{ "id": 5435804, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NADINE E. HERMANN, Defendant-Appellant", "name_abbreviation": "People v. Hermann", "decision_date": "2004-05-27", "docket_number": "No. 2-02-0796", "first_page": "107", "last_page": "115", "citations": [ { "type": "official", "cite": "349 Ill. App. 3d 107" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "181 Ill. 2d 359", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821409 ], "year": 1998, "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0359-01" ] }, { "cite": "313 Ill. App. 3d 553", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186522 ], "year": 2000, "pin_cites": [ { "page": "558" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0553-01" ] }, { "cite": "308 Ill. App. 3d 286", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 261378 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "289" }, { "page": "288" }, { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/308/0286-01" ] }, { "cite": "307 Ill. App. 3d 1000", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 173496 ], "year": 1999, "pin_cites": [ { "page": "1003", "parenthetical": "holding that the defendant's motion to reconsider sentence was sufficient to present claim that trial court exceeded its statutory authority in imposing sentence" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/307/1000-01" ] }, { "cite": "174 Ill. 2d 320", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223611 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-2d/174/0320-01" ] }, { "cite": "181 Ill. 2d 409", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821408 ], "weight": 5, "year": 1998, "pin_cites": [ { "page": "410-11" }, { "page": "414" }, { "page": "413" }, { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0409-01" ] }, { "cite": "179 Ill. 2d 331", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801357 ], "weight": 7, "year": 1997, "pin_cites": [ { "page": "332" }, { "page": "332" }, { "page": "333" }, { "page": "333" }, { "page": "333" }, { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0331-01" ] }, { "cite": "209 Ill. 2d 19", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461527 ], "year": 2004, "pin_cites": [ { "page": "28-29" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0019-01" ] }, { "cite": "208 Ill. 2d 291", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2462666 ], "weight": 10, "year": 2003, "pin_cites": [ { "page": "294-95" }, { "page": "296" }, { "page": "296-97" }, { "page": "298" }, { "page": "298-99" }, { "page": "306" }, { "page": "308" }, { "page": "307" }, { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/208/0291-01" ] }, { "cite": "158 Ill. 2d 27", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780262 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "35-36" }, { "page": "33" }, { "page": "33" }, { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0027-01" ] }, { "cite": "186 Ill. 2d 67", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243897 ], "year": 1999, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0067-01" ] } ], "analysis": { "cardinality": 732, "char_count": 20386, "ocr_confidence": 0.752, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.4128814073716267 }, "sha256": "a41d521eaf4d16e2dcc93d4cd7aeffce09ac438e4a27ea9162cb9f80a126a094", "simhash": "1:c2eec50c5f250df0", "word_count": 3419 }, "last_updated": "2023-07-14T17:18:36.100393+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BYRNE and GILLERAN JOHNSON, JJ., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NADINE E. HERMANN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HUTCHINSON\ndelivered the opinion of the court:\nDefendant, 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 \u2014 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\u2019s 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)).\nOn December 7, 2001, in case No. 01 \u2014 CM\u20149020, defendant was charged by information with criminal damage to property (count I) and harassment by telephone (720 ILCS 135/1 \u2014 1(2) (West 2000)) (count II). The alleged victim of both offenses was Michele Ruben-stein, and the criminal damage to property charge arose from the allegation that defendant knowingly damaged the tires on Rubenstein\u2019s automobile. On December 19, 2001, in case No. 01 \u2014 CF\u20144258, defendant was charged by information with criminal damage to property (count I) and trespass to residence (720 ILCS 5/19 \u2014 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.\nOn 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 \u2014 CM\u20149020 and count II of case No. 01 \u2014 CF\u20144258, and defendant agreed to plead guilty to count II in case No. 01 \u2014 CM\u2014 9020 and count I in case No. 01 \u2014 CF\u20144258. 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\u2019s plea. According to the agreed statement of facts:\n\u201cUpon 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\u2019d [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.\u201d\nDefendant 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 \u2014 CM\u20149020 and 01 \u2014 CF\u20144258 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 9 sua sponte and did not inform the State or defense counsel that she had done so.\nThe restitution hearing was held on June 14, 2002, before Judge Joseph R. Waldeck. At the outset, defendant\u2019s attorney advised Judge Waldeck, over the State\u2019s objection, that Judge Winter had written the case numbers next to paragraph 9 of the sentencing order after defendant had signed the order. Defendant\u2019s 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:\n\u201cThe 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.\nThe *** 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 ***.\nObviously, 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.\u201d\nThe State did not pursue restitution for the damage to Frank Amelio\u2019s 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. Ruben-stein 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\u2019s certificate as required by Rule 604(d). Judge Waldeck heard and denied the motion. This appeal followed.\nThis case presents the threshold issue of compliance with Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)), which provides, in pertinent part:\n\u201cNo 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.\u201d\nPrior to a hearing on any postsentencing motion, Rule 604(d) requires defense counsel to \u201cfile with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain defendant\u2019s 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.\u201d 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 (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 (1994).\nRelying on People v. Flowers, 208 Ill. 2d 291 (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\u2019s plea was negotiated, Rule 604(d) required her to file a motion to withdraw guilty plea if she wanted to challenge her sentence. See 188 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. See 730 ILCS 5/5 \u2014 5\u20146(d) (West 2000).\nIn 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. 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. 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, post-conviction 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\u2019s postconviction petition. Flowers, 208 Ill. 2d at 296-97.\nOn appeal, the defendant argued that the provision of the trial court\u2019s sentencing order permitting the Department of Corrections to withhold a portion of her prison income to satisfy the restitution order was void because the trial court lacked any statutory authority to impose the withholding order. The State responded that the appellate court lacked jurisdiction to hear the case because Rule 604(d) required the defendant to file a motion to withdraw guilty plea rather than a motion to reconsider sentence. The State also argued that the motion to reconsider sentence had not been filed within 30 days as required by Rule 604(d). Flowers, 208 Ill. 2d at 298. The appellate court rejected the State\u2019s arguments and held that a motion to reconsider sentence was sufficient under Rule 604(d) where the trial court\u2019s sentence went beyond the terms of the agreement negotiated by the parties. The appellate court also excused the defendant\u2019s failure to timely file her motion to reconsider sentence, arguing that Rule 604(d)\u2019s timing requirements can be excused when the interests of justice so require. The appellate court concluded that the trial court\u2019s withholding order was void and vacated the order. Flowers, 208 Ill. 2d at 298-99.\nOn further appeal, our supreme court concluded that the trial court lacked subject matter jurisdiction to consider the defendant\u2019s motion to reconsider sentence because the motion was not filed within the time required by Rule 604(d). Flowers, 208 Ill. 2d at 306. In so holding, the supreme court recognized the well-established principle of law that a void order may be attacked at any time or in any court, either directly or collaterally. However, the court explained that the issue of voidness must be raised in the context of a proceeding that is properly pending in the courts. Flowers, 208 Ill. 2d at 308. The court concluded that, because the appellate court lacked jurisdiction over the case, it was without authority to grant the defendant relief from the allegedly void withholding order. Flowers, 208 Ill. 2d at 307. The court noted that its conclusion \u201crender[ed] unnecessary consideration of whether the appellate court was correct, on the merits, when it held that Flowers\u2019 Rule 604(d) motion was not deficient for failing to include a request for withdrawal of her guilty plea.\u201d Flowers, 208 Ill. 2d at 307.\nWe agree with defendant that Flowers is unhelpful in resolving the issues presented in this case. In contrast to the situation in Flowers, defendant\u2019s Rule 604(d) motion was timely filed in the trial court. Therefore, provided that defendant filed the appropriate postplea motion required by Rule 604(d), defendant\u2019s appeal is properly before this court and we have no jurisdictional impediment to considering whether defendant is entitled to relief from the allegedly void sentencing order. See People v. Thompson, 209 Ill. 2d 19, 28-29 (2004). The question that we must resolve is whether Rule 604(d) required defendant to move to withdraw her guilty plea in order to assert her challenge to the trial court\u2019s statutory authority to enter the restitution order on the dismissed charge. As noted above, the court in Flowers expressly declined to consider this precise question. We therefore reject the State\u2019s assertions that Flowers controls the outcome of this appeal and conclude that consideration of other authorities is necessary.\nWe begin our analysis with a consideration of the language of the rule. As quoted above, Rule 604(d) provides that, as a prerequisite to filing an appeal from a judgment entered on a guilty plea, a defendant must, within 30 days of the imposition of sentence, file \u201ca 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.\u201d 188 Ill. 2d R. 604(d). Here, the parties do not dispute that defendant seeks to challenge only her sentence and not her underlying plea of guilty. However, this determination does not end the analysis. Rule 604(d) further provides that no appeal shall be taken upon a negotiated plea of guilty \u201cchallenging the sentence as excessive\u201d unless the defendant files, within 30 days of sentencing, a motion to withdraw the guilty plea. 188 Ill. 2d R. 604(d). In this case, defendant does not challenge the trial court\u2019s sentence on the basis that it was excessive. Instead, defendant contends that the restitution order was void because the trial court was without statutory authority to impose restitution on the dismissed count absent an agreement between the parties. Defendant also claims that the trial court was without authority to enter the restitution order because it went beyond the plea agreement reached by the parties. Because defendant has challenged the trial court\u2019s legal authority to order restitution and has not claimed that the sentence was excessive, we conclude that Rule 604(d) did not require defendant to move to withdraw her guilty plea. Rather, we hold that the plain language of the rule required defendant to file only a motion to reconsider sentence.\nWe find support for our conclusion in People v. Williams, 179 Ill. 2d 331 (1997), and People v. Wilson, 181 Ill. 2d 409 (1998). In Williams, the defendant entered a negotiated plea agreement with the State and pleaded guilty to the charge of retail theft. Williams, 179 Ill. 2d at 332. Following sentencing, the defendant filed a timely motion to reconsider sentence arguing that the trial court was without statutory authority to impose consecutive sentences of prison and probation for a single offense. Williams, 179 Ill. 2d at 332. Relying on People v. Evans, 174 Ill. 2d 320 (1996), upon which the present Rule 604(d) is based, the State argued that the defendant was required to withdraw his guilty plea before he could challenge the sentence he received pursuant to the plea agreement. Williams, 179 Ill. 2d at 333. Our supreme court rejected the State\u2019s argument, explaining that \u201cthe defendant does not contend that his sentence was excessive; rather, he argues that the court imposed a sentence which, under the statute, it had no authority to impose.\u201d Williams, 179 Ill. 2d at 333. The supreme court concluded that Evans was inapplicable and did not bar defendant\u2019s claim that his sentence was void because it did not conform to the statute. Williams, 179 Ill. 2d at 333.\nA similar conclusion was reached in Wilson, wherein the defendant entered into a plea agreement with the State and pleaded guilty to charges of aggravated battery and unlawful possession of a controlled substance. Wilson, 181 Ill. 2d at 410-11. Following sentencing, the defendant filed a motion to reduce sentence, arguing that the term of imprisonment ordered by the trial court exceeded the statutory maximum for the offense. Wilson, 181 Ill. 2d at 414. Relying on Williams, the supreme court held that because the defendant contended that his sentence violated statutory requirements, his motion to reduce sentence was sufficient to permit appellate review. Wilson, 181 Ill. 2d at 413; see also People v. Exum, 307 Ill. App. 3d 1000, 1003 (1999) (holding that the defendant\u2019s motion to reconsider sentence was sufficient to present claim that trial court exceeded its statutory authority in imposing sentence).\nFurthermore, we also note that, where a trial court sentences a defendant outside of the agreed-upon terms of a plea agreement, the defendant may properly raise the issue in a motion to reconsider sentence and is not required to file a motion to withdraw the guilty plea. See People v. Foster, 308 Ill. App. 3d 286, 289 (1999). A motion to reconsider sentence is appropriate in such instances because the defendant is seeking only to be sentenced pursuant to his or her agreement with the State and is not seeking to avoid or modify the terms of the plea agreement. Foster, 308 Ill. App. 3d at 288.\nIn light of these authorities, we conclude that defendant\u2019s motion to reconsider sentence satisfied the requirements of Rule 604(d). The motion did not allege that the sentence was excessive and was not an improper attempt by defendant to avoid or modify the terms of her plea agreement with the State. Instead, defendant argued that the trial court was without statutory authority to order restitution on the dismissed charge. Also, defendant asserted that the plea agreement entered into by the parties did not require the payment of restitution on the dismissed charge. Under these circumstances, Rule 604(d) did not require defendant to file a motion to withdraw her guilty plea and to vacate the judgment. See Wilson, 181 Ill. 2d at 412; Williams, 179 Ill. 2d at 333; Foster, 308 Ill. App. 3d at 288. Hence, dismissal of the appeal is not warranted.\nHaving resolved this issue, we are now left with the question of defense counsel\u2019s failure to file an attorney\u2019s certificate as required by Rule 604(d). Defendant asserts that, despite her trial counsel\u2019s failure to comply with the certification requirements of Rule 604(d), judicial economy necessitates that this court consider the issue raised on appeal. We disagree. It is neither a waste of resources nor an exercise in futility to ensure proper compliance with the rules of our supreme court. See People v. Willis, 313 Ill. App. 3d 553, 558 (2000). In Janes, 158 Ill. 2d at 33, the supreme court held that \u201cthe remedy for failure to strictly comply with each of the provisions of Rule 604(d) is a remand to the circuit court for the filing of a new motion to withdraw guilty plea or to reconsider sentence and a new hearing on the motion.\u201d Janes, 158 Ill. 2d at 33. The supreme court has reaffirmed the strict compliance rule articulated in Janes. See People v. Shirley, 181 Ill. 2d 359, 371 (1998).\nLacking the required certification, we have no assurance that trial counsel consulted with defendant, examined the trial court file and the report of proceedings from the plea of guilty, and made necessary amendments to the motion for adequate presentation for any defects in those proceedings. See 188 Ill. 2d R. 604(d). In addition to the alleged errors raised here, there may be other errors that should be presented for the trial court\u2019s review and should be preserved for later review by this court. Pursuant to Janes, we reverse the trial court\u2019s order denying defendant\u2019s motion to reconsider sentence and remand the case so that defendant can file a new postjudgment motion and receive a hearing on that motion in compliance with Rule 604(d). See Janes, 158 Ill. 2d at 33.\nFor the foregoing reasons, we reverse the judgment of the circuit court of Lake County and remand the case for further proceedings pursuant to Rule 604(d).\nReversed and remanded with directions.\nBYRNE and GILLERAN JOHNSON, JJ., concur.", "type": "majority", "author": "JUSTICE HUTCHINSON" } ], "attorneys": [ "G. Joseph Weller and Darren E. Miller, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Michael J. Waller, State\u2019s Attorney, of Waukegan (Martin P Moltz and Sally A. Swiss, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NADINE E. HERMANN, Defendant-Appellant.\nSecond District\nNo. 2\u201402\u20140796\nOpinion filed May 27, 2004.\nG. Joseph Weller and Darren E. Miller, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nMichael J. Waller, State\u2019s Attorney, of Waukegan (Martin P Moltz and Sally A. Swiss, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0107-01", "first_page_order": 125, "last_page_order": 133 }