Opinion
No. 2-12-0481
06-20-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER C. MAUTER, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Du Page County.
No. 10-CF-613
Honorable Robert G. Kleeman, Judge, Presiding.
PRESIDING JUSTICE BURKE delivered the judgment of the court.
Justices McLaren and Hudson concurred in the judgment.
ORDER
¶ 1 Held: (1) Regardless of whether defense counsel's Rule 604(d) certificate was invalid for stating that counsel had consulted with defendant to ascertain his contentions of error only as to his sentence, defendant was not entitled to a second remand for compliance where he indicated on the first remand that he did not wish to persist with his contentions as to his nonnegotiated plea; (2) we vacated defendant's fines for the drug court/mental-health court and the children's advocacy center, as those fines were not authorized when he committed his offenses; we vacated defendant's duplicative court-automation, document-storage, circuit-clerk, and court-security fees; and we reduced defendant's sexual-assault fines to $100 each, the amount in effect when he committed his offenses, and we granted full credit against those fines, under the law in effect when he committed his offenses, to reflect the 576 days he spent in presentencing custody. ¶ 2 Defendant, Peter C. Mauter, entered a nonnegotiated guilty plea to three counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(b)(2) (West 2004)) and was sentenced to consecutive 15-year prison terms and ordered to pay various fines and fees. After the trial court denied his motion to reconsider the sentence, he appealed. This court remanded the cause because defendant's attorney had failed to file a certificate of compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006). On remand, defendant obtained new counsel, who filed separate motions to withdraw the guilty plea and to reconsider the sentences, accompanied by a single Rule 604(d) certificate. At a hearing, defendant abandoned the motion to withdraw the plea. The trial court heard and denied the motion to reconsider the sentence. Defendant appeals, arguing that (1) the order denying his motion must be vacated, and the cause must be remanded, because counsel's certificate did not comply strictly with Rule 604(d); and (2) the trial court erred in imposing various fines and fees. We affirm as modified in part and vacated in part. ¶ 3 On March 10, 2010, defendant was indicted on six counts of predatory criminal sexual assault of a child and two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2004)), based on acts he allegedly performed between 2000 and 2004. On August 17, 2010, he pleaded guilty to three counts of predatory criminal sexual assault of a child, and the State dismissed the other charges. There was no agreement on sentencing. Twice before sentencing, defendant moved to withdraw his guilty plea but then withdrew the motion. He filed a third such motion; on July 7, 2011, the trial court denied the motion. On September 7, 2011, the court sentenced defendant to consecutive 15-year prison terms and imposed a number of fines and fees, which we shall detail (insofar as necessary) in discussing defendant's second claim of error. The fines and fees totaled $1,895 and were allocated as follows: (1) $765 on count I; (2) $565 on count II; and (3) $565 on count III. Except for a $200 DNA analysis fee (see 730 ILCS 5/5-4-3(j), (k) (West 2010)) imposed on count I, the same fines and fees were allocated to each conviction. ¶ 4 On September 28, 2011, defendant moved to reconsider his sentence. His attorney did not file a Rule 604(d) certificate. That day, the trial court denied the motion but granted defendant a credit of $2,730 against "fines and assessments levied in this cause," representing the statutorily-required $5 per each of the 576 days of presentencing custody. See 725 ILCS 5/110-14(a) (West 2010). ¶ 5 Defendant appealed. We held that a remand was required because defendant's attorney had failed to file a Rule 604(d) certificate. We vacated the order denying the postjudgment motion and remanded the cause, directing the trial court to allow (1) the filing of a Rule 604(d) certificate; (2) the opportunity for defendant to file a new postjudgment motion against the plea, the sentence, or both, if counsel concluded that a new motion was necessary; and (3) a new motion hearing. People v. Mauter, 2012 IL App (2d) 110973-U. ¶ 6 On April 20, 2012, defendant, by attorney Brett W. Cummins, filed (1) a motion to withdraw the guilty plea; (2) a motion to reconsider the sentence; and (3) a Rule 604(d) certificate. The certificate stated:
"NOW COMES *** BRETT W. CUMMINS, and pursuant to Defendant's Motion to Reconsider Sentence, certifies as follows:
1. [Cummins] has consulted with the Defendant in person to ascertain his contentions of error in the imposition of the sentence;
2. [Cummins] has examined the trial court file and the transcripts of the plea of guilty;
3. [Cummins] has made such amendments to the Motion to Reconsider Sentence as
are necessary for an adequate presentation of any defects and claims of error in those proceedings; and
4. The Defendant wishes this Honorable Court to reconsider the sentence imposed."
On April 26, 2012, the trial court held a hearing. The judge noted that defendant had filed two motions. Cummins stated:
"MR. CUMMINS: Judge, I did—prior to filing those motions, I did confer with Mr. Mauter in person and over and over telephone [sic].Cummins agreed with the judge that the April 20, 2012, motion to withdraw the guilty plea did not allege anything not raised in "the previous motion." After ascertaining from defendant that everything Cummins had said was accurate, the judge stated, "I'm essentially going to grant the defense request to withdraw that motion." The parties then argued defendant's motion to reconsider his sentence. The trial court denied the motion, and defendant timely appealed. ¶ 7 On appeal, defendant contends first that the order denying his postjudgment motion must be vacated, and the cause must be remanded again, because Cummins' Rule 604(d) certificate did not strictly comply with the rule. As pertinent here, Rule 604(d) states that counsel "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's 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." Ill. S. Ct. R. 604(d) (eff. July 1, 2006). Defendant contends that Cummins' certificate was fatally deficient because it failed to state that Cummins had consulted with defendant to ascertain his contentions of error in the entry of the plea of guilty. Relying on People v. Dryden, 2012 IL App (2d) 110646, defendant contends that, at least when counsel moves both to withdraw the guilty plea and to reconsider the sentence, his Rule 604(d) certificate must state that he has ascertained the defendant's contentions of error in regard to both the plea and the sentence. ¶ 8 The State responds that Dryden is distinguishable because here defendant withdrew his motion to withdraw the guilty plea and proceeded only on the motion to reconsider the sentence. The State reasons that Rule 604(d), which uses the disjunctive "or," did not require Cummins to consult with defendant about error in both the plea and the sentence, at least insofar as defendant ultimately decided not to challenge the plea. The State also contends that, in any event, People v. Shirley, 181 Ill. 2d 359 (1998), bars a second remand. We agree with the State that Shirley is persuasive, and we reject defendant's contention of error, relying solely on that ground. ¶ 9 In Shirley, the supreme court addressed the application of Rule 604(d)'s certificate requirement in the context of a second postjudgment proceeding after an initial remand based on trial counsel's initial failure to comply strictly with the certificate requirement. The court rejected the premise that the rule of strict compliance "must be applied so mechanically as to require Illinois courts to grant multiple remands and new hearings following the initial remand hearing." Id. at 369. Instead, if the defendant has received a full and fair opportunity to raise his claim of error in the entry of the plea or the sentence, or both, another remand is not required, absent a good reason to do so. See id. Thus, the court rejected the defendant's request for a second remand on the sole basis that his trial counsel had filed the certificate late. The court examined the record and concluded that, because there would be no point in providing the defendant with yet a third opportunity to argue that his sentences were excessive (the trial court having rejected that contention twice already), another remand would be "an empty and wasteful formality." Id. at 370. ¶ 10 The reasoning of Shirley applies here. In the proceedings before remand, defendant moved to withdraw his guilty plea; the trial court heard the motion, concluded that it lacked merit, and denied it. On remand, defendant filed a motion to withdraw the guilty plea, but he admitted that it raised the exact same allegations as had the original motion. At the hearing on the postjudgment motions, neither defendant nor Cummins expressed interest in persisting with those allegations. Defendant now raises nothing that even suggests that a second remand would be anything other than an empty formality. We conclude that, regardless of whether Cummins' certificate was technically perfect, a second remand is not in order. Therefore, we reject defendant's first claim of error. ¶ 11 We turn to the second issue on appeal, the propriety of various charges that the trial court assessed against defendant, keeping in mind that the propriety of a given assessment raises a question of law that we review de novo. People v. Martino, 2012 IL App (2d) 101244, ¶ 26. ¶ 12 Defendant contends first that the trial court erred in assessing a drug-court-mental health court fee (see 55 ILCS 5/5-1101(d-5) (West 2010)) of $10 on each charge, for a total of $30. Defendant observes that the fee is actually a criminal penalty (People v. Curtis, 407 Ill. App. 3d 1042, 1052 (2011)); that, although the statute in effect at the time of his sentencing authorized this fee, he had the right to elect to be sentenced under the penal statutes in effect at the time of his offenses (People v. Horrell, 235 Ill. 2d 235, 241-42 (2009)); and that, at the time of his offenses, the fee in question was not authorized (see Pub. Act 93-992, §5 (eff. Jan. 1, 2005)). Defendant recognizes that, at the trial level, he did not raise this claim of error, but he notes that the trial court denied him due process by failing to advise him that he had the right to be sentenced under the statutes in effect at the time of his offenses (see People v. Gancarz, 228 Ill. 2d 312, 317 (2008)) and that his attorney's failure to challenge the improper assessment amounted to ineffective assistance (see Strickland v. Washington, 466 U.S. 668, 694 (1984)). Moreover, the State confesses error. We agree with the parties, and we vacate the drug-court-mental-health-court fees. ¶ 13 Defendant contends next that the trial court erred in assessing a Children's Advocacy Center assessment (see 55 ILCS 5/5-1101(f-5) (West 2010)) of $30 on each count, for a total of $90. Defendant notes that the assessment is a criminal penalty (Curtis, 407 Ill. App. 3d at 1052) and was unauthorized when he committed his offenses (see Pub. Act. 95-103, §5 (eff. Jan. 1, 2008)). The State confesses error. We agree with the parties. Therefore, we vacate the Children's Advocacy Center fees. ¶ 14 Defendant contends next that certain fees that are not criminal penalties must be reduced because they were imposed on all three counts but may be imposed only once here. These assessments are (1) a court-automation fee (see 705 ILCS 105/27.3a (1) (West 2010)) of $15 on each count; (2) a document-storage fee (see 705 ILCS 105/27.3(c)(1) (West 2010)) of $15 on each count; (3) a court-security fee (see 55 ILCS 5/5-1103 (West 2010)) of $25 on each count; and (4) a clerk's fee (see 705 ILCS 105/27.2(w)(A) (West 2010)) of $125 on each count. Defendant observes that, in Martino, 2012 IL App (2d) 111244, we held that the statutes (and the corresponding Du Page County ordinances) that authorize these fees allow a trial court to impose only one of each in a case, even when the defendant has been convicted of more than one offense. Id. ¶¶ 30 (court-automation and document-storage fees), 34-35 (clerk's fee), 37-38 (court-security fee). The State requests that we reconsider our holding in Martino as it applies to all but the last of the four fees; in the interest of stare decisis, we decline to do so. Therefore, we vacate these fees and reimpose (1) a single court-automation fee of $15; (2) a single document-storage fee of $15; (3) a single court-security fee of $25; and (4) a single clerk's fee of $125. ¶ 15 Finally, defendant contends that the sexual-assault fines (730 ILCS 5/5-9-1.7(a)(1), (b)(1) (West 2010)) of $200 on each count must be reduced to $100 apiece, per the statute that was in effect when defendant committed his offenses (see 730 ILCS 5/5-9-1.7(b)(1) (West 2004); see also Pub. Act 93-0810, §5 (eff. Jan. 1, 2005)). The State confesses error. We agree with the parties. Therefore, we reduce each of the three sexual-assault fines to $100. We note, however, that the sexual-assault fines are fully offset by the credit of $5 per day of presentencing custody, as provided by the statute that was in effect when defendant committed his offenses (see 725 ILCS 5/110-14(a) (West 2004)), even though the law was later amended to exclude sexual-assault fines from the credit (see 725 ILCS 5/110-14(b) (West 2010)). ¶ 16 We affirm as modified in part and vacate in part the judgment of the circuit court of Du Page County as modified. ¶ 17 Affirmed as modified in part and vacated in part.
This morning, he informed me we [sic] we would not like to readdress his motion to withdraw plea of guilty.
We previously had a hearing on that matter back on July 7th, 2011, where your Honor denied that motion to withdraw his plea of guilty.
He would just like to let that ruling stand and not readdress that issue because it alleges the same exact allegations."
In connection with his argument, defendant states in passing that, when he withdrew his motion to withdraw the guilty plea, the trial court should have admonished him that he was forfeiting any arguments on appeal in relation to the entry of the plea. However, the trial court had, on sentencing defendant, already provided the equivalent admonishment under Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001). Defendant cites no authority supporting the proposition that, under the circumstances here, the trial court had to reiterate this admonishment.
As defendant notes, the State's brief contains one section urging us to affirm the threefold imposition of the first three fees—followed immediately by a section agreeing with defendant that each of these fees may be imposed only once. The discrepancy in the State's brief does not, of course, affect our decision on this issue.
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