2023 IL App (4th) 220400
Ill. App. Ct.2023Background
- Defendant Alvin Brown pleaded guilty in Oct. 2019 to Class 2 DWLR based on driving while his license was revoked for a prior DUI and having 14 prior DWLR violations.
- At sentencing (Nov. 2019) the trial court treated Brown as eligible for mandatory Class X sentencing under 730 ILCS 5/5-4.5-95(b) and imposed a 9-year term, consecutive to an existing Winnebago County sentence.
- Brown filed postplea motions; new counsel (Luchtenberg) filed Rule 604(d) certificates and pursued only a motion to reconsider the sentence on remand after an appellate summary remand for initial Rule 604(d) defects.
- While postplea proceedings were ongoing, the legislature amended section 5-4.5-95(b) effective July 1, 2021 to limit Class X treatment to forcible felonies, which would render Brown ineligible for Class X on his DWLR conviction.
- At the May 2022 postplea hearing the trial court denied reconsideration, accepting the parties’ position that the amendment was not retroactive; Brown appealed and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Brown) | Held |
|---|---|---|---|
| Whether Brown was entitled to elect resentencing under the July 1, 2021 amendment to 5‑4.5‑95(b) (which limited Class X to forcible felonies) | Forfeiture/invited‑error: Brown did not timely raise a retroactivity claim and counsel expressly told the court the amendment was not retroactive, so Brown cannot now seek retroactive application. | The amendment took effect while his case remained pending in the trial court; he should be allowed to elect sentencing under the more favorable law. | Denied. The court found invited error (counsel had urged nonretroactivity) and, on the merits, held mitigative sentencing amendments cannot be applied to sentences pronounced before the amendment took effect under the Statute on Statutes; counsel was not ineffective for failing to raise the claim. |
| Whether postplea counsel complied with Supreme Court Rule 604(d) or whether the record refutes counsel’s certification, requiring remand | Counsel’s certificates were facially compliant and the record shows Brown had a full and fair opportunity to present postplea claims on remand; no further remand required. | The record refutes the certificate because counsel argued claims not in the amended motion and did not support a withdrawal claim by affidavit, so strict compliance was not satisfied. | Denied. The court held the certificates were facially valid, Brown had a full and fair second opportunity to pursue postplea relief, and there was no basis for another remand. |
Key Cases Cited
- People v. Hollins, 280 N.E.2d 710 (Ill. 1972) (defendant has right to be sentenced under law in effect at time of offense or at time of sentencing; must be advised of election right)
- People v. Hunter, 104 N.E.3d 358 (Ill. 2018) (Statute on Statutes §4: mitigative sentencing changes apply only to judgments pronounced after the new law takes effect)
- People v. Lisle, 61 N.E.2d 381 (Ill. 1945) (Statute on Statutes does not permit sentencing under a law not in force at the time of the sentence)
- People v. Shirley, 692 N.E.2d 1189 (Ill. 1998) (no automatic remand for repetitive Rule 604(d) compliance where defendant had a full and fair opportunity on remand)
- People v. Janes, 630 N.E.2d 790 (Ill. 1994) (failure to comply with Rule 604(d) requires remand for new postplea proceedings)
- People v. Gorss, 194 N.E.3d 490 (Ill. 2022) (Rule 604(d) strict compliance required; noncompliance mandates remand)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑part standard for ineffective assistance of counsel)