{ "id": 4293083, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANNY A. DeROSA, Defendant-Appellant", "name_abbreviation": "People v. DeRosa", "decision_date": "2009-11-25", "docket_number": "No. 5\u201408\u20140069", "first_page": "769", "last_page": "780", "citations": [ { "type": "official", "cite": "396 Ill. App. 3d 769" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "700 N.E.2d 1039", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "1044", "parenthetical": "same" } ], "opinion_index": 0 }, { "cite": "183 Ill. 2d 261", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209970 ], "year": 1998, "pin_cites": [ { "page": "270-71", "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0261-01" ] }, { "cite": "690 N.E.2d 995", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "998" } ], "opinion_index": 0 }, { "cite": "181 Ill. 2d 24", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821423 ], "year": 1998, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0024-01" ] }, { "cite": "673 N.E.2d 244", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "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": "688 N.E.2d 308", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "supervisory order" } ], "opinion_index": 0 }, { "cite": "175 Ill. 2d 545", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1997, "pin_cites": [ { "parenthetical": "supervisory order" } ], "opinion_index": 0 }, { "cite": "681 N.E.2d 1089", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "1092-94" } ], "opinion_index": 0 }, { "cite": "289 Ill. App. 3d 357", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 351027 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "362-65" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0357-01" ] }, { "cite": "725 N.E.2d 783", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 10, "year": 2000, "pin_cites": [ { "page": "784" }, { "page": "784" }, { "page": "784" }, { "page": "784" }, { "page": "785", "parenthetical": "holding that \"the rules of waiver do not apply\"" }, { "page": "784" }, { "page": "784" }, { "page": "784" }, { "page": "785" } ], "opinion_index": 0 }, { "cite": "311 Ill. App. 3d 968", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415371 ], "weight": 10, "year": 2000, "pin_cites": [ { "page": "969" }, { "page": "969" }, { "page": "969" }, { "page": "969" }, { "page": "971" }, { "page": "970" }, { "page": "970" }, { "page": "970" }, { "page": "971" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/0968-01" ] }, { "cite": "757 N.E.2d 442", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "parenthetical": "supervisory order" }, { "parenthetical": "supervisory order" } ], "opinion_index": 0 }, { "cite": "195 Ill. 2d 562", "category": "reporters:state", "reporter": "Ill. 2d", "weight": 3, "year": 2001, "pin_cites": [ { "parenthetical": "supervisory order" }, { "parenthetical": "supervisory order" } ], "opinion_index": 0 }, { "cite": "747 N.E.2d 1095", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 12, "year": 2001, "pin_cites": [ { "parenthetical": "supervisory order" }, { "page": "1096-97" }, { "page": "1097" }, { "page": "1099" }, { "page": "1098-99" }, { "page": "1099" }, { "page": "1097-98" }, { "page": "1099" }, { "page": "1099" }, { "page": "1099" }, { "page": "1100" } ], "opinion_index": 0 }, { "cite": "321 Ill. App. 3d 203", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132491 ], "weight": 12, "year": 2001, "pin_cites": [ { "parenthetical": "supervisory order" }, { "page": "204-05" }, { "page": "205" }, { "page": "207" }, { "page": "207" }, { "page": "208" }, { "page": "206" }, { "page": "207-08" }, { "page": "208" }, { "page": "208" }, { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0203-01" ] }, { "cite": "874 N.E.2d 935", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 12, "year": 2007, "pin_cites": [ { "page": "936" }, { "page": "936" }, { "page": "936-37" }, { "page": "937" }, { "page": "937" }, { "page": "936" }, { "page": "939" }, { "page": "938-39" }, { "page": "939" }, { "page": "939" }, { "page": "938" } ], "opinion_index": 0 }, { "cite": "375 Ill. App. 3d 1049", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4272578 ], "weight": 12, "year": 2007, "pin_cites": [ { "page": "1050" }, { "page": "1050-51" }, { "page": "1050-51" }, { "page": "1051" }, { "page": "1051" }, { "page": "1050" }, { "page": "1053-54" }, { "page": "1053" }, { "page": "1053" }, { "page": "1054" }, { "page": "1052" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/375/1049-01" ] }, { "cite": "802 N.E.2d 1174", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "1180" }, { "page": "1180" }, { "page": "1180-81", "parenthetical": "explaining that where a trial court fails to give the admonitions now required by Rule 605(b), \"the appropriate course is to remand the cause to the trial court for strict compliance with Rule 604(d)\"" } ], "opinion_index": 0 }, { "cite": "208 Ill. 2d 291", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2462666 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "300-01" }, { "page": "301" }, { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/208/0291-01" ] }, { "cite": "735 N.E.2d 605", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 2000, "pin_cites": [ { "page": "610" }, { "page": "606" }, { "page": "611" }, { "page": "611" }, { "page": "611" }, { "page": "613", "parenthetical": "remanding to allow a defendant sentenced two years before Evans was decided to file the proper motion" } ], "opinion_index": 0 }, { "cite": "192 Ill. 2d 211", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 453268 ], "weight": 6, "year": 2000, "pin_cites": [ { "page": "220-21" }, { "page": "212" }, { "page": "223" }, { "page": "224" }, { "page": "224" }, { "page": "227-28" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/192/0211-01" ] }, { "cite": "630 N.E.2d 790", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "793-94" } ], "opinion_index": 0 }, { "cite": "158 Ill. 2d 27", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780262 ], "year": 1994, "pin_cites": [ { "page": "35-36" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0027-01" ] }, { "cite": "708 N.E.2d 1169", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 11, "year": 1999, "pin_cites": [ { "page": "1173" }, { "page": "1170" }, { "page": "1172-73" }, { "page": "1170" }, { "page": "1170" }, { "page": "1173" }, { "page": "1175", "parenthetical": "Freeman, C.J., specially concurring" }, { "page": "1173" }, { "page": "1172", "parenthetical": "explaining that a negotiated plea is an agreement not to challenge any sentence below the agreed-upon cap" }, { "page": "1171-72" }, { "page": "1172" } ], "opinion_index": 0 }, { "cite": "186 Ill. 2d 67", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243897 ], "weight": 11, "year": 1999, "pin_cites": [ { "page": "74" }, { "page": "69" }, { "page": "74" }, { "page": "69" }, { "page": "69" }, { "page": "74" }, { "page": "79" }, { "page": "74" }, { "page": "74" }, { "page": "72" }, { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0067-01" ] }, { "cite": "769 N.E.2d 21", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "28" } ], "opinion_index": 0 }, { "cite": "199 Ill. 2d 286", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58901 ], "year": 2002, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0286-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 3, "year": 2000, "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] } ], "analysis": { "cardinality": 936, "char_count": 28213, "ocr_confidence": 0.761, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14441343877577417 }, "sha256": "a209dc9656bfe6641283816c98c86b11652f8c65ff79f381f436709577aac148", "simhash": "1:222033fcb7c70cc5", "word_count": 4783 }, "last_updated": "2023-07-14T21:39:01.503812+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANNY A. DeROSA, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE CHAPMAN\ndelivered the opinion of the court:\nThe defendant, Danny A. DeRosa, pled guilty to two counts of home invasion (720 ILCS 5/12 \u2014 11(a)(2) (West 2006)). In exchange for the defendant\u2019s guilty plea, the State dropped two additional charges and agreed that the sentences imposed on the two remaining charges would be served concurrently. The court sentenced the defendant to extended-term sentences of 45 years on each count, and he filed a motion to reconsider that sentence, arguing that extended-term sentences were improper under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). He did not file a motion to withdraw his guilty plea, and his counsel did not file a certificate of compliance with Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)). The defendant appeals from the trial court\u2019s order denying his motion to reconsider. Because of the defendant\u2019s failure to comply with the requirements of Rule 604, the merits of the appeal are not before us. Rather, we must determine whether to dismiss the appeal outright or remand to the trial court to allow defense counsel to comply with the certification requirements of Rule 604. We dismiss the appeal.\nOn August 31, 2007, the State filed a two-count information charging the defendant with one count each of residential burglary (720 ILCS 5/19 \u2014 3 (West 2006)) and theft (720 ILCS 5/16 \u2014 1(a)(1)(A) (West 2006)). On September 5, 2007, the State filed a four-count amended information adding two counts of home invasion (720 ILCS 5/12\u2014 11(a)(2) (West 2006)). The four charges stemmed from three separate incidents that all occurred on August 30, 2007.\nIn December 2007, the defendant agreed to plead guilty to the two counts of home invasion. In exchange for his plea, the State agreed to withdraw the charges of residential burglary and theft. The State further agreed that the sentences imposed for the home invasion charges would be served concurrently rather than consecutively. No other agreements were made with respect to sentencing.\nOn December 5, the court held a guilty plea hearing. Defense counsel outlined the plea agreement for the court. The court then advised the defendant that he could be sentenced to anywhere from 6 to 30 years in prison for home invasion but that if the court found that an extended term was appropriate, he could be sentenced to up to 60 years. The court further advised the defendant that it was up to the judge to decide whether the defendant would be sentenced to \u201c6 years in the penitentiary, 30 years, or 60 years.\u201d The defendant indicated that he understood this. The State then presented a factual basis, and the court accepted the defendant\u2019s plea.\nOn January 3, 2008, the court held a sentencing hearing. The victims of the home invasion charges both testified. The first man testified that he was 70 years old at the time of the crime. The second victim was 76 years old when the crime occurred. Both described the serious injuries they sustained as a result of the defendant\u2019s attacks. The presentence investigation report, which had been filed with the court a few days earlier, indicated that the defendant had numerous prior felony convictions in Missouri and one in Illinois, most of which were for violent crimes. The report also indicated that the defendant was serving a mandatory-supervised-release term for the Illinois conviction when he committed the crimes involved in this case. In light of the victims\u2019 ages and the defendant\u2019s criminal history, the State argued that extended-term sentences were appropriate. The defendant argued that the State could not seek extended-term sentences because it had failed to either (1) allege in the charging instrument the facts upon which it relied to enhance the defendant\u2019s sentence or (2) provide him with written notice of these facts. See 725 ILCS 5/lll \u2014 3(c\u20145) (West 2006).\nThe court found that extended-term sentences were appropriate based on the following aggravating factors: (1) both victims suffered serious harm, (2) both victims were older than 60 years old, (3) the defendant had numerous prior felony convictions, and (4) the offenses were committed while the defendant was on mandatory supervised release. The court sentenced the defendant to terms of 45 years on each conviction, to be served concurrently. The court then advised the defendant that he must file a motion to withdraw his guilty plea if he wanted to appeal these sentences.\nOn January 15, 2008, the defendant filed a motion to reconsider the sentence, without filing a motion to withdraw his guilty plea. In it, he alleged that he had entered into an \u201c \u2018open\u2019 plea\u201d agreement, under which the only agreement on sentencing was that the sentences would be served concurrently, not consecutively. He argued, as he did at the hearing, that the State may only seek an extended-term sentence if it alleges in the charging instrument any facts relied upon to qualify for the extended-term sentence or subsequently gives the defendant written notice. See 725 ILCS 5/111 \u2014 3(c\u20145) (West 2006). He alleged that the State did neither in this case.\nThe court held a hearing on the defendant\u2019s motion to reconsider his sentence on February 4, 2008. The defendant argued, as he did in his motion, that the relevant statute provides that any facts relied upon to increase the range of penalties must be alleged in the charging instrument or must be otherwise provided to the defendant in writing. See 725 ILCS 5/111 \u2014 3(c\u20145) (West 2006). He acknowledged that the statute specifically excludes prior convictions, one of the factors used here to enhance the defendant\u2019s sentence. The State argued that a guilty plea waives these requirements. See People v. Jackson, 199 Ill. 2d 286, 298, 769 N.E.2d 21, 28 (2002).\nAt the end of the hearing, the court denied the motion to reconsider and admonished the defendant as follows: \u201cIf you wish to appeal from this order, you\u2019ve got 30 days to file your Notice of Appeal with the Fifth District Appellate Court by filing a motion \u2014 Notice of Appeal in the Circuit Clerk\u2019s Office ***.\u201d The defendant filed his notice of appeal that day.\nOn June 11, 2008, the defendant filed in this court a motion for summary relief pursuant to Supreme Court Rule 23(c) (166 Ill. 2d R. 23(c)). He requested that this court reverse the order denying his motion to reconsider sentence and remand for further postplea proceedings in light of counsel\u2019s failure to comply with the requirements of Rule 604. He argued that his counsel failed to comply with Rule 604 in two ways. First, he failed to file a certificate of compliance indicating that he had examined the trial court record and consulted with the defendant to determine his contentions of error. See 210 Ill. 2d R. 604(d). The defendant noted that counsel in fact could not have complied with this requirement because the transcripts from his guilty plea hearing were not available until March 3, several weeks after he filed his motion on January 15. Second, counsel did not file a motion to withdraw the defendant\u2019s guilty plea, which is required if a defendant wishes to challenge a sentence imposed pursuant to a negotiated plea agreement. See 210 Ill. 2d R. 604(d); People v. Linder, 186 Ill. 2d 67, 74, 708 N.E.2d 1169, 1173 (1999). Finally, he argued that the remedy for this failure to strictly comply with both requirements of Rule 604 was to remand the case to the trial court to allow counsel to file a motion in accordance with the required procedures. See Linder, 186 Ill. 2d at 69, 708 N.E.2d at 1170, citing People v. Janes, 158 Ill. 2d 27, 35-36, 630 N.E.2d 790, 793-94 (1994).\nOn June 18, the State filed an objection to the defendant\u2019s motion for summary relief. The State argued that summary relief was not appropriate because our decision would not be clearly controlled by existing authority. On February 4, 2009, this court denied the defendant\u2019s request for summary relief. The parties thereafter submitted briefs, raising essentially the same arguments they did in their respective motions. We will consider those arguments in more detail after a brief overview of the relevant requirements of Rule 604.\nRule 604(d) contains two provisions that are relevant here. First, the rule provides as follows:\n\u201cNo 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. For purposes of this rule, a negotiated plea of guilty is one in which the prosecution has bound itself to recommend a specific sentence, or a specific range of sentence, or where the prosecution has made concessions relating to the sentence to be imposed and not merely to the charge or charges then pending.\u201d 210 Ill. 2d R. 604(d).\nThis is generally known as the \u201cmotion requirement.\u201d By its express terms, it is applicable only to negotiated pleas, not to open pleas. The premise underlying this requirement is that when a defendant pleads guilty in exchange for a limit on the sentence that can be imposed, allowing the defendant to challenge that sentence without withdrawing his guilty plea \u201cunfairly binds the State to the terms of the plea agreement while giving the defendant the opportunity to avoid or modify those terms.\u201d Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1172-73.\nRule 604(d) further provides as follows:\n\u201cThe defendant\u2019s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain [the] 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 210 Ill. 2d R. 604(d).\nThis is known as the \u201ccertification requirement\u201d of Rule 604, and it is applicable to any postplea motion. The purpose of this requirement is to ensure that defense counsel considers all the possible grounds for either withdrawing the guilty plea or (in the case of an open plea) challenging the sentence. Linder, 186 Ill. 2d at 69, 708 N.E.2d at 1170.\nCourts treat the failure to comply with these requirements differently. As the defendant correctly notes, the remedy for a failure to comply with the certification requirement is to remand to the trial court for a new motion and a hearing in compliance with the rule. Linder, 186 Ill. 2d at 69, 708 N.E.2d at 1170. However, where a defendant has failed to comply with the motion requirement, the appellate court generally cannot reach the merits of his arguments and must instead dismiss the appeal. Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1173.\nThe parties agree that the motion requirement of Rule 604 does apply here. As previously noted, the motion requirement applies only when a defendant pleads guilty in a negotiated plea. A defendant who pleads guilty in an open plea \u2014 or in exchange for the State\u2019s agreement to drop additional charges without any concessions related to the sentence \u2014 may challenge his sentence as excessive without moving to withdraw his guilty plea. People v. Diaz, 192 Ill. 2d 211, 220-21, 735 N.E.2d 605, 610 (2000). We note that here, unlike in Linder, the plea agreement did not include any concessions regarding the length of the sentence to be imposed; it did, however, place a limitation on the sentence due to the agreement that the sentences on the two charges would be served concurrently. Although we agree with the parties that the motion requirement is applicable, we believe the issue merits further discussion.\nThe supreme court addressed a similar scenario in Diaz. There, in exchange for the defendant\u2019s guilty plea to multiple charges, the State dismissed other pending charges and agreed that it would not seek either extended-term sentences or consecutive sentences on the remaining charges. Diaz, 192 Ill. 2d at 212, 735 N.E.2d at 606. The court found that the negotiated plea agreement included concessions by the State related to \u201cboth the charging and sentencing aspects of [the] case.\u201d Diaz, 192 Ill. 2d at 223, 735 N.E.2d at 611. In reaching this conclusion, the court focused on both the agreement not to seek extended-term sentences and the agreement not to seek consecutive sentences. The court pointed out that both of these concessions allowed the defendant to \u201creap[ ] a sentencing benefit\u201d as a result of his negotiated plea. Diaz, 192 Ill. 2d at 224, 735 N.E.2d at 611. The court also explained that, as a result of these concessions, \u201cthe State \u2018limited its ability to argue at sentencing from the full panoply of penalties contained in the Code of Corrections.\u2019 \u201d Diaz, 192 Ill. 2d at 224, 735 N.E.2d at 611, quoting Linder, 186 Ill. 2d at 79, 708 N.E.2d at 1175 (Freeman, C.J., specially concurring). Here, too, the State agreed to limit its ability to argue for the full panoply of penalties otherwise available. Moreover, the defendant certainly benefits from the State\u2019s agreement not to seek consecutive sentences. We thus conclude that the motion requirement is applicable.\nAs we have previously stated, when a defendant does not comply with Rule 604\u2019s motion requirement, we must dismiss the appeal. Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1173. Put another way, filing the appropriate motion is a precondition to seeking the relief the defendant here seeks. People v. Flowers, 208 Ill. 2d 291, 300-01, 802 N.E.2d 1174, 1180 (2003). Although he acknowledges that this is the rule, he argues that the rule of Linder \u201chas not been uniformly employed or enforced to dismiss appeals.\u201d In support of his position, the defendant cites People v. Green, 375 Ill. App. 3d 1049, 874 N.E.2d 935 (2007), People v. Harden, 321 Ill. App. 3d 203, 747 N.E.2d 1095 (2001), vacated, 195 Ill. 2d 562, 757 N.E.2d 442 (2001) (supervisory order), and People v. Guerrero, 311 Ill. App. 3d 968, 725 N.E.2d 783 (2000). We find no support for the defendant\u2019s position in any of these cases.\nIn Green, the defendant pled guilty to a drug charge in exchange for the State\u2019s recommendation of a sentence cap of 12 years\u2019 imprisonment. Green, 375 Ill. App. 3d at 1050, 874 N.E.2d at 936. The trial court sentenced him to nine years in prison and imposed various fines and fees for drug-related offenses. Green, 375 Ill. App. 3d at 1050-51, 874 N.E.2d at 936. The court gave him credit against his prison sentence for time spent in jail prior to sentencing, but it did not give him the statutory $5-per-day credit against his fines (see 725 ILCS 5/110 \u2014 14(a) (West 2004)). Green, 375 Ill. App. 3d at 1050-51, 874 N.E.2d at 936-37. The trial court properly admonished the defendant that if he did not file a motion to withdraw his plea within 30 days, he would give up his right to appeal his sentence. Instead of doing so, however, the defendant filed a motion to reconsider his sentence. Green, 375 Ill. App. 3d at 1051, 874 N.E.2d at 937. As here, the trial court heard arguments on the merits of the defendant\u2019s sentencing challenge despite the lack of a proper motion. The court denied the motion to reconsider the sentence, and the defendant appealed. Green, 375 Ill. App. 3d at 1051, 874 N.E.2d at 937.\nThe key distinction between Green and the case before us is the issue raised on appeal. The defendant in Green did not ask the appellate court to consider whether his sentence was excessive. He argued only that he was entitled to the statutorily mandated $5-per-day credit against his fines. Green, 375 Ill. App. 3d at 1050, 874 N.E.2d at 936. In deciding to reach the merits of this argument, the question the Second District addressed was not, as here, whether the specific relief sought was precluded by the defendant\u2019s failure to file a motion. Rather, the question was whether the defendant\u2019s motion to reconsider sentence\u2014 which, the court explained, was timely but unauthorized \u2014 tolled the 30-day time period for filing an appeal. See Green, 375 Ill. App. 3d at 1053-54, 874 N.E.2d at 939.\nCiting the supreme court\u2019s decision in Flowers, the Second District explained that although a defendant\u2019s failure to file the proper motion generally precludes appellate review on the merits, the requirements of Rule 604 are not jurisdictional. Green, 375 Ill. App. 3d at 1053, 874 N.E.2d at 938-39 (relying on Flowers, 208 Ill. 2d at 301, 802 N.E.2d at 1180). Thus, the court stated, \u201c[The] defendant\u2019s failure to follow Rule 604(d) by moving to withdraw his guilty plea and vacate the judgment subjected him to the consequence actually specified by the rule \u2014 the loss of his right to appeal the judgment.\u201d (Emphasis added.) Green, 375 Ill. App. 3d at 1053, 874 N.E.2d at 939.\nThe court went on to consider the interplay between Rules 604 and 606 (210 Ill. 2d R. 604; 188 Ill. 2d R. 606) to determine whether the appeal was timely for purposes of appellate jurisdiction. In so doing, the court found that a defendant has 30 days after the trial court \u201cdisposes of\u2019 any timely filed motion against the judgment in which to file his appeal. \u201cDisposing of\u2019 a motion, according to the Second District, could mean denying a proper motion to vacate the plea or dismissing an improperly filed motion to reconsider the sentence. Green, 375 Ill. App. 3d at 1054, 874 N.E.2d at 939. The court concluded that the defendant\u2019s appeal was therefore timely.\nThe State acknowledges that, under Flowers, the requirements of Rule 604 are not jurisdictional, but it argues that Green was wrongly decided. We emphasize, however, that Green dealt with appellate jurisdiction to consider an issue not expressly covered by Rule 604\u2014 specifically, statutory sentence credit. That issue is not before us in this appeal. The defendant here raises an issue directly related to the propriety of his sentence. Under Green, as under Linder, the defendant lost the right to raise that issue by failing to file a motion to withdraw his guilty plea.\nThe Fourth District reached a similar conclusion in Guerrero. There, as in Green, the defendant pled guilty to a drug charge in exchange for an agreement by the State not to seek a sentence above a specified cap. Guerrero, 311 Ill. App. 3d at 969, 725 N.E.2d at 784. As in Green, the trial court accepted his plea, sentenced him within the agreed-upon range, and imposed drug-related fees and fines without giving the defendant a monetary credit against those fines for time spent in jail prior to sentencing. Guerrero, 311 Ill. App. 3d at 969, 725 N.E.2d at 784. The defendant appealed, arguing that he was entitled to the statutory credit. Like the defendant in Green, that was his sole contention on appeal. Guerrero, 311 Ill. App. 3d at 969, 725 N.E.2d at 784.\nCiting Linder, the State argued that the defendant could not file any appeal without first filing a motion to withdraw his guilty plea. Guerrero, 311 Ill. App. 3d at 969, 725 N.E.2d at 784. The appellate court treated this as a waiver argument, not a jurisdictional argument. Guerrero, 311 Ill. App. 3d at 971, 725 N.E.2d at 785 (holding that \u201cthe rules of waiver do not apply\u201d); see also Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1172 (explaining that a negotiated plea is an agreement not to challenge any sentence below the agreed-upon cap).\nIn finding the rules of waiver inapplicable, the Fourth District considered a supervisory order of the supreme court vacating one of its previous decisions. The previous case, People v. Moore, 289 Ill. App. 3d 357, 681 N.E.2d 1089 (1997), vacated in relevant part, 175 Ill. 2d 545, 688 N.E.2d 308 (1997) (supervisory order), had been decided prior to the supreme court\u2019s ruling in Linder. In Moore, the defendant filed a postplea motion in accordance with the version of Rule 604 then in effect (145 Ill. 2d R. 604(d)), but he did not address the $5-per-day statutory credit in his motion. Guerrero, 311 Ill. App. 3d at 970, 725 N.E.2d at 784, citing Moore, 289 Ill. App. 3d at 362-65, 681 N.E.2d at 1092-94. The Moore court found the issue of statutory credit waived by the defendant\u2019s failure to raise it in his postplea motion, and the supreme court vacated that portion of the decision. Guerrero, 311 Ill. App. 3d at 970, 725 N.E.2d at 784. The Guerrero court stated, \u201cAlthough that order was nonprecedential and supervisory in nature, we decline the State\u2019s invitation to revisit that path premised on Linder.\u201d Guerrero, 311 Ill. App. 3d at 970, 725 N.E.2d at 784.\nWe find the defendant\u2019s reliance on Guerrero misplaced for two reasons. First, the decision relies on a nonprecedential supervisory order that dealt with general waiver principles rather than the motion requirements of Rule 604. Thus, we do not find the case persuasive. Second, Guerrero, like Green, did not involve a challenge to the sentence itself as the case at bar does. The court expressly noted the relevance of this distinction, stating: \u201cDefendant is not challenging the propriety or conditions of his conviction or underlying sentence. He is merely asking that the court grant him a statutory credit to which he is entitled against a properly imposed fine.\u201d Guerrero, 311 Ill. App. 3d at 971, 725 N.E.2d at 785. This distinction is logical. While a negotiated guilty plea constitutes an agreement to accept a sentence within the agreed-upon range, it does not constitute an agreement to waive a statutory $5-per-day credit. The rationale of Linder is not implicated when the defendant appeals a tangential issue without challenging his sentence itself. Thus, Guerrero is not analogous to the instant case.\nFinally, the defendant cites a supervisory order overturning the Fourth District\u2019s decision in Harden, 321 Ill. App. 3d 203, 747 N.E.2d 1095, vacated, 195 Ill. 2d 562, 757 N.E.2d 442 (2001) (supervisory order). The supervisory order vacated the Harden decision and remanded the case to the trial court with directions to allow the defendant to withdraw his guilty plea. The defendant here concedes that the supervisory order is nonprecedential, but he argues that it demonstrates the limits on applying Linder. Although the very nature of a supervisory order precludes us from giving any credence to this contention, we note that the context in which the supreme court filed the order in Harden illustrates the fallacy of the defendant\u2019s argument. We also note that, although the defendant does not cite them, there are published decisions that reach the same result. We will therefore discuss the defendant\u2019s argument.\nThe defendant in Harden pled guilty to a charge of possession with intent to deliver cocaine in exchange for the State\u2019s agreement to recommend a 20-year sentence cap. Harden, 321 Ill. App. 3d at 204-05, 747 N.E.2d at 1096-97. He filed a motion to reconsider his sentence but did not file a motion to withdraw his guilty plea. Harden, 321 Ill. App. 3d at 205, 747 N.E.2d at 1097.\nAt the time the defendant in Harden pled guilty, Rule 604 did not contain the relevant language; it provided only that no appeal could be taken from a judgment entered on a guilty plea unless the defendant timely filed a motion to withdraw his plea or a motion to reconsider the sentence. The rule did not distinguish between open and negotiated pleas. Harden, 321 Ill. App. 3d at 207, 747 N.E.2d at 1099, citing 145 Ill. 2d R. 604(d). Rule 605(b), which contains the admonitions a court is required to give a defendant pleading guilty, likewise did not reflect the distinction between open and negotiated pleas. Harden, 321 Ill. App. 3d at 207, 747 N.E.2d at 1098-99, citing 145 Ill. 2d R. 605(b). However, the supreme court, in People v. Evans, 174 Ill. 2d 320, 673 N.E.2d 244 (1996), had drawn that distinction. Evans held that a defendant who wishes to challenge a sentence imposed pursuant to a negotiated plea agreement that included a specific sentence must first withdraw his guilty plea. Linder, 186 Ill. 2d at 72, 708 N.E.2d at 1171-72. Linder expanded this holding to include a defendant who pleads guilty in exchange for the State\u2019s agreement to recommend a cap, rather than a specific sentence. Linder, 186 Ill. 2d at 74, 708 N.E.2d at 1172. Rules 604(d) and 605(b) were subsequently amended to reflect these rulings. See Green, 375 Ill. App. 3d at 1052, 874 N.E.2d at 938; Harden, 321 Ill. App. 3d at 208, 747 N.E.2d at 1099.\nThe defendant in Harden conceded that the rule of Linder and Evans was applicable, but he argued that the case should be remanded to allow him to withdraw his guilty plea because the trial court had not admonished him of this requirement. Harden, 321 Ill. App. 3d at 206, 747 N.E.2d at 1097-98. In rejecting this contention, the court acknowledged that \u201ca necessary antecedent to requiring strict compliance by a defendant with Rule 604(d) is that the defendant be given the admonitions contained in Rule 605(b).\u201d Harden, 321 Ill. App. 3d at 207-08, 747 N.E.2d at 1099, citing People v. Jamison, 181 Ill. 2d 24, 29, 690 N.E.2d 995, 998 (1998). The court noted that Rule 605 was subsequently amended to provide \u201caccurate admonitions of a defendant\u2019s appeal rights following a negotiated plea of guilty\u201d (Harden, 321 Ill. App. 3d at 208, 747 N.E.2d at 1099), but it found that a remand was not necessary for two reasons. First, the trial court had \u201cfully complied with the directives of Rule 605(b) as then written.\u201d Harden, 321 Ill. App. 3d at 208, 747 N.E.2d at 1099. Second, the defendant in Harden pled guilty two years after Evans was decided; thus, the court reasoned, \u201cthe trial court and all parties were aware of the Evans decision.\u201d Harden, 321 Ill. App. 3d at 209, 747 N.E.2d at 1100.\nAs previously mentioned, the supreme court vacated this decision in a nonprecedential supervisory order. Harden, 195 Ill. 2d 562, 757 N.E.2d 442 (supervisory order). The court provided the same relief \u2014 a remand to the trial court to allow a defendant an opportunity to move to withdraw the guilty plea \u2014 as in other cases involving similar procedural histories. E.g., Diaz, 192 Ill. 2d at 227-28, 735 N.E.2d at 613 (remanding to allow a defendant sentenced two years before Evans was decided to file the proper motion); People v. Clark, 183 Ill. 2d 261, 270-71, 700 N.E.2d 1039, 1044 (1998) (same). Thus, although the Harden case does not provide support for the defendant\u2019s position, he is correct in his contention that a remand to allow compliance with the motion requirements is proper under certain circumstances. See Flowers, 208 Ill. 2d at 301, 802 N.E.2d at 1180-81 (explaining that where a trial court fails to give the admonitions now required by Rule 605(b), \u201cthe appropriate course is to remand the cause to the trial court for strict compliance with Rule 604(d)\u201d).\nThe problem for the defendant is that this appeal does not involve those circumstances. The defendant here pled guilty in December 2007 and was sentenced in January 2008. These events took place 11 years after Evans was decided, 8 years after Linder was decided, and 7 years after Rules 604(d) and 605(b) were amended to reflect the Evans and Linder decisions. More importantly, the record reflects that the trial court gave the defendant the proper admonitions, and he does not contend otherwise. We conclude that a remand to allow the defendant to comply with the motion requirements is not warranted.\nWe note that the defendant also argues that a remand is necessary to allow his counsel to comply with the certification requirement of Rule 604. In light of our determination that Linder requires us to dismiss his appeal, we need not reach that issue.\nFor the foregoing reasons, we dismiss the defendant\u2019s appeal.\nAppeal dismissed.\nWELCH and GOLDENHERSH, JJ., concur.", "type": "majority", "author": "JUSTICE CHAPMAN" } ], "attorneys": [ "Michael J. Pelletier, Johannah B. Weber, and Edwin J. Anderson, all of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Randall Rodewald, State\u2019s Attorney, of Chester (Patrick Delfino, Stephen E. Norris, and Patrick D. Daly, all 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. DANNY A. DeROSA, Defendant-Appellant.\nFifth District\nNo. 5\u201408\u20140069\nOpinion filed November 25, 2009.\nMichael J. Pelletier, Johannah B. Weber, and Edwin J. Anderson, all of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nRandall Rodewald, State\u2019s Attorney, of Chester (Patrick Delfino, Stephen E. Norris, and Patrick D. Daly, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0769-01", "first_page_order": 785, "last_page_order": 796 }