*1 Illinois Official Reports
Appellate Court
People v. Cooper
,
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. Caption TODD COOPER, Defendant-Appellant.
District & No. First District, Sixth Division
No. 1-19-0022 Filed October 22, 2021
Decision Under Appeal from the Circuit Court of Cook County, No. 14-CR-19586; the Hon. Thomas Joseph Hennelly, Judge, presiding. Review Judgment Remanded with directions.
Counsel on James E. Chadd, Douglas R. Hoff, and Kelly Anne Burden, of State Appellate Defender’s Office, of Chicago, for appellant. Appeal
Kimberly M. Foxx, State’s Attorney, of Chicago (John E. Nowak, Tasha-Marie Kelly, and Joseph Alexander, Assistant State’s Attorneys, of counsel), for the People.
Panel JUSTICE MIKVA delivered the judgment of the court, with opinion.
Justices Harris and Oden Johnson concurred in the judgment and opinion.
OPINION ¶ 1 Defendant Todd Cooper appeals from a circuit court order denying his motion to withdraw
his guilty plea. On appeal, Mr. Cooper contends that his motion, file-stamped the day after it was due, should be deemed timely under the mailbox rule, though Mr. Cooper did not file a certification complying with Illinois Supreme Court Rule 12(b)(6) (eff. July 1, 2017). We must reject Mr. Cooper’s invitation to expand the mailbox rule to encompass situations like this where, though circumstances may suggest that a requisite filing was placed in the mail on or before its due date, the defendant has failed to provide a certification evidencing proof of timely mailing as specified in Rule 12(b). Given the strong circumstantial evidence indicating that Mr. Cooper did place his motion
in the prison mail system on or before the deadline, however, we find it was improper for the circuit court in this case not to have allowed Mr. Cooper an opportunity to supplement the record with the requisite certification. The court questioned Mr. Cooper, who was not represented by counsel, only as to when his motion was filed and did not go on to ask him the more pertinent question: when did he place his motion in the mail? Had the court made that inquiry, Mr. Cooper may well have been able to confirm timely mailing with the requisite certification. Because this important inquiry was not made, we find the proceedings below to be deficient. In an exercise of our authority under Illinois Supreme Court Rule 615(b)(2) (eff. Jan. 1, 1967), we remand this matter to the circuit court for the limited purpose of allowing Mr. Cooper—if he is able to do so—to supply the necessary certification establishing that his motion was timely mailed. I. BACKGROUND Mr. Cooper was charged with numerous counts of first degree murder, aggravated criminal
sexual assault, and robbery in connection with events occurring on or about October 14, 2014. He pleaded guilty to one count of first degree murder in exchange for a sentence of 45 years in prison. According to the factual basis offered in support of the plea, Mr. Cooper and his two codefendants sexually assaulted and killed a homeless man in an alley on the northwest side of Chicago. On May 10, 2018, the circuit court accepted Mr. Cooper’s guilty plea and admonished him of his appellate rights. The court explained to Mr. Cooper that, if he wished to appeal, he had 30 days in which to file a motion to withdraw his guilty plea. Because the thirtieth day fell on June 9, a Saturday, Mr. Cooper had until Monday, June 11, 2018, to file such a motion. Mr. Cooper filed a pro se motion to withdraw his guilty plea that was file-stamped by the
circuit court clerk on June 12, 2018, 1 day after the 30-day filing deadline had passed. At a hearing on the motion held on November 19, 2018, the court asked Mr. Cooper whether June 12, 2018, was the date on which his motion had been filed with the clerk’s office. Mr. Cooper, unrepresented by counsel and quite possibly unaware that, under the mailbox rule, the date of mailing can be deemed the date of filing, agreed that it was. The court also questioned Mr. Cooper at length regarding the basis for his argument that his counsel had coerced him into accepting the guilty plea. The court then denied the motion, finding both that it was untimely and that it lacked substantive merit. Mr. Cooper now appeals.
¶ 7 II. JURISDICTION
¶ 8 The circuit court denied Mr. Cooper’s motion to withdraw his guilty plea on November 19,
2018. Mr. Cooper filed a timely notice of appeal on December 13, 2018. We have jurisdiction over this appeal under Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013) and Rule 606 (eff. Mar. 12, 2021), governing appeals from final judgments in criminal cases.
¶ 9 III. ANALYSIS Our review is de novo because this appeal turns on the construction of court rules. In re
Receivership of Grnacek
,
Court” but by its terms also applies to any “motion directed against the judgment and to the notice of appeal filed in the trial court.” We have recognized that this means that Rule 373 applies to the filing of motions to withdraw guilty pleas. People v. Tlatenchi , 391 Ill. App. 3d 705, 713 (2009). Rule 373 establishes a “mailbox rule” and provides, in relevant part:
“Unless received after the due date, the time of filing records, briefs or other documents required to be filed within a specified time will be the date on which they are actually received by the clerk of the reviewing court. If received after the due date, the time of mailing by an incarcerated, self-represented litigant shall be deemed the time of filing. Proof of mailing shall be as provided in Rule 12.” Ill. S. Ct. R. 373 (eff. July 1, 2017). Rule 12, which addresses proof of service but applies, through Rule 373, to proof of mailing
for purposes of the mailbox rule, states under paragraph (b), titled “Manner of Proof,” that mailing “is proved” in six enumerated ways. Ill. S. Ct. R. 12(b) (eff. July 1, 2017). In the case of “a self-represented litigant residing in a correctional facility,” proof is by “certification under section 1-109 of the Code of Civil Procedure [(Code)] of the person who deposited the document in the institutional mail, stating the time and place of deposit and the complete address to which the document was to be delivered.” Ill. S. Ct. R. 12(b)(6) (eff. July 1, 2017). Section 1-109 of the Code, in turn, allows for verification by certification, without the requirement that the document be sworn to before a notary or other authorized person. 735 ILCS 5/1-109 (West 2016). Our supreme court addressed whether proof of mailing could be based on something other
than the “Manner of Proof” specified in Rule 12(b) in
Secura Insurance Co. v. Illinois Farmers
Insurance Co.
,
appeal to the clerk’s office and that proof of the date of mailing was reflected in the date typed
on the cover letter that accompanied the notice of appeal.
Secura
,
Mr. Cooper seeks here in
People v. Shines
,
defendant’s motion in that case was “likely,” whereas here it was a “virtual certainty.” These differences in the strength of circumstantial evidence of a timely mailing, however, are simply not controlling. The plain language of the rules and our supreme court’s interpretation of those rules in Secura limit the kind of evidence—not the strength of evidence—that may be considered by a court in determining whether a filing was timely mailed. As the Shines court stated : “To rely on the date of mailing as the filing date, a defendant must provide proof of mailing by filing a proof of service that complies with the requirements of [Rule 12].” Id. ¶ 33. As the court recognized in Shines , this strict reading of the rule may have been unfair to the defendant in that case, who the court agreed was “highly likely” to have mailed his motion on time. Id. ¶ 40. Of course, that is equally—if not more—true here. However, we are bound by our supreme court’s decision in Secura , and we agree with our court’s application of the law in Shines . By treating the date of mailing as the date of filing, the mailbox rule extends the time for an incarcerated person to make a timely filing. However, that allowance is made only where proof of the time of that mailing is provided to the court in the manner specified by Rule 12. Mr. Cooper provided no such proof in this case. All of this notwithstanding, we do note that there was ample opportunity in this case for
the circuit court to allow Mr. Cooper to supplement the record with a Rule 12(b)(6) certification *5 if, as the record suggests was the case, he could truthfully have done so. The circuit court judge began the hearing on Mr. Cooper’s motion by stating that he was “in receipt of a document file-stamped June 12th of 2018.” The judge then showed the document to Mr. Cooper and asked him a series of questions—whether it looked like his handwritten motion, whether it was his signature at the bottom, and, in reference to the file stamp, “Is that the date you filed it with the clerk’s office?” Mr. Cooper answered yes to each question, and this was the extent of any inquiry on the timeliness of his motion. The circuit court then proceeded, over seven or eight additional pages of transcript, to question Mr. Cooper, who was unrepresented by counsel, regarding the merits of his motion before ruling both that the motion was untimely and that it lacked substantive merit. As Mr. Cooper correctly points out, under Illinois Supreme Court Rule 604(d) (eff. July 1,
2017), the merits of his motion should not have been considered unless counsel was first appointed to represent him. The circuit court was correct to begin with an inquiry into the timeliness of the motion to withdraw the guilty plea. However, once it determined that the document had been file-stamped by the clerk’s office just one day after it was due, the appropriate next step was to determine if Mr. Cooper could supplement his motion with the certification required by Rule 12(b)(6) and section 1-109 of the Code. By inquiring into the timeliness of Mr. Cooper’s motion but failing to follow that inquiry to its logical conclusion, the court left the proceedings on this issue incomplete. We see nothing in Rule 12(b)(6) that prohibits a litigant from supplementing his filing with
a certification proving the date and manner of mailing. Indeed, this seems to have been
permitted even under the common-law mailbox rule. See,
e.g.
,
A.S. Schulman Electric Co. v.
Village of Fox Lake
,
inquiring of Mr. Cooper when his motion was mailed. If it was timely mailed and Mr. Cooper is able to truthfully do so, he should be allowed to supply a certification complying with Rule 12(b)(6) and section 1-109 of the Code that establishes the date and manner of mailing for his *6 motion to withdraw his guilty plea. If the motion was timely and Mr. Cooper is indigent, he is entitled to the appointment of counsel under Rule 604(d). We retain jurisdiction over this appeal to consider the timeliness and the merits of Mr. Cooper’s motion, if necessary, on a more complete record. Remanded with directions.