Illinois Official Reports 

Appellate Court

People v. Bernard, 2014 IL App (2d) 130924

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

ALIA BERNARD, Defendant-Appellant.

District & No. Second District

Docket No. 2-13-0924

Filed

Modified upon denial

of rehearing

December 10, 2014

February 10, 2015

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

Pursuant to the appellate court’s authority under Supreme Court Rule 

366(a)(5), which allows the appellate court to make any other or

further orders and grant any relief, including remandment, that the 

case may require, the appellate court, in view of the trial court’s entry 

of an order that is obviously based on a confused and incorrect 

understanding of the status of the instant case, vacated the trial court’s 

order denying defendant’s motion to withdraw her guilty plea and 

dismiss charges of aggravated driving under the influence and to 

reconsider her sentence and remanded the cause for a new hearing in 

the trial court, with the case returned to the trial court as it existed 

when defendant was initially sentenced; further, defendant shall be 

granted reasonable time to file a new motion to withdraw her guilty 

plea and/or reconsider her sentence if counsel concludes that a new 

motion is necessary in order to include issues and/or prayers for relief 

in light of this posture, and also, counsel shall file a new certificate 

pursuant to Supreme Court Rule 604(d).

Decision Under 

Review

Appeal from the Circuit Court of Kane County, No. 10-CF-1253; the 

Hon. Allen M. Anderson and the Hon. M. Karen Simpson, Judges, 

presiding.
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Judgment Vacated and remanded with directions.

Counsel on

Appeal

Michelle L. Moore and Michael John Sweeney, both of Law Offices 

of Michelle L. Moore & Kim DiGiovanni, and Donald J. Ramsell, of 

Ramsell & Associates, both of Wheaton, for appellant.

Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M. 

Bauer and Marshall M. Stevens, both of State’s Attorneys Appellate 

Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE McLAREN delivered the judgment of the court, with 

opinion.

Justices Burke and Jorgensen concurred in the judgment and opinion.

 OPINION 

¶ 1 Defendant, Alia Bernard, appeals 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 lodging these 

charges were returned in May 2010. Defendant posted bond on May 20, 2010. 

¶ 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 17, 2011, the grand jury returned a 

five-count “Re-Indictment” 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 stricken, 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, defendant entered “unconditional (COLD)” pleas of guilty to the 

two counts of aggravated DUI. The State nol-prossed the remaining charges. On February 8, 

2012, following 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 

 

1We note that, while both counts I and II initially alleged violations of “Section 5/11-501(d)(1)(F),”

the “(d)(1)(F)” was scratched out and a handwritten “a” was inserted. 
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February 15, 2012, defendant 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 filed 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 August 15, 2012, the 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 to 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 notice of appeal. This court entered an order 

granting the motion and remanding the cause to the trial court for Rule 604(d) compliance. 

People v. Bernard, No. 2-12-0928 (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 recent 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 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.” 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 speedy trial issue, that is denied.” Finally, the court denied the motion to 

reconsider 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 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.”

This appeal followed. 

 

2Defendant’s original attorney subsequently moved to withdraw. 
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¶ 9 II. ANALYSIS 

¶ 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 plea 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 (if 

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 

vacated judgment is nullified, canceled, 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 and granting in part the motion to reconsider the sentence was 

vacated when this court issued its summary remand on February 22, 2013. It is also 

axiomatic that amended pleadings supersede 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 reference to the prior pleading supersedes 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 the 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 superseded by her combined motion after remand. 

¶ 11 However, the trial court 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 written 

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, in ruling 

on defendant’s motion to withdraw 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, in 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 under 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 the 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.’ ” (Internal 

quotation marks omitted.) Id. at 324 (quoting Greenlaw v. United States, 554 U.S. 237, 244 
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(2008)). However, under Illinois 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 confidence in a decision that is so obviously based on a confused and incorrect 

understanding of the status 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 motion 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 another amended motion if she determines that 

further amendment would be 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 amend 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.