2014 IL App (2d) 130924 No. 2

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- 0924 O pinion filed December 10, 2014 Mo dified Upon Denial of Rehearing February 10, 2015

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the C ircuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff

- Appellee, ) ) v. ) No. 10

- CF

- 1253 ) ) Honorable ALIA BERNARD , ) Allen M. Anderson and ) M. Karen Simpson , Defendant

- Appellant. ) Judge s , Presiding.

______________________________________________________________________________ JUSTICE McLAREN delivered the judgment of the court, with opinion. Justice s B urke and Jorgensen concurred in the judgment and opinion. OPINION ¶ 1 Defendant , Alia Bernard , app e als from the trial court’s denial of her motions to withdraw her guilty plea and reconsider her sentence. We vacate and remand for further proceedings. ¶ 2 I. BACKGROUND ¶ 3 Defendant was charged with two counts of reckless homicide (720 ILCS 5/9

- 3(a) (West
2008 )) and one count of driving under the influence (any amount of cannabis) (625 ILCS
5/11

- 501(a) (6) (West 2008)) , arising out of a May 24, 2009 , motor vehicle collision that resulted in the deaths of Wade and Denise Thomas. The grand jury indictments lodgin g these charges were returned in May 2010. Defendant posted bond on May 20, 2010.2014 IL App (2d) 130924

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- ¶ 4 After the trial court denied various pretrial motions in March 2011 , the case was continued for trial to June 13, 2011. However, on May 1 7 , 2011, the grand jury returned a five

- count “Re

- I ndictment ” that charged, in addition to the three counts in the original indictment, two counts of aggravated driving under the influence (aggravated DUI) (625 ILCS 5/11

- 501( d ) (1)(F) (West 2008)) (counts I and II)

. 1 The trial date was stri cken, and the matter was continued for defendant to file any motions relating to the new indictment . Defendant filed a motion to find the aggravated DUI statute unconstitutional, which the trial court denied on October 28, 2011. ¶ 5 On December 9, 2011, defen dant entered “unconditional (COLD)” pleas of guilty to the two counts of a ggravated DUI . The State nol

- prossed the remaining charges. On February 8, 2012, f ollowing a sentencing hearing, the trial court , Judge Allen M. Anderson presiding, sentenced defendant to concurrent terms of seven years in the Department of Corrections

. On February 15, 2012, d efendant filed a timely motion to reduce the sentence , praying the court to either: (1) find that “extraordinary circumstances exist and impose a period of probation”; (2) recommend that defendant be placed in the impact incarceration program; or (3) reduce her sentence to six years. ¶ 6 On March 22, 2012, attorney Michelle Moore entered her appearance as additional counsel for defendant

. 2 On June 22, Moore f iled a motion to withdraw the plea and dismiss the aggravated DUI charges , raising issues of compulsory joinder , speedy trial, and ineffective assistance of counsel

. The trial court continued the case for a hearing on both motions. On

1 We note that, while both counts I and II initially alleged violation s of “Section
5/11

- 501(d)(1)(F),” the “(d)(1)(F)” was scratched out and a handwritten “a” was inserted

. 2 Defendant’s original attorney subsequently moved to withdraw.2014 IL App (2d) 130924

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- August 15, 2012, th e trial court denied the motion to withdraw the plea , stating: “one, I don’t think that it was timely, [two] if it were timely I do not believe that the argument raised is sufficient to cause the plea of guilty to be withdrawn, at least under the arguments that I’ve heard so far.” After additional argument on defendant’s motion to reduce the sentence, the trial court reduced the sentence to six years in the Department of Corrections, the minimum sentence allowed. Defendant timely appealed from the August 15 order, specifying both the denial of her motion t o withdraw the plea and “the Court’s Failure to Exercise Discretion at Sentencing, and Entry of an Order Granting in Part and Denying in Part Defendant’s Motion to Reconsider
Sentence.” ¶ 7 In this court, defendant filed a motion for an immediate remand , noting that a certificate pursuant to Illinois Supreme Court Rule 604(d) (eff. July 1, 2006) had not been filed; as strict compliance with Rule 604(d) is required, defendant requested an immediate remand for Rule 604(d) compliance with leave to refile a no tice of appeal. T his court entered an order granting the motion and remanding the cause to the trial court for Rule 604(d) compliance. People v. Bernard , No. 2

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- 0928 (Feb. 22, 2013) (minute order). ¶ 8 On May 10, 2013, defendant filed an “AMENDED MOTION TO WITHDRAW PLEA
AND DISMISS AGGRAVATED DRIVING UNDER THE INFLUENCE CHARGES AND TO RECONSIDER SENTENCE, PURSUANT TO REMAND.” Defendant’s arguments regarding withdrawing the plea were the same as in her original motion, with the addition of citations to

rece nt case law. Counsel also filed a Rule 604(d) certificate. The trial court, Judge M . Karen Simpson now presiding, denied the motion on August 21 , 2013

. The court recounted the procedural history of the case up to the filing of the original motion to withdraw the plea. The court then found that it “lacks jurisdiction with respect to the Motion to Withdraw the Plea of2014 IL App (2d) 130924

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- Guilty, and I further note that the Defendant failed to seek any extension of time for filing the Motion to Withdraw the Plea of Guilty.” The court then addressed the issues of speedy trial , compulsory joinder, and ineffective assistance and concluded that “the issue with respect to the dismissing the charges because of the compulsory joinder spee dy trial issue, that is denied.” Finally, the court denied the motion to recon sider the sentence , stating: “I did have an opportunity to review and read the transcript from the Sentencing Hearing and then I note that when the matter did come back before Judge Anderson, when this
reques t was made previously, Judge Anderson did, in fact, reconsider and in fact changed the Defendant’s sentence. I don’t see that there’s anything new that has been presented to this Court in this regard, so the Motion is denied.” This appeal followed. ¶ 9 II. A NALYSIS ¶ 10 Our supreme court has held that the appropriate remedy for defense counsel’s failure to file a Rule 604(d) certificate is: “a remand for (1) the filing of a Rule 604(d) certificate; (2) the opportunity to file a new motion to withdraw the guilty p lea and/or reconsider the sentence, if counsel concludes that a new motion is necessary; and (3) a new motion hearing. ” People v. Lindsay , 239 Ill. 2d 522, 531 (2011). It is axiomatic that , when this court remands a cause for the filing of a new motion (i f necessary) and a hearing on a new motion, the order that is the subject of the appeal is vacated. An order that is left intact does not require a remand for further proceedings. A vacate d judgment is nullified, cancel ed, and void. In re K.S. , 365 Ill. App. 3d 566, 577 (2006). Thus, the trial court’s August 15, 2012 , order denying defendant’s motion to withdraw the guilty plea and2014 IL App (2d) 130924

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- granting in part the motion to reconsider the sentence was vacated when this court issued its summary remand on F ebruary 22, 2013. It is also axiomatic that amended pleadings supers ede prior pleadings

. See People v. Cross , 144 Ill. App. 3d 409, 412 (1986) (“[A]s a general rule, an amendment which is complete in itself and which makes no refere nce to the prior plead ing
supers edes it, and the original pleading ceases to be a part of the record, being in effect abandoned or withdrawn.”)

. Defense counsel apparently concluded “ that a new motion is
necessary ” ( Lindsay , 239 Ill. 2d at 531) and clearly took advantage of th e opportunity to file a new motion , to both withdraw the guilty plea and reconsider the sentence. Thus, defendant’s prior motions to withdraw the plea and reconsider the sentence were supers eded by her combined motion after remand. ¶ 11 However, t he trial cour t and the State appeared to be confused as to the status of defendant’s prior motions and the trial court’s order disposing of them. In both its w ritten response to defendant’s combined motion and at oral argument on the motion, the State contended that the court lacked jurisdiction to hear the motion to withdraw the plea , because defendant did not timely file her original motion to withdraw the plea. On remand, i n ruling on defendant’s motion to wit hdraw the plea, the trial court found that it lacked “ jurisdiction with respect to the Motion to Withdraw the Plea of Guilty, and I further note that the Defendant failed to seek any extension of time for filing the Motion to Withdraw the Plea of Guilty.” This , again, clearly referenced the original motion to withdraw the plea. ¶ 12 Further , i n addressing defendant’s argument regarding her sentence, the trial court stated that , “when this request was made previously, Judge Anderson did, in fact, reconsider and in fact changed the Defendant’s sentence. I don’t see that there’s anything new that has been presented to this Court in this regard, so the Motion is denied.” While the trial court denied relief under2014 IL App (2d) 130924

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- defendant’s post

- remand motion, the court did so based on Judge Anderson’s prior ruling reducing defendant’s sentence to concurrent six

- year terms . However, Judge Anderson’s ruling had been vacated by this court’s February 22, 2013 , remand order. ¶ 13 We note that defendant does not raise th e issue of the trial court’s confused ruling on her post

- remand motions. Other than for assessing subject matter jurisdiction, this court will not normally search the record for unargued and unbriefed reasons to reverse a trial court. See People v. Givens , 237 Ill. 2d 311, 323 (2010). Courts are to “ ‘wait for cases to come to us, and when they do we normally decide only questions presented by the parties.’ ” Id

. a t 324 ( quoting Greenlaw v. United States , 554 U.S. 237, 243 (2008). However, under Illinoi s Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994) , this court “may, in its discretion, and on such terms as it deems just, * ** make any other and further orders and grant any relief, including a remandment, *** that the case may require.” We have no confi dence in a decision that is so obviously based on a confused and incor rect understanding of the sta tus of the case. ¶ 14 We must vacate the trial court’s order of August 21, 2013 , and remand the cause for a new hearing on defendant’s May 10, 2013, amended motion

. In light of the prior confusion in this

case , we remind both the trial court and the parties that, as we have previously vacated the trial
court’s August 15, 2012 , order, the trial court’s reduction of defendant’s sentence contained in that order is “nullified, canceled, and void.” See In re K.S. , 365 Ill. App. 3d at 577. Thus, defendant’s sentence stands at the original seven years, not the reconsidered six years, in the Department of Corrections. As defense counsel has already filed a Rule 604 (d) certificate and a

new m otion following our February 2013 remand, all that remains to be done, pursuant to Lindsay , is to hold a new hearing on defendant’s amended motion . Of course, defendant is free to seek leave to file an other amended motion if she determines that further amendment would be2014 IL App (2d) 130924

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- beneficial in light of this opinion , and the court has the discretion to grant or deny such leave

. See In re Tyrese J. , 376 Ill. App. 3d 689, 702 (2007) (“The circuit court has broad discretion in motions to ame nd pleadings prior to entry of final judgment ***.”)

. ¶ 15 III. CONCLUSION ¶ 16 The judgment of the circuit court of Kane County is vacated , and the cause is remanded for further proceedings in accordance with this opinion. ¶ 17 Vacated and remanded with directions.