People v. Merriweather

2021 IL App (2d) 200379

193 N.E.3d 364

456 Ill.Dec. 396

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Robert E. MERRIWEATHER, Defendant-Appellant.

No. 2-20-0379

Appellate Court of Illinois, Second District.

Opinion filed December 1, 2021

James E. Chadd, Thomas A. Lilien, and Josette Skelnik, of State Appellate Defender's Office, of Elgin, for appellant.

Jamie L. Mosser, State's Attorney, of St. Charles (Patrick Delfino, Edward R. Psenicka, and Victoria E. Jozef, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Robert E. Merriweather, entered a nonnegotiated guilty plea to a single count of unlawful possession of a controlled substance with intent to deliver 1 gram or more but less than 15 grams of heroin ( 720 ILCS 570/401(c)(1) (West 2018)). The trial court agreed with the State that the court should treat defendant's federal convictions as equivalent to at least Class 2 felonies, and thus as predicate felonies for Class X sentencing. In that light, the court imposed a sentence of 8½ years’ imprisonment. Defense counsel timely filed a motion to reconsider the sentence but did not file a certificate under Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). The court granted the motion in part, reducing the sentence to eight years. In this appeal, defendant seeks a remand for compliance with Rule 604(d). The State agrees that such a remand is required. However, defendant also asks us to (1) instruct the trial court that he is not subject to Class X sentencing and (2) remand the cause without vacating his eight-year sentence, to ensure that he is not penalized for enforcing his rights under Rule 604(d). We conclude that this appeal is limited to ensuring compliance with Rule 604(d), and thus we decline to address the propriety of the Class X sentencing. However, we conclude that, consistent with our holding in People v. Strawder , 374 Ill. App. 3d 338, 312 Ill.Dec. 833, 871 N.E.2d 233 (2007), we need not vacate the sentencing reduction to give defendant appropriate relief. Therefore, we leave defendant's sentence in place while remanding the cause for compliance with Rule 604(d).

¶ 2 I. BACKGROUND

¶ 3 In March 2019, a grand jury returned a two-count indictment against defendant. Count I charged defendant with possession with intent to deliver 1 or more but less than 15 grams of heroin, a Class 1 felony. Count II charged him with possession of heroin ( 720 ILCS 570/402(c) (West 2018)), a Class 4 felony. Additionally, the indictment alleged that defendant was subject to Class X sentencing based on his prior criminal history.

¶ 4 On January 13, 2020, the parties had a conference with the trial court pursuant to Illinois Supreme Court Rule 402(d) (eff. July 1, 2012). Following the conference, the State announced that the parties had reached an agreement under which defendant would plead guilty to count I of the indictment in exchange for a sentence of eight years’ imprisonment followed by a three-year term of mandatory supervised release. The State asserted that defendant was subject to mandatory Class X sentencing ( 730 ILCS 5/5-4.5-95(b) (West 2020)) based on a 1983 Indiana burglary conviction and two 2003 federal convictions of drug distribution. The State suggested, but was not certain, that the federal convictions were equivalent to Class 1 felonies under Illinois law. The trial court continued the matter for the State to do further research on the issue. When the court reconvened, the parties announced that they no longer had a plea agreement and that defendant would enter an open plea to count I. After appropriately admonishing defendant, the court accepted his plea of guilty.

¶ 5 At the sentencing hearing, the State clarified defendant's criminal history to support its claim that he was subject to mandatory Class X sentencing. The State noted that, in 2003, defendant had pled guilty to two counts of use of a communication facility to distribute a cocaine base (facilitation of distribution) ( 21 U.S.C. § 843(b) (2000) ). The assistant United States attorney who had prosecuted defendant's federal case testified to explain the federal convictions. He agreed that, to support a conviction of facilitation of distribution, "there had to be some showing that there was some narcotics either distributed and/or possessed with the intent to distribute."

¶ 6 The trial court found that defendant was eligible for mandatory Class X sentencing based on the Indiana burglary conviction and the federal convictions of facilitation of distribution. The court agreed with the State that facilitation of distribution contained elements similar to unlawful delivery of a controlled substance or possession with intent to deliver a controlled substance, which were at least Class 2 felonies under Illinois law. Accordingly, the court sentenced defendant to 8½ years’ imprisonment.

¶ 7 Defendant moved for reconsideration of his sentence, asserting that (1) the court erred in deeming his federal convictions as predicate felonies for mandatory Class X sentencing, (2) the court erred in imposing a sentence six months longer than the recommended sentence it found acceptable at the Rule 402 conference (see Ill. S. Ct. R. 402 (eff. July 1, 2012)), and (3) his sentence was excessive under the relevant factors. Counsel did not file a Rule 604(d) certificate. The court rejected defendant's argument that Class X sentencing was inappropriate, but it nevertheless reduced defendant's sentence to eight years’ imprisonment. Defendant timely appealed.

¶ 8 II. ANALYSIS

¶ 9 On appeal, defendant contends that, because defense counsel failed to file a Rule 604(d) certificate in conjunction with the motion to reconsider the sentence, we must remand the matter for new postplea proceedings. He further asks that we decline to vacate the partial grant of his motion to reconsider the sentence, so that the sentence reduction will stand unless, upon remand, he pursues another motion to reduce the sentence or a motion to withdraw the plea. Thus, he contends that his sentence reduction should be vacated only in the trial court and then only if he seeks further relief. He cites Strawder as authority for our "leav[ing] intact the trial court's ruling on his motion to reconsider sentence, allowing [him] to determine on remand what motion or motions he should file." He says:

"It makes sense, when a post-plea motion filed by a defendant has been denied ***[,] for the reviewing court to vacate the denial of relief and give the defendant the opportunity to relitigate that motion. The same considerations are not at play, however, where a defendant has obtained relief on a post-plea motion. Here, [the court] granted [defendant] some sentencing relief at the post-plea hearing, although perhaps not to the extent [he] hoped. As a result, he may wish to re-litigate the sentencing issues on remand, in which event it would then be appropriate for the judge to vacate her earlier ruling on his motion. [Defendant] may also decide, however, that he does not want to relitigate that motion and instead wants to file only a motion to withdraw his plea, standing on the sentencing relief he was granted. Since which option or options to exercise are ‘entirely up to him,’ it would be inappropriate to vacate on appeal a ruling that was favorable to him, thereby not only depriving him of the benefit of that ruling, but forcing him to relitigate a motion on which he is satisfied with the result."

¶ 10 Defendant further argues that the trial court erred in deeming his federal convictions equivalent to Class 2 or greater felonies. He asks that, in remanding the cause, we instruct the court that those prior convictions are not a basis for Class X sentencing.

¶ 11 The State, in response, agrees that the cause must be remanded for Rule 604(d) compliance. Next, citing People v. Herrera , 2012 IL App (2d) 110009, ¶ 15, 361 Ill.Dec. 273, 970 N.E.2d 1219, it contends that, because the cause must be remanded for such compliance, we should not decide whether defendant was subject to mandatory Class X sentencing. Alternatively, it argues that the trial court correctly determined that Class X sentencing was mandatory. Finally, the State argues that Strawder is distinguishable because, though in that case we left the defendant's sentence reduction in place, we reversed—for Rule 604(d) noncompliance—the denial of his motion to withdraw his plea. See Strawder , 374 Ill. App. 3d at 340-41, 312 Ill.Dec. 833, 871 N.E.2d 233. By contrast, the State notes, defendant would have us enforce Rule 604(d) here while leaving the underlying judgment entirely intact. The State claims that such relief would be illogical, citing People v. Bernard , 2014 IL App (2d) 130924, ¶ 10, 390 Ill.Dec. 25, 28 N.E.3d 194.

¶ 12 In reply, defendant argues that the vacatur of his sentence reduction would penalize him for his attorney's error in failing to comply with Rule 604(d). Defendant notes that he might choose on remand to file only a motion to withdraw the plea and that such motion might not succeed, which would leave his original sentence in place. He further argues that Bernard is distinguishable based on the factual context of its holding.

¶ 13 Rule 604(d) states, in relevant part:

"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. ***

***

*** The defendant's attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by phone, mail, electronic means or in person to ascertain defendant's contentions of error in the sentence and the entry of the plea of guilty, has examined the trial court file and both the report of proceedings of the plea of guilty and the report of proceedings

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