court has jurisdiction of an untimely motion when it otherwise has jurisdiction of the case.2 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, 259 Ill.Dec. 729, 759 N.E.2d 509 (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 individual case:
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