THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUPERT W. LINER, Defendant-Appellant.
Docket No. 3-14-0167
Appellate Court of Illinois, Third District
November 17, 2015
December 16, 2015
2015 IL App (3d) 140167
JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justices Carter and Wright concurred in the judgment and opinion.
Appeal from the Circuit Court of Peoria County, No. 12-CF-761; the Hon. David A. Brown, Judge, presiding.
Jerry Brady, State’s Attorney, of Peoria (Dawn D. Duffy, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
¶ 1 The defendant, Rupert W. Liner, appeals the circuit court’s sua sponte denial of his motion to withdraw guilty plea and vacate sentence on the basis that the motion was untimely filed and the circuit court lacked jurisdiction. The defendant argues that his motion was timely filed under the “mailbox rule” and that this cause should be remanded for de novo postplea proceedings because reappointed counsel failed to file a certificate of compliance pursuant to
FACTS
¶ 2 ¶ 3 The defendant was charged by indictment with burglary (
¶ 4 The defendant pled guilty to burglary on February 5, 2013. In exchange, the State agreed to a sentence of 4½ years’ imprisonment and dropped the remaining charges.
¶ 5 The defendant filed a pro se motion to withdraw guilty plea and vacate sentence, which was filed on March 11, 2013. The defendant attached his own affidavit to the motion, which was not notarized. The motion contained a certificate of service which stated as follows:
“I, Rupert W. Liner, state that I served a copy of the document to which this affidavit is attached upon each party *** by enclosing the same in a sealed envelope plainly addressed as is disclosed by the pleadings of record herein and by depositing each of such envelopes in the box designated for United States mail at Vandalia Correctional Center, P.O. Box 500, Vandalia, Illinois, together with the appropriate request to the prison official responsible to affix fully prepaid postage thereon on this 6 day of March, 2013.”
¶ 6 The motion also contained a verification pursuant to
¶ 7 The record contains a letter to the defendant purportedly from attorney Thomas J. Penn, Jr., dated April 12, 2013. The letter stated that the defendant’s motion to withdraw guilty plea and vacate sentence had been referred to him for handling. The letter requested more detail regarding the claims raised in the defendant’s petition. In his brief, the defendant characterizes this letter as indicating that the public defender who had previously represented the defendant during his guilty plea was reappointed to represent the defendant on his postplea motion.
¶ 8 The circuit court entered an order denying the defendant’s motion without further proceedings on January 7, 2014. The circuit court reasoned that the motion was untimely filed, and, consequently, the circuit court no longer had jurisdiction.
¶ 9 ¶ 10 On appeal, the defendant argues that this cause should be remanded for de novo postplea proceedings in accordance with Rule 604(d) because: (1) his motion to withdraw guilty plea and vacate sentence was timely filed under the “mailbox rule” and (2) reappointed counsel failed to file a Rule 604(d) certificate. We find that the defendant’s motion was untimely filed and, consequently, the circuit court lacked jurisdiction to consider the motion. Remand for further proceedings is unwarranted in light of this finding.
I. Timeliness
¶ 11 ¶ 12 The defendant argues that his motion was timely filed under the “mailbox rule,” although it was received and file-stamped by the circuit clerk more than 30 days after his conviction was entered. The defendant calls our attention to the proof of service attached to the motion stating that the motion was deposited into the mail on March 6, 2013, within the 30-day filing period.
¶ 13 “Under the mailbox rule, pleadings, including posttrial motions [citation], are considered timely filed on the day they are placed in the prison mail system by an incarcerated defendant [citation].” People v. Shines, 2015 IL App (1st) 121070, ¶ 31; see also People v. Tlatenchi, 391 Ill. App. 3d 705, 710 (2009). “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
¶ 14 The defendant concedes that at the time he mailed his motion, his proof of service and verification were not in compliance with Rule 12(b)(3), which required the motion to be accompanied by an affidavit stating the time and place of mailing, the complete address that appeared on the envelope, and that proper postage was prepaid.
¶ 15 The defendant contends that the amended Rule 12(b)(4) applied retroactively to him. In support of his argument, the defendant cites In re Marriage of Duggan, 376 Ill. App. 3d 725, 728-30 (2007), for the proposition that amendments to supreme court rules that are procedural in nature may be applied retroactively if said amendments do not interfere with a vested right. Id. The Duggan court held that amendments to
¶ 16 Even if we were to accept the defendant’s position that the amended Rule 12(b)(4) retroactively applied to him, the defendant failed to meet the requirements of the amended rule because his verification did not contain the complete address to which the motion was to be delivered, as required by
¶ 17 In so finding, we reject the defendant’s contention that we should find that the defendant complied with Rule 12(b)(4) because the caption of his motion read: “IN THE CIRCUIT COURT OF PEORIA COUNTY, ILLINOIS” and the circuit court’s denial of the motion showed that it was received. “Although minor defects will be excused, proof of proper service by mail must be made in substantial compliance with the requirements of Supreme Court Rule 12 [citation].” Ingrassia v. Ingrassia, 156 Ill. App. 3d 483, 502 (1987). The defendant’s failure to include any address to which his motion was sent is not merely a “minor defect,” as Rule 12(b)(4) required the verification to include the ”complete address to which the document was to be delivered.” (Emphasis added.)
II. Remand for Compliance With Rule 604(d)
¶ 18 ¶ 19 The defendant contends that even in light of the above holding, the cause should be remanded for reappointed counsel’s compliance with the certification requirement of
¶ 20 While Rule 604(d) instructs the circuit court to appoint counsel and promptly hear a postplea motion filed within the 30-day time limit required by that rule, we do not interpret the rule to require the circuit court to appoint counsel and hold a hearing on the issue of jurisdiction when a postplea motion is not timely filed.
¶ 21 We reject the defendant’s reliance on People v. Hansen, 2011 IL App (2d) 081226, in support of his argument that this cause should be remanded for a hearing to give the defendant the opportunity to present evidence that his motion was timely filed. In Hansen, the record contained the envelope in which the defendant’s notice of appeal was mailed, which had a clearly legible postmark. Id. ¶ 14. The Hansen court held that the postmark was sufficient to
¶ 22 Here, unlike in Hansen, the defendant is not asking us to rule on whether a postmarked envelope contained in the record is sufficient proof of the date of mailing. Rather, the defendant essentially requests that we remand the cause to allow him to open discovery so that he can search for extrinsic evidence of the date of mailing. In making this request, the defendant has not cited any specific evidence that he would present at such a hearing. We decline to so extend the holding of Hansen.
¶ 23 We also note that the Fourth District has rejected the position that a postmark date, rather than compliance with Rule 12, is sufficient proof of mailing for a party to use the date of mailing as the date of filing. See People v. Blalock, 2012 IL App (4th) 110041, ¶ 11. Additionally, prior to Hansen, a different Second District panel held in People v. Lugo, 391 Ill. App. 3d 995 (2009), that a postmarked envelope was insufficient proof of mailing.
CONCLUSION
¶ 24 ¶ 25 The judgment of the circuit court of Peoria County is affirmed.
¶ 26 Affirmed.