People v. Geer, 2023 IL App (5th) 220069-U

JUSTICE WELCH delivered the judgment of the court.

Justices Cates and Vaughan concurred in the judgment.

ORDER

¶ 1 Held: The trial court’s denial of the defendant’s motion to withdraw his guilty plea is vacated where counsel failed to strictly comply with the requirements of Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). Thus, we remand for proceedings in compliance with Rule 604(d).

¶ 2 The defendant, Larry Geer, appeals from the denial of his motion to withdraw his guilty plea to threatening a public official, i.e., a police officer. On appeal, he contends that defense counsel failed to strictly comply with the requirements of Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). Specifically, he argues that, although counsel filed a facially valid Rule 604(d) certificate, the record refutes his compliance where counsel failed to attach an affidavit verifying the factual assertions set forth in the motion, counsel failed to offer any argument or evidence at the hearing on the motion, and the record suggests that counsel failed to ascertain the defendant’s contentions of error in the entry of the guilty plea. For the following reasons, we vacate and remand for proceedings in compliance with Rule 604(d).

I. BACKGROUND

¶ 3 ¶ 4 On May 24, 2021, the State charged the defendant with two counts of threatening a public official (720 ILCS 5/12-9(a) (West 2020)), Class 3 felonies, and one count of disorderly conduct (id. § 26-1(a)(1)), a Class C misdemeanor. On August 17, 2021, the defendant entered a negotiated plea of guilty to one count of threatening a public official. In exchange for the plea, the State agreed to dismiss the remaining counts as well as four additional misdemeanor cases (case Nos. 21-CM-87, 21-CM-158, 21-CM-191, and 21-CM-78)¹ and to recommend a sentence of 24 months’ probation. At the hearing, the trial court made sure the defendant understood the nature of the plea, the charge that he was pleading guilty to, the applicable sentencing ranges for each charge, and the rights that he was giving up by pleading guilty. The court also questioned the defendant to determine whether the guilty plea was knowingly and voluntarily made. The State then read the following factual basis for the plea:

If called to testify, Officer Gavin Hartley would testify that [the defendant] was in custody for disorderly conduct on May 21, 2021, and sometime after 7:42 p.m., he was taken to the Murphysboro Police Department where he made threats to Officer Gavin Hartley that included, ‘I will’—and I’m paraphrasing due to the language—‘effing shoot you.’ He also stated, ‘I will blow your brains out,’ and ‘I will shove a grenade up your A-S-S. I got one on me right now,’ which placed Officer Gavin Hartley under fear of either imminent or future harm from [the defendant]. That would be Officer Hartley’s testimony if this case went to trial.

¶ 5 After the State read the factual basis, the trial court accepted the guilty plea as “knowingly and understandably and voluntarily made, supported by a factual basis.” The parties waived a presentence investigation report, and the court sentenced the defendant according to the terms of the plea, i.e., to 24 months’ probation, and admonished him as to his right to appeal.

¶ 6 On September 8, 2021, the State filed a petition to revoke the defendant’s probation after he was charged with criminal trespass to a residence and two counts of disorderly conduct. On September 16, 2021, the defendant’s counsel filed a motion to withdraw his guilty plea and vacate the judgment. The motion contended that the defendant’s guilty plea should be withdrawn because he “indicated that he did not commit the offense.” Attached to the motion was an affidavit signed by the defendant’s counsel, which stated that she had reviewed the allegations in the motion and that they were true and correct.

¶ 7 On October 22, 2021, the State filed a motion in opposition to the defendant’s motion to withdraw his guilty plea, contending that the trial court conducted a thorough inquiry of the defendant at the guilty plea hearing to determine whether the plea was knowingly and voluntarily made; the defendant’s mere assertion that he did not commit the offense was not a valid basis to withdraw his plea as he must point to something in the record that showed that he did not voluntarily and knowingly enter the plea; the record was clear that he knowingly and voluntarily entered his guilty plea; and he did not assert any mistaken belief as to his plea.

¶ 8 Also on October 22, 2021, the defendant’s counsel filed a certificate pursuant to Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) that indicated that she had (1) consulted with the defendant to ascertain his contentions of error in the entry of the plea and in the sentence, (2) examined the trial court file and both the report of proceedings for the guilty plea hearing and the sentencing hearing, and (3) made any necessary amendments to the motion for the adequate presentation of any defects in those proceedings.

¶ 9 On October 25, 2021, the trial court held a hearing on the defendant’s motion to withdraw his guilty plea. At the hearing, the defendant’s counsel indicated that she had read the transcripts and the State’s response, and she was “simply resting on the filings.” The defendant then indicated that “part of the deal” was that all of his charges would be dismissed if he pled guilty, but he had five city ordinance violations that were still pending. He requested that those five charges also be dismissed. The State then responded that it would also rest on its motion in opposition to the defendant’s motion to withdraw. As for the ordinance violations, the State indicated that those were not encompassed in the plea deal because the state’s attorney’s office did not handle city ordinance violations. The State noted that the city ordinance violations were with a “different prosecutor, different authority.”

¶ 10 In response, the trial court addressed the defendant, explaining that city ordinance violations in city court were different types of cases that were handled by a different prosecutor, that they were fines only, and the state’s attorney’s office did not have any control over those cases as they were handled by city attorneys. The court also explained that only cases that were pending in Jackson County prosecuted by the state’s attorney’s office could have been or would have been part of any plea deal in this matter. The defendant responded that he understood that now but did not when he entered his guilty plea. His counsel then indicated that, at the time the guilty plea was entered, she did not know about the ordinance violations; and the only charges that were part of the deal were the four dismissed misdemeanor charges (one remained pending because an agreement could not be reached as to that charge). The defendant responded as follows:

When I accepted this deal, I was anxious to get out of jail because I had been in jail for probably over 200 days on bogus charges. I was very interested in getting out of jail and I had plans to appeal the deal and hire some people to do so. I believe you probably already remember that, but I decided to stick with [my attorney] because she is doing a wonderful job. As she said, she knew nothing about the new charges, and I thought that I would be free of city charges. I was told all charges—and when I think all charges, I think all charges except—all charges would be dropped except for the one that involved my wife, which is also bogus.

¶ 11 After hearing the defendant’s statements, the trial court found that the defendant’s plea was knowingly and voluntarily entered into and denied his motion to withdraw his guilty plea. In making this decision, the court indicated that it had considered the defendant’s motion, the arguments made at the hearing, and the transcript of the plea hearing.

¶ 12 On October 31, 2021, the trial court entered a written order, reiterating its denial of the defendant’s motion to withdraw his guilty plea. On December 14, 2021, the defendant’s counsel filed a motion for extension of time to file a notice of appeal. On December 17, 2021, the trial court granted the defendant’s request for an extension of time and gave him 30 days to file his notice of appeal. On May 20, 2022, this court granted the defendant leave to file a late notice of appeal.

II. ANALYSIS

¶ 13 ¶ 14 On appeal, the defendant argues that his counsel did not strictly comply with Rule 604(d) because she failed to attach an affidavit to the motion to withdraw to support the allegation that he had not committed the offense, counsel failed to offer any argument or evidence in support of the motion to withdraw, and the record suggests that counsel failed to ascertain his contentions of error in the entry of the guilty plea.

¶ 15 Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) sets forth the procedure that must be followed when a defendant wishes to appeal from a judgment entered upon a plea of guilty. Rule 604(d) provides, in relevant part, as follows:

No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw the plea of guilty and vacate the judgment.

No appeal shall be taken upon a negotiated plea of guilty challenging the sentence as excessive unless the defendant, within 30 days of the imposition of sentence, files a motion to withdraw the plea of guilty and vacate the judgment.

***

The motion shall be in writing and shall state the grounds therefor. When the motion is based on facts that do not appear of record it shall be supported by affidavit ***. Ill. S. Ct. R. 604(d) (eff. July 1, 2017).

¶ 16 Rule 604(d) also requires defendant’s counsel to file a certificate with the trial court, which states that the attorney has (1) consulted with defendant either by phone, mail, electronic means or in person to ascertain defendant’s contentions of error in the sentence and the entry of the plea of guilty, (2) examined the trial court file and both the report of proceedings of the plea of guilty and the report of proceedings in the sentencing hearing, and (3) made any amendments to the motion necessary for an adequate presentation of any defects in those proceedings. Id.

¶ 17 Rule 604(d) is designed to ensure defendants are provided their due process rights and to eliminate unnecessary appeals. People v. Shirley, 181 Ill. 2d 359, 362 (1998). Thus, counsel’s certificate must strictly comply with Rule 604(d). Id. If the certificate does not strictly comply with the rule, a reviewing court must remand the case for the filing of a new motion and a new hearing on the motion. People v. Janes, 158 Ill. 2d 27, 33 (1994). Generally, we consider the certificate itself to evaluate compliance with Rule 604(d). People v. Neal, 403 Ill. App. 3d 757, 760 (2010). However, even if counsel files a facially valid certificate of compliance, we may consult the record to determine whether counsel fulfilled her obligations under Rule 604(d). Id.; People v. Bridges, 2017 IL App (2d) 150718, ¶ 8. We review the question of whether defense counsel complied with Rule 604(d) de novo. People v. Grice, 371 Ill. App. 3d 813, 815 (2007).

¶ 18 Relying on Bridges and People v. Winston, 2020 IL App (2d) 180289, the defendant contends that his counsel did not strictly comply with Rule 604(d). In Bridges, postplea counsel amended defendant’s pro se motion to withdraw guilty plea to include detailed allegations about his plea being coerced and not being intelligently made. Bridges, 2017 IL App (2d) 150718, ¶ 2. Although counsel filed a certificate of compliance with Rule 604(d), the amended motion was not supported by an affidavit. Id. The appellate court concluded that the allegations in the amended motion were not supported by the record, and thus, counsel was required to attach an affidavit substantiating the allegations. Id. ¶ 9. The court noted that not only did counsel fail to attach an affidavit, but counsel also failed to present defendant’s testimony or any evidence in support of defendant’s motion. Id. Thus, the court found that the trial court had no basis for deciding the motion other than its own recollection of defendant’s demeanor during the plea proceedings. Id.

¶ 19 The appellate court also concluded that the hearing on the motion was inadequate to satisfy Rule 604(d)’s strict-compliance standard. Id. ¶ 10. The court noted that counsel’s failure to offer any argument or evidence in support of the motion functioned as a concession that the motion was without merit, and the hearing served little purpose other than to clear a procedural hurdle to the appeal. Id. ¶ 11. According to the court, “[a] hearing on a motion to withdraw a defendant’s guilty plea must be more than a charade performed only to allow an appeal to proceed.” Id. ¶ 10. Accordingly, the court vacated the denial of defendant’s amended motion to withdraw his plea, and the case was remanded for strict compliance with Rule 604(d)Id. ¶ 12.

¶ 20 Similarly, in Winston, defendant’s counsel filed an amended motion to withdraw guilty plea alleging that defendant’s plea was involuntary because the defendant was unaware that a felony conviction would have adverse consequences on her educational and employment opportunities, and defendant entered the plea under duress. Winston, 2020 IL App (2d) 180289, ¶ 3. Counsel filed a certificate of compliance with Rule 604(d). Id. ¶ 4. At a hearing on the motion, counsel argued the evidence against defendant was insufficient, and defendant had given testimony to that effect. Id. ¶¶ 4-5, 15. However, this claim was not included in defendant’s amended motion to withdraw guilty plea. Id. ¶¶ 3, 15. At the hearing, counsel attempted to admit four handwritten statements to support this claim. Id. ¶ 8. The State objected, and the trial court refused to admit the statements, but offered counsel an opportunity to continue the hearing to bring in witnesses. Id. ¶ 9. Counsel declined the invitation to continue the hearing, explaining that the statements were similar to what defendant had testified to. Id. The court then denied the motion to withdraw guilty plea, finding that defendant had not presented any objective evidence to support her claims. Id. ¶ 10.

¶ 21 On appeal, defendant contended that the record showed that, contrary to the Rule 604(d) certificate, counsel did not amend the motion to withdraw to adequately present defects in the entry of the guilty plea. Id. ¶ 15. The appellate court agreed, finding that, although counsel had argued, at the hearing on the motion to withdraw, that the evidence was not sufficient to prove defendant’s guilt, counsel failed to advance that argument in an amended motion supported by affidavits from the witnesses whose testimony supposedly would have exonerated defendant. Id. Since counsel failed to do this, the record refuted counsel’s Rule 604(d) certificate of compliance. Id. ¶¶ 15-16. In making this decision, the appellate court considered Bridges, noting that there was an additional error in that case, i.e., that there was no meaningful hearing on the motion to withdraw. Id. ¶ 16. However, the court noted that a violation of the certificate requirement was, by itself, grounds for remand. Id. Thus, under Bridges, the violation of the certificate requirement and the deficient hearing were fully independent grounds for remand. Id.

¶ 22 Here, counsel filed a facially valid Rule 604(d) certificate. The defendant argues, however, that the record refutes counsel’s assertion that she complied with Rule 604(d) where counsel failed to support the sole allegation in the motion to withdraw with any evidence, documents, or affidavits. The only argument presented in the defendant’s motion was that the defendant should be allowed to withdraw his plea because he “indicated that he did not commit the offense.” However, counsel failed to develop this argument beyond the mere denial of the defendant’s guilt; counsel added no factual support to suggest that there was doubt as to his guilt or that he had a defense worthy of consideration. Presumably, in bringing this allegation to the trial court, counsel had some evidentiary support for this claim. Since that support is not contained in the record, counsel was obligated to attach an affidavit substantiating the defendant’s claim of innocence in order to strictly comply with Rule 604(d). Although counsel attached her own affidavit swearing that the allegation in the motion was true, this affidavit did not provide support for the allegation that the defendant did not commit the offense.

¶ 23 Moreover, this is not a situation where, despite any inadequacy in the motion to withdraw guilty plea, counsel developed the defendant’s claim of innocence at the hearing on the motion and made argument as to why the defendant had not committed the relevant offense. Cf. People v. Curtis, 2021 IL App (4th) 190658, ¶ 39 (finding that counsel “in essence” presented the circuit court with the claims defendant argued were absent from the amended motion to withdraw at the hearing on that motion), appeal denied, 183 N.E.3d 902 (Nov. 24, 2021) (table); People v. Kocher, 2021 IL App (4th) 200610-U, ¶¶ 26, 31 (holding that remand for compliance with Rule 604(d) was not required because defendant was provided with a meaningful opportunity to present evidence in support of his allegations of error during a full and fair hearing on his motion to withdraw guilty plea, the circuit court received evidence related to his allegations of error, and the evidence showed that he could not establish a claim of ineffective assistance of counsel under the circumstances); People v. Jackson, 2022 IL App (5th) 200042-U, ¶ 37 (remand was not required where postplea counsel developed defendant’s claims at the hearing on the amended motion and made argument as to why defendant had a defense worthy of consideration), appeal denied, 210 N.E.3d 791 (Mar. 29, 2023) (table). At the hearing in the present case, counsel presented no evidence or argument in support of the motion; instead, counsel relied on the one sentence allegation contained in the motion. Also, during the hearing, the defendant raised an entirely different basis for withdrawing his guilty plea, i.e., that he misunderstood the terms of the plea deal because he thought his city ordinance violations would also be dismissed as part of the plea. Although the defendant was given a full and fair opportunity to present this claim of error to the trial court, no argument or evidence was presented as to the sole contention raised in his motion to withdraw.

¶ 24 The State, focusing on the merits of the underlying motion, argues that the defendant’s plea was knowingly and voluntarily made where he was properly admonished; there was nothing in the record to indicate that he did not understand the admonishments or the terms of the plea; and there was no indication that he was told that his ordinance violations would be dismissed as part of his plea deal, especially considering his acknowledgement that his attorney did not know about the violations when he entered into the guilty plea. While this could be true, this has no bearing on the issue of whether counsel has strictly complied with Rule 604(d). Instead, the dispositive question is simply whether the proceedings below were in strict compliance with Rule 604(d).

¶ 25 Specifically with regard to Rule 604(d), the State contends that the defendant’s counsel filed the required Rule 604(d) certificate, which tracked the language of the rule, and, thus, demonstrated strict compliance with Rule 604(d). However, as already noted, even where counsel has filed a facially valid certificate of compliance, the record may refute counsel’s certificate. As explained above, the record here refutes counsel’s certificate because counsel has not provided any documentation or presented any evidence to support the sole allegation made in the motion to withdraw the guilty plea. Accordingly, we vacate the denial of the defendant’s motion to withdraw his plea, and we remand the cause for (1) the filing of a Rule 604(d) certificate; (2) the opportunity to file a new motion to withdraw the guilty plea, if counsel concludes that a new motion is necessary; and (3) a new hearing on the motion. See Bridges, 2017 IL App (2d) 150718, ¶¶ 6, 12 (the proper remedy for counsel’s failure to strictly comply with Rule 604(d)’s affidavit requirement is to remand the cause to the trial court for an opportunity to file a new motion to withdraw the guilty plea and a new hearing on the motion).

III. CONCLUSION

¶ 26 ¶ 27 For the foregoing reasons, we vacate the denial of the defendant’s motion to withdraw his plea, and we remand this case to the circuit court of Jackson County for further proceedings in accordance with this decision.

¶ 28 Vacated and remanded.

Notes

1

These specific case numbers were identified by the State at the guilty plea hearing and were listed on the probation order signed by the defendant.

Case Details

Case Name: People v. Geer

Court Name: Appellate Court of Illinois

Date Published: Sep 29, 2023

Citations: 2023 IL App (5th) 220069-U; 5-22-0069

Docket Number: 5-22-0069

Court Abbreviation: Ill. App. Ct.