delivered the opinion of the court:
In February 1993, defendant Mark Kerkering pleaded guilty to one count of child pornography in violation of section 11—20.1(a)(6) of the Criminal Code of 1961 (Code) (720 ILCS 5/11—20.1(a)(6) (West 1992)) and one count of criminal sexual assault in violation of section 12—13(a)(3) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 12—13(a)(3)). In exchange for the plea, the State agreed to drop nine other charges. There was no agreement as to the sentence.
Defendant was sentenced to 3 years’ imprisonment on the child pornography charge and 10 years’ imprisonment оn the criminal sexual assault charge. The sentences were made to run concurrently. Defendant, through his attorney, filed a timely motion to reconsider sentence. The trial court denied defendant’s motion, and defendant appealed, alleging the trial court abused its discretion in sentencing him. This court vacated and remanded the cause, noting there was noncompliance with Rule 604(d) (145 Ill. 2d R. 604(d)) and concluding that "defendant is entitled to a remand for the filing of a new motion to reduce sentence.” People v. Kerkering, No. 4—93—0495, slip order at 2 (September 23, 1994) (unpublished order under Supreme Court Rule 23).
Upon remand, defendant’s attorney filed a proper Rule 604(d) certificate. Defense counsel, however, did not file a new motion to reduce sentence. Defense counsel reargued the motion before the court. In addition to matters raised in defendant’s motion to reconsider sentence, defense counsel argued that defendant had been a model prisoner while his case was on appeal. Defendant was present at this hearing. The trial court again denied defendant’s motion to reconsider sentence and defendant again appeals. We affirm.
Defendant argues that this court must once again vacate and remand this case because there was noncomрliance with Rule 604(d), the supreme court’s decision in People v. Janes,
In the first appeal, this court concluded that the case had to be remanded under the authority of Janes. In Janes, the defendant pleaded guilty to three counts of murder. The trial court sentenced the defendant to death, and the dеfendant filed a pro se motion to withdraw his guilty plea and a motion for resentencing. The defendant’s attorney stated that he felt as though his obligations as a court-appointed attorney had terminated, but that he would argue the motion nonetheless. The defendant’s attorney did not file a Rule 604(d) certificate.
The Janes court noted that all five districts of the appellate court had held that Rule 604(d) requires strict compliance. Janes,
" Wе are obliged to follow the supreme court ruling in [People v. Wilk,124 Ill. 2d 93 ,529 N.E.2d 218 (1988),] and hold that defendant be allowed to file a new motion to withdraw his guilty plea and be allowed a new hearing due to defense counsel’s error in not filing the required Rule 604(d) certificate ***.’ ” Janes,158 Ill. 2d at 33 ,630 N.E.2d at 792 .
The Janes court then affirmed the holdings of each district of the appellate court which had "granted the defendants therein the right to file a new motion to withdraw guilty plea and the right to have a hearing on the new motion.” Janes,
"[W]ith the exception of the motion rеquirements addressed in Wilk and [People v. Wallace,143 Ill. 2d 59 ,570 N.E.2d 334 (1991)], the remedy for failure to strictly comply with each of the provisions of Rule 604(d) is 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.” Janes,158 Ill. 2d at 33 ,630 N.E.2d at 792 .
The supreme court retained jurisdiction and remanded the case "to allow defendant to file a new motion to withdraw his guilty plea and for a hearing on that motion in full compliance with Rule 604(d).” Janes,
In support of his argument that trial counsel’s failure to file a new motion to reconsider sentence requires a remand, defendant relies upon the second district’s decision in People v. Oliver,
Picking up on the language in Janes that "the remedy for failure to strictly comply with each of the provisions of Rule 604(d) is a remand to the circuit court for the filing of a nеw motion to withdraw guilty plea or to reconsider sentence and a new hearing on the motion” (emphasis added) (Janes,
If a defendant wishes to appeal a guilty plea or the sentence imposed by the trial court, he must strictly comply with Rule 604(d). Janes,
"a certificate stating that the attorney has consulted with the defendant *** to ascertain his 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 proceеdings.” 145 Ill. 2d R. 604(d).
The trial court must hear the motion promptly. If the motion is denied, the defendant may then appeal.
In the instant case, defendant filed, through his attorney, a timely motion to reconsider sentence. Until this point, the defendant had complied with Rule 604(d). However, defеndant’s attorney did not file a Rule 604(d) certificate and, therefore, did not comply with Rule 604(d). This being the case, the trial court should not have proceeded to a hearing on the motion. Upon remand, however, defendant’s trial counsel filed the necessary Rulе 604(d) certificate. The court then held a new hearing on the motion. Thus, contrary to defendant’s appellate attorney’s contentions, defendant has now strictly complied with Rule 604(d).
The question then becomes whether Janes or this court’s earlier order that "dеfendant is entitled to a remand for the filing of a new motion to reduce sentence” (Kerkering, No. 4—93—0495, slip order at 2 (September 23, 1994) (unpublished order under Supreme Court Rule 23)) requires that defendant’s attorney, upon remand, file a new motion to reconsider sentencе. We conclude that they do not.
Rule 604(d) permits an attorney to amend a defendant’s motion to withdraw a plea of guilty if it is "necessary for adequate presentation of any defects in those proceedings.” 145 Ill. 2d R. 604(d). In the instant case, the defect in the proceedings below occurred when defendant’s trial counsel initially failed to file the Rule 604(d) certificate. Logically, this is where the case should begin again upon remand: with the attorney reviewing the proceedings for potential error and, if necessary, making amendments to the motion. Regardless of whether the attorney amends the motion, the attorney must then file the Rule 604(d) certificate. After the Rule 604(d) certificate has been filed, the trial court must hold a second hearing on the motion. This is because of the well-established rule that the filing of the Rule 604(d) certificate is a condition precedent to a hearing on the motion. People v. Hancock,
We believe this decision comports with the Janes decision. The Janes court based its decision upon the rationale in several appellate court cases, and the Hayes decision in particular. Nowhere in the Hayes opinion is it stated that, upon remand, trial counsel must file a new motion to reconsider sentence or to withdraw guilty plea. Rather, the Hayes cоurt held that the defendant should be "allowed to file a new motion to withdraw his guilty plea and *** allowed a new hearing.” (Emphasis added.) Hayes,
We believe a reading of Janes that makes the filing of a new Rule 604(d) motion permissive rather than mandatory is more logical and better suits the goal of judicial economy. Therefore, we hold thаt when a case is remanded for the filing of a Rule 604(d) certificate, the attorney need only file a new motion to reconsider sentence or to withdraw guilty plea if he or she determines that such action is "necessary for [the] adequate presentation of any defects” (145 Ill. 2d R. 604(d)) in the guilty plea or sentencing proceedings. Thereafter, the trial court must conduct a new hearing on the motion. In this case, defendant’s trial attorney apparently did not believe that any amendments were necessary. The trial cоurt conducted a new hearing. Accordingly, this case need not be remanded.
This leaves the court with the question of whether defendant’s sentence was an abuse of discretion. We conclude that it was not. The imposition of a sentence is a matter of judiсial discretion, and the standard of review to determine whether a sentence is excessive is whether a trial court abused that discretion. People v. McCain,
Defendant was convicted of criminal sexual assault in violation of section 12—13(a)(3) of the Code (Ill. Rev. Stat. 1987, сh. 38, par. 12—13(a)(3)). This is a Class 1 felony (Ill. Rev. Stat. 1987, ch. 38, par. 12—13(b)) punishable by not less than 4 years and not more than 15 years (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(4)). Defendant was charged with child pornography in violation of section 11—20.1(a)(6) of the Code (720 ILCS 5/11—20.1(a)(6) (West 1992)). This is a Class 4 felony (720 ILCS 5/11—20.1(c) (West 1992)) punishable by not lеss than one year and not more than three years (730 ILCS 5/5—8—1(a)(7) (West 1992)). Defendant could have been sentenced to consecutive terms of imprisonment. 730 ILCS 5/5—8—4(a) (West 1992). Defendant’s sentence falls within the statutory guidelines.
At the sentencing hearing, defendant offered several fаctors in mitigation supporting a lesser sentence. In particular, defendant noted that (1) he had accepted responsibility for his actions; (2) he had cooperated with police; (3) he lacked a prior criminal record; (4) he was gainfully employed; (5) this was an event that was unlikely to recur; (6) he was willing to seek treatment and obey the terms of probation; and (7) his family had a history of sexual abuse. However, the existence of mitigating factors does not automatically obligate the court to reduce the sеntence from the maximum. People v. Houck,
The record also indicates that the trial court considered factors in aggravation. The trial court heard evidence that defendant had been abusing his children for years. One of his victims reported suffering serious ongoing problems as a result of the years of abuse. The trial court found that it would be inconsistent with the ends of justice to sentence defendant to probation. In short, the record reveals that the trial court properly considered all relevant mitigating and aggravating factors when it determined defendant’s sentence. In doing so, the trial court imposed a sentence well within the statutory range. The trial court did not abuse its discretion in its sentencing defendant to concurrent terms of 3 years’ imprisonment for the child pornography conviction and 10 years’ imprisonment on the criminal sexual assault conviction.
For the foregoing reasons, the trial court’s judgment is affirmed.
Affirmed.
GREEN and KNECHT, JJ, concur.