FILED March 13, 2023 NO. 4-22-0400 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Boone County ALVIN BROWN, ) No. 17CF202 Defendant-Appellant. ) ) Honorable ) Robert Tobin, ) Judge Presiding. ______________________________________________________________________________

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Doherty and Lannerd concurred in the judgment and opinion.

OPINION

¶1 Defendant, Alvin Brown, pleaded guilty to driving while license revoked (DWLR)

(625 ILCS 5/6-303(a), (d-5) (West 2016)). Based on his criminal history, the trial court sentenced

him as a Class X offender to nine years in prison under section 5-4.5-95(b) of the Unified Code of

Corrections (Code) (730 ILCS 5/5-4.5-95(b) (West 2018)). During postplea proceedings,

defendant moved for reconsideration of his sentence, which the court denied. Defendant appeals,

arguing (1) he is entitled to a remand for resentencing because he was not given the opportunity

“to elect the benefit of” amendments to section 5-4.5-95(b), which made the statute inapplicable

to his case and took effect after his sentencing but before the court ruled on his postplea motion

and (2) the record refutes his postplea counsel’s certification of compliance with the requirements

of Illinois Supreme Court Rule 604(d) (eff. July 1, 2017), entitling him to further postplea proceedings. We affirm.

¶2 I. BACKGROUND

¶3 In July 2017, a grand jury indicted defendant on one count of DWLR (625 ILCS

5/6-303(a), (d-5) (West 2016)). The offense was charged as a Class 2 felony and based on

allegations that, on or about June 3, 2017, defendant drove a motor vehicle at a time when (1) his

driving privileges were revoked for committing a driving under the influence (DUI) offense and

(2) he had 14 prior violations for DWLR.

¶4 In October 2019, defendant entered an open plea of guilty to the charged offense.

At his guilty plea hearing, the trial court admonished defendant regarding the rights he was giving

up and the consequences he faced by pleading guilty. Such consequences included defendant’s

potential eligibility for sentencing as a Class X offender—with a sentencing range of 6 to 30 years

in prison—based upon his criminal history. Defendant asserted that he understood the court’s

admonishments and persisted in his plea. According to the State’s factual basis, on June 3, 2017,

a Boone County Sheriff’s deputy heard a call about a retail theft “where the offender, a black

female, left in a red Ford truck being driven by a black male.” The deputy subsequently “saw that

vehicle *** and stopped it.” The driver identified himself as defendant. The deputy “had dispatch

run [defendant’s] information” and learned that defendant’s driver’s license was revoked for a DUI

conviction and that defendant had “at least 14 prior violations” for DWLR. Ultimately, the court

accepted defendant’s guilty plea, finding defendant understood his rights and that his plea was

voluntary.

¶5 In November 2019, the trial court conducted defendant’s sentencing hearing. At the

time of sentencing, section 5-4.5-95(b) of the Code (730 ILCS 5/5-4.5-95(b) (West 2018))

provided as follows:

-2- “When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2

felony *** after having twice been convicted in any state or federal court of an

offense that contains the same elements as an offense now (the date the Class 1 or

Class 2 felony was committed) classified in Illinois as a Class 2 or greater Class

felony, *** and those charges are separately brought and tried and arise out of

different series of acts, that defendant shall be sentenced as a Class X offender. This

subsection does not apply unless:

(1) the first felony was committed after February 1, 1978 ***;

(2) the second felony was committed after conviction on the first; and

(3) the third felony was committed after conviction on the second.”

¶6 Defendant’s presentence investigation report (PSI) showed defendant was 64 years

old and had a lengthy criminal history that dated back to 1972. His criminal history included

convictions for burglary, theft, battery, disorderly conduct, rape, robbery, forgery, DUI, and

multiple convictions for driving with his license suspended or revoked. Several times, defendant

had been sentenced to terms of imprisonment in the Illinois Department of Corrections (DOC). In

2009, he was sentenced to seven years in prison for the offenses of forgery and DWLR. In March

2017, he was arrested for DWLR in Winnebago County case No. 17-CF-607, and, in 2019,

sentenced to six years in prison for that offense. While case No. 17-CF-607 was pending, defendant

committed the underlying offense.

¶7 In presenting evidence to the trial court, the State submitted a certified copy of

defendant’s driving abstract, which showed his driver’s license was revoked in July 1997 for a

DUI offense and that he subsequently had 14 DWLR violations. To support defendant’s eligibility

for Class X sentencing, the State presented exhibits showing that defendant had prior felony

-3- convictions for (1) burglary, a Class 2 offense committed in September 1978, and (2) rape, a Class

X offense committed in July 1981. Finally, the State also submitted an exhibit containing

information pertaining to Winnebago County case No. 17-CF-607, which indicated defendant was

on bond in that case at the time he committed the underlying offense. Defendant’s evidence

included his own testimony and the testimony of several of his family members.

¶8 The State recommended that the trial court sentence defendant to a 10-year term of

imprisonment, noting defendant’s criminal history, the need for deterrence, and that defendant

committed the underlying offense “while out on bond on another felony.” Defendant’s counsel

asked the court to impose a six-year prison sentence based on defendant’s history of drug addiction

and his family ties. The record reflects counsel also advocated for sentencing defendant as a Class

2 offender, arguing that imposition of a Class X sentence would result in an improper “double

enhancement.” The court rejected defense counsel’s argument, stating Class X sentencing applied.

It sentenced defendant to nine years in prison and ordered his sentence to be served consecutively

with the sentence imposed in Winnebago County case No. 17-CF-607.

¶9 In December 2019, defendant pro se filed motions to withdraw his guilty plea and

vacate his sentence, reduce his sentence, and for the appointment of counsel. In connection with

his motion to withdraw, defendant alleged he was forced to plead guilty because his attorney told

him he would be given a 20-year prison sentence if he elected to go to trial and lost. Defendant’s

motion for a reduction of his sentence did not set forth any specific allegations. The same month,

the trial court appointed new counsel, attorney Russell Luchtenberg, to represent defendant during

his postplea proceedings.

¶ 10 In July 2020, Luchtenberg filed a certificate of compliance pursuant to Illinois

Supreme Court Rule 604(d) (eff. July 1, 2017), representing that he had consulted with defendant

-4- by phone “to ascertain defendant’s contentions of error in the sentence,” “examined the trial court

file and *** report of proceedings in the sentencing hearing,” and elected not to file any amended

motion.

¶ 11 The same date the certificate was filed, the trial court conducted a hearing on

defendant’s postplea motions. Luchtenberg asserted he had spoken with defendant and found no

basis upon which to amend defendant’s pleadings. He also indicated defendant wanted to pursue

only his motion to reduce his sentence and not his motion to withdraw his guilty plea and vacate

his sentence. Upon inquiry by the court, defendant acknowledged that he no longer wanted to

withdraw his guilty plea. Regarding defendant’s sentence, Luchtenberg stated it was defendant’s

belief that there were “improper calculations made” regarding his eligibility for Class X

sentencing, that his nine-year sentence was excessive, and that he should have been sentenced as

a Class 2 offender. Luchtenberg also asked the court to “take a look at the sentencing again and

*** reconsider” defendant’s sentence. He noted defendant was “not a young man” and “currently

going to be incarcerated for six years” in connection with his previous DWLR case. The court

denied defendant’s motion, finding he had been eligible for Class X sentencing based on his

criminal history and that a nine-year sentence “was appropriate.”

¶ 12 Defendant appealed the trial court’s denial of his postplea motion. On appeal, he

filed an unopposed motion for summary remand, alleging Luchtenberg failed to comply with Rule

604(d) by filing a deficient certificate of compliance. In particular, he noted that Luchtenberg failed

to “certify that he consulted with [defendant] about both his contentions of error in the guilty plea

and the sentencing hearing.” Defendant requested the matter be remanded for compliance with

Rule 604(d) and further postplea proceedings.

¶ 13 In December 2020, the appellate court granted defendant’s motion for summary

-5- remand. In doing so, it vacated the trial court’s denial of defendant’s postplea motion and

remanded the matter to the trial court for the filing of a valid Rule 604(d) certificate, the

opportunity for defendant to file new postplea motions, and a new postplea motion hearing. People

v. Brown, No. 2-20-0432 (Dec. 4, 2020) (unpublished summary order under Illinois Supreme Court

Rule 23(c)) (granting defendant’s unopposed motion for summary remand).

¶ 14 On remand, the parties first appeared before the trial court for a status hearing in

January 2021. At the hearing, the court inquired whether Luchtenberg had communicated with

defendant regarding whether he “would like to have a new hearing on the motion to withdraw.”

Luchtenberg represented that he and defendant “did have a discussion regarding that” and that he

believed defendant was “ready to just have [Luchtenberg] prepare another [Rule] 604(d)

[certificate].” Upon inquiry by the court, defendant stated he was “okay with [Luchtenberg] doing

the certificate, [and] sending it back to the appeal court.” The court then stated it would set no

further court dates and indicated appellate proceedings could resume once Luchtenberg filed a

certificate in compliance with Rule 604(d).

¶ 15 In February 2021, Luchtenberg filed a new Rule 604(d) certificate. He asserted as

follows:

“1. I have consulted with the Defendant in person, by mail, by phone or by

electronic means to ascertain the defendant’s contentions of error in the entry of the

plea of guilty and in the sentence;

2. I have examined the trial court file and report of proceedings of the guilty

plea and the report of proceedings in the sentencing hearing; and

3. I have made any amendments to the motion necessary for the adequate

presentation of any defects in those proceedings.”

-6- ¶ 16 Effective July 1, 2021, the legislature amended section 5-4.5-95(b) (see Pub. Act

101-652, § 10-281 (eff. July 1, 2021) (amending 730 ILCS 5/5-4.5-95(b))). The amended version

of the statute provided that for Class X sentencing to apply, a defendant had to be convicted of “a

Class 1 or Class 2 forcible felony” offense and have prior qualifying convictions that were also

forcible felonies. Id.

¶ 17 In March 2022, the attorneys in defendant’s case appeared before the trial court.

Luchtenberg indicated his intention to file an amended postplea motion that “track[ed]” with

defendant’s previous filings. He also asserted that he needed more time to communicate with

defendant to determine “if we’re going to do the same thing we did before[.]” The court set the

matter for further hearing. The same day, Luchtenberg filed a motion to withdraw guilty plea and

vacate sentence on defendant’s behalf, alleging “defendant did not understand the consequences

or the effect the plea would have at that time.”

¶ 18 In April 2022, the trial court conducted a status hearing at which the attorneys in

the case and defendant appeared. Luchtenberg indicated defendant was not yet ready to proceed

with his motion to withdraw and that they still needed to speak “personally *** about what we’re

doing.”

¶ 19 In May 2022, the trial court conducted a postplea hearing in the matter. Luchtenberg

represented that he had communicated with defendant by telephone and presented a third Rule

604(d) certificate. Similar to his February 2021 certificate, he alleged as follows:

“1. I have consulted with the Defendant in person or by mail to ascertain

the defendant’s contentions of error in the entry of the plea of guilty and in the

sentence;

2. I have examined the trial court file and report of proceedings of the plea

-7- of guilty and the sentencing; and

3. I have made any amendments to the motion necessary for the adequate

presentation of any defects in those proceedings.”

¶ 20 The trial court informed defendant that Luchtenberg’s certificate stated he and

defendant had discussed defendant’s “different options on the motion to withdraw guilty plea.”

The court asked defendant if he thought he had “enough time to speak with [Luchtenberg] about

all those issues” and defendant stated, “Yes.” Luchtenberg then informed the court that defendant

would not be pursuing his motion to withdraw his guilty plea and that “[w]hat we’re doing is going

back to what he had brought up at the past hearing which was the—whether or not the

consequences of the sentence would be reconsidered.” As a basis for reconsideration, Luchtenberg

noted “several things that have gone on within the law,” and stated as follows:

“[O]ne of the things would be the enhancement of his sentence. While it’s not

retroactive based on his record on what he was convicted of, it was enhanced

because of reasons that would not apply today and so we’re asking if the Court just

on the basis of justice would take a look back.”

Luchtenberg also asserted that he was stipulating to the arguments made at defendant’s July 2020

postplea hearing.

¶ 21 The trial court indicated it recognized that Luchtenberg was stipulating to

arguments made at the prior hearing “[w]ith the only difference [being that] the Class X rule has

changed since [that prior hearing].” After the State confirmed that the statutory changes were not

“retroactive,” the court stated it understood and agreed that defendant faced an extended-term

sentence of “3 to 14 either way.” Again, the court denied defendant’s postplea motion, finding the

nine-year sentence it imposed “was appropriate” and “proper,” and “merited” by defendant’s

-8- “continued actions.”

¶ 22 This appeal followed.

¶ 23 II. ANALYSIS

¶ 24 A. Defendant’s Entitlement to Remand for

Resentencing Based on Statutory Sentencing Amendments

¶ 25 On appeal, defendant first argues that his 9-year sentence must be vacated and the

matter remanded “for resentencing in the extended-term Class 2 sentencing range of [3 to 14]

years.” He concedes that at the time of his sentencing in November 2019, he was eligible for

mandatory Class X sentencing pursuant to section 5-4.5-95(b) of the Code (730 ILCS 5/5-4.5-

95(b) (West 2018)). Nevertheless, he notes that before the conclusion of his postplea proceedings

in May 2022, section 5-4.5-95(b) was amended to apply only to forcible felony offenses, rendering

that section inapplicable to his underlying offense (Pub. Act 101-652, § 10-281 (eff. July 1, 2021)

(amending 730 ILCS 5/5-4.5-95(b))) and making him no longer eligible for Class X sentencing.

According to defendant, because the judgment in his case “was not yet final and *** still pending

in the [trial] court” when the amendment took effect, it must be given retroactive application and

he should be given the opportunity to elect sentencing under the new law.

¶ 26 Initially, the State argues defendant forfeited any claim that he is entitled to elect

sentencing under the amended version of section 5-4.5-95(b) because he did not raise it in a

postsentencing motion to reconsider. Defendant acknowledges that he did not “rel[y] on a

“retroactivity argument” below when seeking reconsideration of his sentence; however, he

contends normal forfeiture rules are relaxed when the issue involves the right to elect the

application of an amended sentencing statute. Additionally, he argues his claim may be reviewed

based upon either the occurrence of second-prong plain error or because his postplea counsel

-9- provided ineffective assistance by not raising the issue.

¶ 27 Forfeiture involves “the failure to make a timely assertion of a known right.” People

v. Bowens,

,

(2011). Generally, “a defendant

forfeits appellate review of any sentencing issue not raised in the trial court in a written

postsentencing motion.” People v. Lewis,

, 42,

, 1226 (2009); see

Ill. S. Ct. R. 604(d) (eff. July 1, 2017) (“Upon appeal any issue not raised by the defendant in the

motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be

deemed waived.”).

¶ 28 Here, we agree that, before the trial court, defendant did not raise a claim that he

was entitled to resentencing so that the new, amended version of section 5-4.5-95(b) of the Code

could be retroactively applied to his case. No such claim was set forth in any written postsentencing

motion, nor was it presented orally at defendant’s May 2022 postplea hearing. Ultimately,

however, the circumstances below do not suggest the occurrence of forfeiture but, instead, invited

error.

¶ 29 “The rule of invited error or acquiescence is a procedural default sometimes

described as estoppel.” In re Detention of Swope,

,

(2004).

“Under the doctrine of invited error, an accused may not request to proceed in one manner and

then later contend on appeal that the course of action was in error.” People v. Carter,

,

(2003). “The rationale behind this well-established rule is that it

would be manifestly unfair to allow a party a second trial upon the basis of error which that party

injected into the proceedings.” Swope,

.

¶ 30 In this case, when advocating for reconsideration of defendant’s sentence at the

May 2022 postplea hearing, Luchtenberg alluded to the July 2021 amendment to section 5-4.5-

- 10 - 95(b) and essentially asked the court to reconsider defendant’s sentence in line with the spirit of

the new version of the statute. However, counsel also explicitly argued that the amendment at issue

was “not retroactive.” Thus, the record reflects defendant’s counsel effectively requested to

proceed with reconsideration of defendant’s sentence as if the amendments to section 5-4.5-95(b)

were inapplicable to defendant. The State made the same argument, and the trial court indicated it

understood and accepted the parties’ representations. Under these circumstances, the doctrine of

invited error, not forfeiture, precludes defendant’s claim that he was entitled to retroactive

application of the amended version of section 5-4.5-95(b).

¶ 31 As stated, defendant argues that this court may reach the merits of his “retroactivity

argument” under either the plain-error doctrine or on the basis of ineffective assistance of counsel.

We note, however, that the plain-error doctrine applies only in cases involving forfeiture. People

v. McGuire,

,

. Where a defendant’s counsel has

specifically asked the trial court to proceed in a particular manner, “[t]he doctrine of invited error

blocks [the] defendant from raising th[e] issue on appeal, absent ineffective assistance of counsel.”

People v. Henderson,

,

; People v. Patrick,

,

(2009) (declining to address the defendant’s plain-error claim

because the defendant invited the error). Accordingly, in this instance, we consider only whether

Luchtenberg provided ineffective assistance by failing to argue that defendant was entitled to elect

sentencing under the more favorable, amended version of section 5-4.5-95(b) of the Code.

¶ 32 To establish an ineffective-assistance-of-counsel claim, a defendant must show

both that (1) his counsel’s performance fell below an objective standard of reasonableness and

(2) he suffered prejudice “in that, absent counsel’s deficient performance, there is a reasonable

probability that the result of the proceeding would have been different.” People v. Jackson, 2020

- 11 - IL 124112, ¶ 90,

(citing Strickland v. Washington,

(1984)). A

defendant’s failure to establish either deficient performance or prejudice is fatal to his claim.

¶ 33 “When *** a claim of ineffective assistance of counsel was not raised in the trial

court, our review is de novo.” People v. Bates,

,

.

Further, in this case, defendant’s claim also presents an issue of statutory construction, i.e., the

retroactive application of a statutory amendment, that is similarly reviewed de novo. People v.

Hunter,

,

.

¶ 34 As defendant points out on appeal, our supreme court has held that a defendant has

the right “to be sentenced under either the law in effect at the time the offense was committed or

that in effect at the time of sentencing.” People v. Hollins,

,

(1972). Absent “a showing that [the defendant] was advised of his right to elect ***, and an express

waiver of that right, [he is] denied due process of law.”

¶ 35 Here, there is no dispute that under the law in effect both at the time of the offense

and at the time of defendant’s sentencing in November 2019, he was eligible for mandatory Class

X sentencing pursuant to section 5-4.5-95(b) of the Code (730 ILCS 5/5-4.5-95(b) (West 2018)).

Specifically, defendant pleaded guilty to a Class 2 felony offense and had at least two prior

qualifying convictions for “Class 2 or greater Class felony” offenses.

There is also no dispute

that after his sentencing but prior to the conclusion of postplea proceedings in May 2022, section

5-4.5-95(b) of the Code was amended in a way that made it inapplicable to defendant’s case. See

Pub. Act 101-652, § 10-281 (eff. July 1, 2021) (amending 730 ILCS 5/5-4.5-95(b)). Because the

relevant statutory provision did not change prior to the time of defendant’s sentencing, the

proposition of law set forth in Hollins is not clearly or directly applicable to defendant.

Nevertheless, defendant argues the amended version of section 5-4.5-95(b) should still be

- 12 - retroactively applied to his case because the amendment went into effect while his case remained

pending in the trial court. For the reasons that follow, we disagree.

¶ 36 When, as in this case, “the temporal reach of the statute is not clearly indicated in

its text, then the statute’s temporal reach is provided by default in section 4 of the Statute on

Statutes.” Hunter,

; see 5 ILCS 70/4 (West 2020). That section states as

follows:

“No new law shall be construed to repeal a former law, whether such former law is

expressly repealed or not, as to any offense committed against the former law, or

as to any act done, any penalty, forfeiture or punishment incurred, or any right

accrued, or claim arising under the former law, or in any way whatever to affect

any such offense or act so committed or done, or any penalty, forfeiture or

punishment so incurred, or any right accrued, or claim arising before the new law

takes effect, save only that the proceedings thereafter shall conform, so far as

practicable, to the laws in force at the time of such proceeding. If any penalty,

forfeiture or punishment be mitigated by any provisions of a new law, such

provision may, by the consent of the party affected, be applied to any judgment

pronounced after the new law takes effect. This section shall extend to all repeals,

either by express words or by implication, whether the repeal is in the act making

any new provision upon the same subject or in any other act.” 5 ILCS 70/4 (West

2020).

¶ 37 “[S]ection 4 is a general savings clause, which [the supreme court] has interpreted

as meaning that procedural changes to statutes will be applied retroactively, while substantive

changes are prospective only.” (Internal quotation marks omitted.) Hunter,

.

- 13 - Further, under section 4, procedural law changes have been held to apply retroactively to cases

that are “ongoing” or “pending ***, i.e., a case in which the trial court proceedings had begun

under the old statute but had not yet been concluded.” Id. ¶ 30.

¶ 38 However, section 4 contains a specific provision that is applicable to new laws that

mitigate a penalty or punishment: “If any penalty, forfeiture or punishment be mitigated by any

provisions of a new law, such provision may, by the consent of the party affected, be applied to

any judgment pronounced after the new law takes effect.” 5 ILCS 70/4 (West 2020). “To ‘mitigate’

means ‘to make less severe.’ ” Hunter,

(quoting Webster’s Third New

International Dictionary 1447 (1993)).

¶ 39 In Hunter, the supreme court determined that no matter whether statutory changes

were “properly labeled ‘procedural’ or ‘substantive,’ ” the above language from section 4 of the

Statute on Statutes meant that if the changes mitigated a punishment, they could not be applied to

defendants who were sentenced before the statute took effect. Id. ¶¶ 52-54. In so holding, it noted

a prior decision, wherein it held “that the defendant was not entitled to be resentenced under the

new criminal code, which went into effect just 13 days after he was sentenced, because, under

section 4, ‘a punishment mitigated by a new law is applicable only to judgments after the new law

takes effect.’ ” Id. ¶ 54 (quoting People v. Hansen,

,

(1963)).

¶ 40 Defendant does not dispute that applying the July 2021 amendment to section 5-

4.5-95(b) to his case would subject him to a less severe range of penalties. However, he attempts

to distinguish Hunter on the basis that the amendments at issue in that case took effect while the

defendants’ cases were pending on appeal and not in the trial court. See id. ¶ 46. According to

defendant, because the amendment to section 5-4.5-95(b) that is at issue in this case took effect

- 14 - while his case was “ongoing” in the trial court, the sentencing amendments may be applied

retroactively to him under section 4 of the Statute on Statutes. We note, however, that the court’s

rationale in Hunter was not based upon the fact that the defendants’ cases were pending on appeal

rather than in the trial court when the amendments took effect, but explicitly on the fact that the

defendants “were sentenced well before” the sentence amendments took effect. Id. ¶ 55.

¶ 41 Defendant’s position on appeal is also directly refuted by the supreme court’s

decision in People v. Lisle,

,

(1945). There the court stated that section

4 of the Statute on Statutes “does not give the defendant the right to be sentenced under a law not

in full force and effect at the time of his sentence.”

. The court held section 4 “could only

apply to those classes of cases in which a new law had become effective prior to the date of the

actual sentence.”

¶ 42 Defendant argues Lisle should not be held to control or inform the issue in this case

because the supreme court’s decision “does not specify whether that case was pending on appeal

or in the trial court when the amendment became effective.” He also argues that Lisle was decided

before Rule 604(d) became effective and asserts as follows:

“Based on Rule 604(d), a timely post[ ]plea motion is a prerequisite to an appeal

from a guilty plea. Therefore, the order denying such a motion is the final judgment.

[Citation.] As such, there is no final judgment that can be appealed prior to the

denial of a post[ ]plea motion. Accordingly, it is at least a reasonable interpretation

of [section 4 of the Statute on Statutes] that the judgment had not been ‘pronounced’

until the motion to reconsider sentence was denied.”

¶ 43 We find Lisle is applicable to the present case and that defendant’s arguments lack

merit. Like Hunter, the court’s decision in Lisle clearly states that section 4 of the Statute on

- 15 - Statutes can “only apply to those classes of cases in which a new law had become effective prior

to the date of the actual sentence.”

Thus, the operative time for determining whether a new law

that mitigates a punishment can apply retroactively is the date of sentencing. The supreme court

did not limit or qualify its explicit holding in any way.

¶ 44 Further, supreme court case authority also refutes defendant’s contention that there

was no final judgment in his case until the denial of his postplea motion to reconsider. To support

his contention, defendant cites People v. Feldman,

,

(2011), wherein the Fifth District held that for defendants who plead guilty, it is the order

denying a postplea motion that is the final judgment in the case. Recently, however, in People v.

Walls,

, the supreme court overruled Feldman as to that proposition of law.

The court reaffirmed its “long-standing case law holding that imposition of a sentence constitutes

the final judgment in a criminal case” and stated that the holding in Feldman was “not supported

by the plain language of [the court’s] rules.” Id. ¶¶ 23-24. Accordingly, the date of the final

judgment in defendant’s case was the date of his sentencing, not the date the trial court denied his

postplea motion.

¶ 45 In his reply brief, defendant additionally cites to two recent appellate court

decisions which have addressed the precise issue presented by this case but with conflicting

results—the Second District’s decision in People v. Spears,

, and the

Third District’s decision in People v. Foster,

. The factual

circumstances in those cases are nearly identical to the factual circumstances of this case. In both,

the defendants (1) pleaded guilty to either a Class 1 or Class 2 felony and were sentenced as Class

X offenders under the version of section 5-4.5-95(b) in effect prior to July 2021; (2) filed postplea

motions that were denied and, on appeal, had their cases remanded for compliance with Rule

- 16 - 604(d); and (3) had continued postplea proceedings on remand after the July 2021 amendment to

section 5-4.5-95(b) took effect. Spears,

; Foster,

, ¶¶ 4-7.

¶ 46 In Spears, the defendant argued on appeal that the trial court erred in denying his

amended motion to reconsider his sentence because “he was entitled to elect the benefit of the

amendment to section 5-4.5-95 of the Code that took effect after sentencing but before the trial

court ruled on his amended motion to reconsider the sentence.” Spears,

. The Second District agreed and remanded for a new sentencing hearing. Id. ¶ 29. In reaching

its decision, the court noted the supreme court’s statements in Hunter that, under section 4 of the

Statute on Statutes, procedural law changes applied retroactively to ongoing or pending cases. Id.

¶ 23. It found that because the defendant’s case was “pending” in the trial court when the July

2021 amendment to section 5-4.5-95(b) took effect, that amendment applied retroactively to

defendant’s case. Id. ¶ 27.

¶ 47 The Spears court determined that denying the defendant relief would lead to an

“absurd result” because if he had been entitled to resentencing on any other ground “the amended

version of section 5-4.5-95(b) of the Code would have applied at [the] defendant’s new sentencing

hearing.” Id. ¶ 28. The court also relied on Feldman, in finding that rather than the trial court’s

imposition of the defendant’s sentence, it was “the order denying [the defendant’s] amended

motion to reconsider the sentence that act[ed] as the final judgment in” his case. Id. ¶ 29.

¶ 48 Defendant urges this court to follow Spears. We note, however, that the Spears

court did not address the supreme court’s statements in either Hunter or Lisle that, under section 4

of the Statute on Statutes, a new sentencing law that mitigates punishment may only be applied in

cases where the new law is effective before the date of the defendant’s actual sentencing. Hunter,

- 17 -

; Lisle,

. Additionally, the Second District’s analysis relied

heavily on the proposition of law set forth in Feldman that the final judgment in the defendant’s

case was the denial of his motion to reconsider and not the imposition of sentence. As discussed,

that proposition of law was explicitly overruled by the supreme court in Walls. Finally, in Hunter,

despite finding mitigating sentencing amendments were inapplicable to the defendants because

they became effective after the defendants were sentenced, the court contemplated that the new

laws would have applied in the event that resentencing was warranted for some other reason.

Hunter,

(noting the defendants made “no claim that error occurred in the

trial court that would require vacatur of their sentences and remand for resentencing, thus giving

them the option to be sentenced under” the new sentencing provisions). The supreme court noted

no absurdity that would result from such an occurrence. Given these circumstances, we decline

defendant’s invitation to follow Spears.

¶ 49 Instead, we find the reasoning of Foster is more convincing. Although Foster is an

unpublished decision, it may provide persuasive authority on review. See Ill. S. Ct. R. 23(e)(1)

(eff. Jan. 1, 2021) (stating that a nonprecedential order entered under Rule 23(b) “may be cited for

persuasive purposes”). In that case, the defendant argued on appeal that his postplea counsel was

ineffective for failing to raise the issue of the July 2021 amendment to section 5-4.5-95(b) in

connection with the defendant’s motion to reconsider his sentence. Foster,

, ¶ 10. The Third District determined the defendant’s postplea counsel was not

ineffective and that the “defendant was not entitled to have the new statute applied to his sentence

through his motion to reconsider.” Id. ¶¶ 13-14.

¶ 50 To support its holding, the Third District relied on the proposition of law set forth

in both Lisle and Hunter that a new sentencing law can only apply when it takes effect prior to the

- 18 - date of a defendant’s sentence. Id. ¶ 14 (citing Lisle,

, and Hunter,

,

¶ 54). Additionally, it noted that under section 4 of the Statute on Statutes, a new law that mitigates

a sentence may only “ ‘be applied to any judgment pronounced after the new law takes effect.’ ”

(Emphasis in original.) Id. ¶ 15 (quoting 5 ILCS 70/4 (West 2020)). It pointed out that in the case

before it, the “judgment was pronounced” in July 2018, “when the [trial] court entered the

[defendant’s] sentence,” and three years before the new sentencing law became effective. Id. (“The

fact that [the] defendant could ask the court to reconsider his sentence does not change the fact

that the judgment had been pronounced.”).

¶ 51 In this case, like in Foster, defendant was sentenced well before the July 2021

amendment to section 5-4.5-95(b) became effective. Accordingly, he was not entitled to have the

new version of the statute applied to his case. Because defendant’s contention lacks merit, he

cannot establish that Luchtenberg, his postplea counsel, was ineffective for failing to raise it in

connection with his motion to reconsider his sentence.

¶ 52 B. Counsel’s Compliance With Rule 604(d)

¶ 53 On appeal, defendant also argues that Luchtenberg failed to comply with the

requirements of Rule 604(d). He asserts that although Luchtenberg filed a facially valid certificate,

the record refutes its validity. In particular, defendant points out that during postplea proceedings,

Luchtenberg (1) did not argue or support with an affidavit the one claim that was included in the

amended postplea motion that he filed on defendant’s behalf and (2) only argued an excessive

sentence claim that was not included within the amended motion. He seeks remand for further

postplea proceedings.

¶ 54 “Rule 604(d) governs the procedure to be followed when a defendant wishes to

appeal from a judgment entered upon a guilty plea.” In re H.L.,

, 48 N.E.3d

- 19 - 1071. The rule requires that the defendant’s postplea counsel file a certificate with the trial court

that asserts the following:

“1. I have consulted with the Defendant in person, by mail, by phone or by

electronic means to ascertain the defendant’s contentions of error in the entry of the

plea of guilty and in the sentence;

2. I have examined the trial court file and report of proceedings of the plea

of guilty and the report of proceedings in the sentencing hearing; and

3. I have made any amendments to the motion necessary for the adequate

presentation of any defects in those proceedings.” Ill. S. Ct. Rs. Art. VI Forms

Appendix R. 604(d).

The purpose of the rule is to ensure that before the defendant appeals from his guilty plea, the trial

judge who presided over the plea proceedings is “ ‘given the opportunity to hear the allegations of

improprieties that took place outside the official proceedings and dehors the record, but

nevertheless were unwittingly given sanction in the courtroom.’ ” H.L.,

(quoting People v. Wilk,

,

(1988)).

¶ 55 Postplea counsel must strictly comply with Rule 604(d)’s certification requirement.

Id. ¶ 8. “Strict compliance requires counsel to prepare a certificate that meets the content

requirements of the rule and to file the certificate with the trial court.” Id. ¶ 25. The failure to

strictly comply with Rule 604(d) “requires ‘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.’ ”

People v. Gorss,

,

(quoting People v. Janes,

,

(1994)). Additionally, even a facially valid certificate may be refuted by

the record. People v. Curtis,

,

; see People v.

- 20 - Winston,

,

(“[E]ven when the certificate is valid

on its face, a remand will be necessary if the record refutes the certificate.”). The question of

whether counsel complied with Rule 604(d) is a legal question that is subject to de novo review.

Gorss,

,

¶ 56 Here, Luchtenberg filed a Rule 604(d) certificate that was facially compliant with

the rule. Defendant argues, however, that the record refutes Luchtenberg’s certification because it

shows he did not make amendments to defendant’s postplea motion that were necessary for the

adequate presentation of defendant’s claims. Ultimately, we find the record does not support

defendant’s claim of entitlement to further postplea proceedings.

¶ 57 As argued by the State, in People v. Shirley,

,

(1998), the supreme court rejected the “premise that the strict compliance standard *** must

be applied so mechanically as to require Illinois courts to grant multiple remands and new hearings

following the initial remand hearing.” Instead, the court held that “[w]here *** the defendant was

afforded a full and fair second opportunity to present a [postplea motion], [there is] limited value

in requiring a repeat of the exercise, absent a good reason to do so.”

¶ 58 In this case, the record shows defendant was afforded a full and fair opportunity to

present his postplea claims. First, nothing in the record casts doubt on Luchtenberg’s certifications

that he consulted with defendant and reviewed the trial court file and report of proceedings in

connection with both defendant’s guilty plea and his sentencing. In fact, at the postplea hearing on

remand, defendant explicitly stated to the court that he had enough time to speak with Luchtenberg

about postplea issues.

¶ 59 Second, although on remand Luchtenberg filed a motion to withdraw guilty plea on

defendant’s behalf, the record shows defendant elected not to pursue that claim. We note defendant

- 21 - explicitly made the same decision during his initial postplea hearing, and nothing in the record

suggests it was not his desire to forego such a claim on remand. Defendant also makes no argument

on appeal that a meritorious claim for withdrawal of his guilty plea exists.

¶ 60 Third, the record supports a finding that defendant was able to pursue the

reconsideration of his sentence fully and fairly on remand. Although Luchtenberg did not file a

motion for reconsideration of defendant’s sentence, he represented to the trial court that defendant

wanted to seek reconsideration “going back to what [defendant] brought up at the past hearing.”

Luchtenberg stated he was stipulating to the arguments made at defendant’s prior postplea hearing

in which he presented an excessive sentence claim. He also presented additional argument to the

court based on the amendment of section 5-4.5-95(b) of the Code. Defendant contends a full and

fair hearing did not occur because Luchtenberg’s actions resulted in no issues being preserved for

appeal. However, because the excessive sentence claim was presented to and considered by the

court, it was preserved for review and could have been raised by defendant on appeal. See People

v. Heider,

,

(2008) (“[W]here the trial court clearly had an

opportunity to review the same essential claim that was later raised on appeal, *** there was no

forfeiture.”).

¶ 61 Under the circumstances presented, the record reflects that defendant was afforded

a full and fair second opportunity to present his motion for reconsideration of his sentence, the

only motion he chose to pursue during the proceedings below. We find remand for further posptlea

proceedings is unwarranted.

¶ 62 III. CONCLUSION

¶ 63 For the reasons stated, we affirm the trial court’s judgment.

¶ 64 Affirmed.

- 22 - - 23 - People v. Brown,

Decision Under Review: Appeal from the Circuit Court of Boone County, No. 17-CF-202; the Hon. Robert Tobin, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Lilien, and Christopher McCoy, of for State Appellate Defender’s Office, of Elgin, for appellant. Appellant:

Attorneys Tricia L. Smith, State’s Attorney, of Belvidere (Patrick Delfino, for David J. Robinson, and David E. Mannchen, of State’s Attorneys Appellee: Appellate Prosecutor’s Office, of counsel), for the People.

- 24 -