THE PEOPLE OF THE STATE OF ILLINOIS, Aрpellee, v. ROBERT J. GORSS, Appellant.
Docket No. 126464
SUPREME COURT OF THE STATE OF ILLINOIS
Opinion filed January 21, 2022.
2022 IL 126464
JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Chief Justice Anne M. Burke and Justices Garman, Theis, Michael J. Burke, Overstreet, and Carter concurred
OPINION
¶ 1 Defendant, Robert J. Gorss, pled guilty to one count of aggravated driving under the influence (DUI) and was sentenced to 11 years’ imprisonment. Gorss, through counsel, filed a motion to reconsider his sеntence, and counsel filed a certificate pursuant to
¶ 2 I. BACKGROUND
¶ 3 A. Circuit Court Decision
¶ 4 On May 1, 2018, Gorss entered an open plea of guilty to one count of aggravated DUI in connection with the September 7, 2016, vehicle acсident causing the death of Dawn Nikeas. Gorss was sentenced to 11 years in prison to be served at 85%, followed by a 3-year term of mandatory supervised release (MSR).
¶ 5 On July 6, 2018, through his attorney, Gorss filed a motion to reconsider his sentence, arguing that the sentence was excessive and failed to consider numerous factors in mitigation, but the circuit court deniеd the motion. On July 9, 2018, Gorss filed a notice of appeal, which was dismissed by the circuit court on Gorss‘s own motion pursuant to
¶ 6 On August 13, 2018, counsel filed a Rule 604(d) certificate, which stated:
“1) The below-signed attorney has consulted with the defendant in person to ascertain the Defendant‘s claim of error in the еntry of the sentence.
2) The below-signed attorney has examined the guilty plea transcript and sentencing transcript and the trial court file herein;
3) The below-signed attorney has considered any amended motion to [r]econsider the [s]entence necessary for adequate presentation of any claim or error about the sentencе. 4) The Defendant does not desire to withdraw the guilty plea.
5) The Defendant does desire to reconsider the sentence.”
Counsel made no amendments to the motion to reconsider, and on August 13, 2018, the circuit court denied the motion.
¶ 7 B. Appellate Court Decision
¶ 8 On appeal, Gorss argued that (1) the circuit court abused its discretion by failing to consider the mitigating evidence and his rehabilitative potential when imposing the sentence and (2) counsеl failed to strictly comply with
¶ 9 II. ANALYSIS
¶ 10 The sole issue before this court is whether counsel‘s certificate strictly complied with
¶ 11 A. Language of
¶ 12
“The defendant‘s attorney shall file with the trial court a certificate stating that the attorney has consulted with the 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, has 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 has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.” (Emphasis added.) Ill. S. Ct. R. 604(d) (eff. July 1, 2017).
The rule also provides that the “certificate of counsel shall be prepared by utilizing, or substantially adopting the appearance and cоntent of, the form provided in the Article VI Forms Appendix.” Id.
¶ 13 The form of the certificate in the appendix includes the following language:
“I, ______________________________________________________, attorney for Defendant, certify pursuant to Supreme Court Rule 604(d) that:
1. I have consulted with the Defendant in person, by mail, by phone or by electronic means to ascertain the defendant‘s contentions of error in thе entry of the plea of guilty and in the sentence;
2. I have examined the trial court file and report of proceedings of the plea of guilty and the report of proceedings in the sentencing hearing; and
3. I have made any amendments to the motion necessary for the adequate presentation of any defects in those proceedings.” (Emphasis added.)
Ill. S. Ct. Art. VI Forms App‘x R. 604(d) .
¶ 14 B. Purpose of
¶ 15 This court has consistently held that the purpose of
“ ‘is to ensure that before a criminal appeal can be taken from a guilty plea, the trial judge who accepted the plea and imposed sentence be given the opportunity to hear the allegations of improprieties that took place outside the official proceedings and dehors the record, but nevertheless wеre unwittingly given sanction in the courtroom. Rule 604(d) provides for fact finding to take place at a time when witnesses are still available and memories are fresh. [Citation.] A hearing under Rule 604(d) allows a trial court to immediately correct any improper conduct or any errors of the trial court that may have produced a guilty plea. The trial сourt is the place for fact finding to occur and for a record to be made concerning the factual basis upon which a defendant relies for the grounds to withdraw a guilty plea. If the motion to withdraw the plea is denied, that decision can be considered on review.’ ” Tousignant, 2014 IL 115329, ¶ 14 (quoting People v. Wilk, 124 Ill. 2d 93, 104 (1988)).
In other words, an important purpose of
¶
“[T]he goal of Rule 604(d) is to ensure that counsel‘s consultation with defendant encompasses any contentions of error in both the entry of the guilty plea and the imposition of sentence. The point of the rule is to protect the defendant‘s interests through adequate consultation. The certificаte serves as evidence that the requisite consultation has taken place. It is the mechanism by which the circuit court is able to verify that counsel has fulfilled the rule‘s requirements.” (Emphases added.)
¶ 17 C. Strict Compliance With
¶ 18 Before this court, Gorss argues that counsel did not strictly comply with
¶ 19 This court has held that counsel must strictly comply with “each of the provisions of Rule 604(d)” and that the failure to do so requires “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.” People v. Janes, 158 Ill. 2d 27, 33 (1994).
¶ 20 In arguing that counsel‘s certificate strictly complied with
¶ 21 We disagree with both the reasoning and the result of the Peltz court and hereby overrule it. Instead, we find this court‘s holdings in Tousignant and Easton controlling. We recognize that, in both Tousignant and Easton, this court interpreted the prior language in
¶ 22 In Tousignant, we reiterated the important purpose of
¶ 23 In Easton, we reasoned that, “[w]here a certificate uses the word ‘or’ rather than ‘and,’ it does not confirm that both types of error were discussed with the defendant. Such a certificate is deficient because it offers the circuit court no assurance of counsel‘s compliance with the consultation obligation [of the rule].” Easton, 2018 IL 122187, ¶ 32.
¶ 24 Again,
¶ 25 Counsel‘s Rule 604(d) certificate, in this case, stated, inter alia, that (1) he consulted with Gorss to ascertain his claims of error in the entry of the sentence, (2) he examined the guilty plea transcript and sentencing transcript and the trial court file, (3) he considered any amended motion to reconsider the sentence necessary for adequate presentation of any claim or error regarding the sentence, and (4) Gorss does not desire to withdraw the guilty plea. Nowhere in the certificate does counsеl certify that he has consulted with Gorss regarding his contentions of error (if any) with respect to the entry of the guilty plea. All we know from counsel‘s certificate is Gorss‘s desire with respect to the guilty plea. We do not know whether counsel consulted with Gorss as to his contentions of error with respect to the entry of the guilty plea.
¶ 26 The language of the rulе is clear─counsel must certify that a consultation to ascertain the defendant‘s contentions of error as to both the sentence and entry of the guilty plea took place. This is to ensure that the defendant‘s interests are protected. Easton, 2018 IL 122187, ¶ 32 (“The point of the rule is to protect the defendant‘s interests through adequate consultation. Thе certificate serves as evidence that the requisite consultation has taken place.”). In determining whether counsel strictly complied with the rule, we are to ascertain “what counsel actually did to achieve compliance with the rule.” (Emphasis added.) Id. ¶ 34. “The clarity of our statement that ‘counsel is required to certify’ that he or she has consulted with the defendant as to both types of error cannot
¶ 27 We are not persuaded by the State‘s argument that logic dictatеs that a consultation took place because counsel certified that Gorss did not want to withdraw his guilty plea. Instead, we find that the certificate as written leaves us to speculate as to whether a consultation took place. Indeed, counsel may have consulted with the defendant as to his guilty plea, but it is equally possible that he did nоt. We find Justice McLaren‘s dissent in Peltz persuasive. The dissent reasoned:
“We are left to speculate as to what occurred between counsel‘s examination of the report of proceedings of the plea of guilty and defendant‘s stated desire not to withdraw his plea. Did defendant waive the issue or forfeit it? Such ambiguities provide the basis for facially meritorious grounds for further proceedings. Counsel did not certify that she related to defendant her opinion and advice regarding the results of her examination. Did counsel (1) see no error, tell that to defendant, and advise that he not bother to move to withdraw his plea; (2) find error and discuss its implications with defendant, who ultimately decided that he did not wish to seek to withdraw his plea; or (3) find error but decide not to tell defendant about it because defendant had initially filed only a motion to reconsider but not a motion to withdraw? All three are possible, and none is any more likely than the others. The fact that any of the three could have happened provides a basis for further postconviction proceedings.” Peltz, 2019 IL App (2d) 170465, ¶ 49 (McLaren, J., dissenting).
Here, counsel‘s certificate as written leaves unclear whether he consulted with Gorss as to his contentions of error in the entry of his guilty plea, and strict compliance with the rule demands counsel certify that he has consulted with Gorss to ascertain his contentions of error in both the sentence and the entry of the guilty plea. Therefore, we find that, because counsel failed to specifically certify that he consulted with Gorss to ascertain his contentions of error with respect to his guilty plea, counsel did not strictly comply with
¶ 28 D. Substantial Adoption of Content in Form Rule 604(d) Certificate
¶ 29
¶ 30 III. CONCLUSION
¶ 31 We find that, because counsel failed to expressly certify that he consulted with Gorss as to his contentions of error in the entry of the guilty plea, counsel failed to strictly comply with
¶ 32 Appellate court judgment reversed.
¶ 33 Circuit court judgment vacated.
¶ 34 Cause remanded.