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______________________________________________________________________________ 2022 IL App (5th) 2200 04 -U NOTICE NOTICE Decision filed 09/06/22. The This order was filed under text of this decision may be NO. 5 -22-0004 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Peti ion for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS , ) Appe al from the ) Circuit Court of Plaintiff

- Appellee , ) Ma con County. )
v. ) No. 17- CF -478 ) DUAN LEWIS , ) Honorable ) Thomas E. Griffith , Defendant -Appellant. ) Judge, presiding.

JUSTICE VAUGHAN delivered the judgment of the court. Presiding Justice Boie and Justice W elc h concurred in the judgment.

ORDER ¶ 1 Held : The trial court lacked jurisdiction of defendant’s “motion to correct mittimus” whe n it was filed more than 30 days after defendant’s guilty plea and sought to change the judgment. Accordingly, we grant OSAD’S motion for leave to withdraw and dismiss the appeal

. ¶ 2 Defendant, Duan Lewis, appeals the trial court’s order dismissing his motion to correct the

mittimus. D efendant’s appointed attorney on appeal, the Office of the State Appellate Defend er (OSAD), concluded this appeal lacks merit. Accordingly, OSAD filed a motion to withdraw as counsel for defendant (see Pennsylvania v. Finley , 481 U.S. 551 (1987)) along with a brief in support of the motion. OSAD provided defendant a copy of its Finley motion and brief. Although this court provided defendant with an opportunity to file a response to OSAD’s motion or explain why this appeal has merit , no response was filed. Having re viewed OSAD’s Finley motion and



### 1brief and the record on appeal, we conclude this appeal lack s merit. Accordingly, we grant OSAD leave to withdraw and dismiss the appeal. ¶ 3 BACKGROUND ¶ 4 On November 19, 2018, following the death of his six -month- old da ughter, defendant pled guilty to involuntary manslaughter and aggravated battery of a child in exchange for a sentence of 10 years’ imprisonment on each count. P ursuant to the agreement , defendant was sentenced to two 10-year prison terms, to be served con secutively. ¶ 5 In 2019, defendant filed a motion to correct the mittimus to reflect that the sentences were to run concurrently, based on an alleged agreement between defendant and his attorney. At the hearing on the motion, his attorney confirmed that the plea agreement was for consecutive sentences and, thus, the mittimus was correct. ¶ 6 In March 2020, defendant filed a motion for leave to file a late notice of appeal in the trial

court . It does not appear that defendant ever filed a motion in this court as required by Illinois Supreme Court Rule 606(c) (eff. July 1, 2017). In any event, the trial court denied the motion. ¶ 7 In November 2020, defendant filed a postconviction petition, which he subsequently withdrew. In November 2021, defendant filed another motion to correct the mittimus to reflect that the sentences were to run concurrently , this time asserting that his consecutive sentences violated

the one

- act, one

- crime rule. The trial court dismissed the motion based on res judicata . Defendant appealed. ¶ 8 ANALYSIS ¶ 9 OSAD asserts that there is no arguably meritorious argument that the trial court erred in dismissing defendant’s second motion to correct the mittimus. We agree.



### 2¶ 10 It is our responsibility to consider the matter of jurisdiction sua sponte

. People ex rel. Haughawout v. Lantow , 59 Ill. App. 2d 406, 410 (1965). Although a trial court has continuing jurisdiction to correct clerical errors and other matters of form so that the record conforms to the actual judgment, it generally loses jurisdiction to modify its judgment or alter a sentence 30 days after entry of the judgment. People v. Flowers , 208 Ill. 2d 291, 303, 306-07 (2003). Here, defendant’s November 2021 “motion to correct [the] mittimus” did not seek to correct any clerical

errors or make the record conform to the oral pronouncement of the judgment. Instead, two years after judgment was entered on his guilty plea, defendant filed a motion seeking to substantive ly modify the judgment of consecutive sentences to concurrent sentences . Accordingly, the trial court was without jurisdiction to consider defendant’s motion, and its dismissal thereof was proper. ¶ 11 Although the trial court did not dismiss defendant’s motion on jurisdictional grounds, this court can affirm the trial court’s judgment on any grounds appearing in the record. Moody v. Federal Exp ress Corp. , 368 Ill. App. 3d 838, 841 (2006)

. For the foregoing reasons, we grant

OSAD’s motion to withdraw and dismiss the appeal

. See Flowers , 208 Ill. 2d at 307 ( w here lower court lacked jurisdiction to entertain a motion, the appellate court should dismiss the appeal).

¶ 12 Motion granted; appeal dismissed

.



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