2017 IL App (1st) 152351
Ill. App. Ct.2018Background
- In April 2015 Jeremy Gillespie pled guilty to violating an order of protection pursuant to a negotiated plea: 12 months' probation, GPS monitoring, and community service.
- Gillespie subsequently filed a pro se motion interpreted by the trial court as a motion to withdraw his guilty plea; counsel then filed an amended motion.
- Counsel filed a Rule 604(d) certification stating counsel consulted with Gillespie "to ascertain his contentions of error in the entry of the plea of guilty" and that counsel examined the file and prepared a motion to withdraw the plea; the certification said nothing about consultation on the sentence.
- The trial court denied the motion to withdraw the plea; Gillespie appealed, arguing counsel’s Rule 604(d) certification was inadequate for failing to state consultation about the sentence.
- The State argued Tousignant did not apply because Gillespie’s plea was a closed/negotiated plea and counsel could not have challenged the agreed sentence.
- The appellate court vacated the trial court’s denial and remanded, holding counsel’s certification was inadequate under Rule 604(d) and Tousignant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel's Rule 604(d) certification must show consultation about both the plea and the sentence | State: Tousignant is limited to open pleas; in a closed plea the sentence was negotiated so consultation about the sentence was unnecessary | Gillespie: Tousignant requires counsel to certify consultation about both plea and sentence regardless of open or closed plea | Court: Tousignant and Rule 604(d) require counsel to consult on both plea and sentence; certification here was insufficient; vacated and remanded |
Key Cases Cited
- People v. Tousignant, 2014 IL 115329 (Ill. 2014) (Rule 604(d) requires counsel consult about both plea and sentence; "or" read as "and" to effectuate rule's purpose)
- People v. Martell, 2015 IL App (2d) 141202 (Ill. App. Ct. 2015) (applies Tousignant to negotiated pleas; consultation requirement not limited to open pleas)
- People v. White, 2011 IL 109616 (Ill. 2011) (trial court may not impose an illegal sentence even if agreed to by parties)