Case Information
*1
FILED
October 22, 2015
Carla Bender
) Honorable ) Robert L. Freitag, ) Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court, with opinion. Presiding Justice Pope and Justice Steigmann concurred in the judgment and opinion.
OPINION In January 2013, defendant, Cedric Hobbs, entered an open plea to unlawful possession of a controlled substance with the intent to deliver (720 ILCS 570/401(a)(2)(A) (West 2010)). In August 2013, the trial court sentenced defendant to 15 years' imprisonment, with credit for 287 days served in custody, and ordered him to pay certain assessments. Defendant filed a motion to reconsider the sentence, which the court denied. Defendant appeals, asserting he is entitled to a remand for new postplea proceedings under Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013), as trial counsel failed to certify he consulted with defendant regarding defendant's contentions of error in both his sentence his guilty plea. We agree and remand for further proceedings.
¶ 2 I. BACKGROUND
¶ 3 In November 2012, a McLean county grand jury returned a bill of indictment charging defendant with one count of unlawful possession of a controlled substance with the intent to deliver, a Class X felony (count I) (720 ILCS 570/401(a)(2)(A) (West 2010)), and one count of unlawful possession of a controlled substance, a Class 1 felony (count II) (720 ILCS 570/402(a)(2)(A) (West 2010)).
¶ 4 In July 2013, the trial court commenced a jury trial on both counts. In the midst of the State's presentation of its case, defendant indicated his desire to enter an оpen plea to count I. Outside the presence of the jury, the court accepted defendant's guilty plea. Count II was eventually nol-prossed. In August 2013, the trial court sentenced defendant to 15 years' imprisonment,
with credit for 287 days served in custody, and ordered him to pay certain assessments. Defense counsel filed on defendant's behalf a motion to withdraw the plea or, in the alternative, to reconsider the sentence. In October 2013, the trial court held a hearing оn defendant's motion. At the
hearing, defendant amended his motion, requesting the court to only reconsider the sentence. Defense counsel offered the court a certificate averring compliance with Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013). The court requested defense counsel to complete the court's form Rule 604(d) certificate, believing it better comported with the statutory language. (Defense counsel's initial Rule 604(d) certificate is not contained in the rеcord on appeal.) Defense counsel completed the trial court's form Rule 604(d) certificate. The certificate indicated defense counsel: (1) "consulted with the defendant *** in person to ascertain *3 defendant's contentions of error in the sentence or the entry of the plea of guilty" (Emphasis added); (2) "examined the trial court file and the report of proceedings of the plea of guilty"; and (3) "made any amendments to the motion necessary for adequate presentation of any defects in thosе proceedings." The court accepted defense counsel's Rule 604(d) certificate. Following argument, the court denied defendant's amended motion to reconsider the sentence. ¶ 8 This appeal followed. II. ANALYSIS On appeal, defendant asserts he is entitled to a remand for new postplea
proceedings under Rule 604(d), as trial counsel failed to certify he consulted with him regarding
his contentions of error in
both
his sentence his guilty plea. Specifically, defendant contends
defense counsel's Rule 604(d) certificate, indicating he consulted with the defendant as to
"defendant's contentions of error in the sentence or the entry of the plea of guilty," fails to
comply with
People v. Tousignant
,
rules, our review is
de novo
.
People v. Neal
,
"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. *** The defendant's attorney shаll file with the trial court a certificate stating that the attorney [(1)] has consulted with the defendant [(a)] either by mail or in person [(b)] to ascertain defendant's contentions of error in the sentence or the entry of the plea of guilty, [(2)] has examined [(a)] the trial court *5 file and [(b)] report of proceedings of the plea of guilty, and [(3)] has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings. *** Upon аppeal any issue not raised by the defendant in the motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be deemed waived." Ill. S. Ct. R. 604(d) (eff. Feb. 6, 2013).
¶ 15 B. Tousignant : In Order To Effectuate the Intent of Rule 604(d), Counsel Is
Required To Certify He Consulted With Defendant "To Ascertain Defendant's
Contentions of Error in the Sentence
And
the Entry of the Guilty Plea."
In
Tousignant
,
counsel's certificate did not strictly comply with Rule 604(d), as it failed to demonstrate counsel
consulted with the defendant about possible errors in his guilty plea.
Tousignant
, 2014 IL
115329, ¶ 1,
disjunctive, requiring counsel to consult with a defendant only about contеntions of error in the
motion that is filed. ,
"[A] main purpose of Rule 604(d) is to ensure that any improper
conduct or other alleged improprieties that may have produced a
guilty plea are brought to the trial court's attention
before
an appeal
is taken, thus enabling the trial court to address them at a time
when witnesses are still available and memories are fresh. Toward
that end, the rule's certificate requirement is meant to enable the
trial court to ensure that counsel has reviewed the defendant's
claim and considered
all
relevant bases for the motion to withdraw
the guilty plea or to reconsider the sentence." (Emphases in
original.) ,
"If, for example, counsel certifies that he has consulted with the
defendant only about defendant's contentions of error regarding the
sentence, the possibility remains that the defendant might have had
contentions of error about the guilty plea but failed to mention
them. At a minimum, counsel's certificate, indicating he consulted
with defendant only about contentions of error in the sentence,
would fall short of assuring the trial court that counsel had
reviewed the defendant's claim and considered
all
relevant bases
for the post-plea mоtion. Worse still is the possibility that
defendant actually had concerns about the guilty plea which were
not discussed with counsel, and were omitted from the motion.
Such a result would run directly counter to the rule's purpose of
enabling the trial court to immediately correct, before an appeal is
taken, any improprieties that might have produced the guilty plea."
*8
(Emphasis in original.) ,
would further the rule's purpose. ,
"counsel would have beеn required to certify that he consulted with defendant about contentions of error in both the sentence the guilty plea, which would more likely enable the trial court to ensure that counsel had reviewed the defendant's claim and considered all relevant bases for the post-plea motion. More important, counsel's certifying that he consulted with the defendant about both types of error would make it more likely, rather than less likely, that all of the contentions of error were included in the post-plea motion, enabling the trial court to address and correct any improper conduct or errors of the trial court that may have produced the guilty plea." (Emphases in original.) ,2014 IL 115329 , ¶ 19,5 N.E.3d 176 . Rejecting the State's literal, disjunctive reading of Rule 604(d) as contrary to the
rule's purpose, our supreme court concluded as follows:
"We hold that in order to effectuate the intent of Rule 604(d),
specifically the language requiring counsel to certify that he has
consulted with the defendant 'to ascertain defendant's contentions
*9
of error in the sentence
or
the entry of the plea of guilty,' the word
'or' is considered to mean 'and.' Under this reading, counsel is
required to certify that he has consulted with the defendant 'to
ascertain defendant's contentions of error in the sentence the
entry of the plea of guilty.' " (Emphases in original.)
Tousignant
,
Therefore, the supreme court affirmed this court's reversal, finding defense counsel did not
strictly comply with Rule 604(d). ,
"Consider Attorney A, who conscientiously consults with the
defendant about both his guilty plea and sentence, determines that
defendant wants to raise issues concerning his sentence only, and
certifies that he consulted with the defendant about his contentions
of error in his sentence. Now consider Attorney B, who consults
with the defendant about his sentence only, and certifies, truthfully,
that he consulted with the defendant about his contentions of error
in the plea or sentence. A court will reverse and remand in the first
*10
case and not the second, even though, unbeknownst to the court, it
is Attorney B who clearly has not fulfilled his obligation." ,
Justice Thomas concludеd, "While certainly today's opinion will clear up some of the confusion,
I believe that the rule should be amended so that this court can have complete confidence that
attorneys are complying with the rule."
Tousignant
,
with Justice Thomas' special concurrence as to the confusion the majority's opinion will cause
without an amendment to the rule. ,
"What the majority is actually saying is that the rule should be read as follows:
'The defendant's attorney shall file with the trial court
a certificate stating that the attorney [(1)] has consulted
with the defendant [(a)] either by mail or in person [(b)] to
ascertain defendant's contentions of error,
and to discuss
any other errors
, in
both
the sentence the entry of the
plea of guilty, [(2)] has examined the [(a)] trial court file
and [(b)] report of proceedings of the [(i)] plea of guilty
[(ii)]
and sentencing
, and [(3)] has made any amendments
*11
to the motion necessary for adequate presentation of any
defects in those proceedings.' " (Emphases in original.)
,
Justice Karmeier concluded, "I am not opposed to changing Rule 604(d), but we should do so
prospectively and only after the open deliberative process usually followed by this court in
making rule changes."
Tousignant
,
District considered, in relevant part, the impact of on defense counsel's Rule 604(d)
certificate.
In
Mineau
,
motion to withdraw the guilty plea or, alternatively, to reconsider the sentence. Defense counsel
filed a Rule 604(d) certificate alleging, in relevant part, he contacted the defendant to ascertain
his " 'contentions of error in the sentence
or
the entry of the plea of guilty.' " (Emphasis added.)
Mineau
,
defense counsel's certificate was sufficient as the language comported with the rule's text.
People v. Mineau
,
"Given that 'or' in the rule means 'and,' cоunsel's certificate
here literally complies. Nothing in demonstrates an
intention to change the rule's literal language or to change what a
certificate must state. Further, we note that, given that counsel
filed on defendant's behalf a motion to withdraw the plea or, in the
alternative, to reconsider the sentence, it is reasonable to infer that
counsel consulted with defendant about both types of error.
We note that, in his special concurrence in ,
Justiсe Thomas anticipated this situation, pointing out that literal
compliance could lead to uncertainty as to whether counsel
consulted with his or her client about both types of error.
However, he implicitly found that using 'or' complies with the rule
as presently written. [Citation.]"
Mineau
, 2014 IL App (2d)
110666-B, ¶¶ 18-19,
¶ 30 In a special concurrence, Justice Jorgensen advised it would be better practice for
counsel to use "and," rather than "or," to certify he or she has consulted with the defendant as to
his or her plea sentencing.
Mineau
,
¶ 31 D. Defense Counsel's Rule 604(d) Certificate Here, defense counsel filed on defendant's behalf a motion to withdraw the plea or, in the alternative, to reconsider the sentence. Thereaftеr, defendant amended his motion, requesting the court to only reconsider his sentence. Defense counsel completed the trial court's form Rule 604(d) certificate, which
the court accepted. The Rule 604(d) certificate stated, in relevant part, "I have consulted with the
defendant *** to ascertain defendant's contentions of error in the sentence
or
the entry of the plea
of guilty." (Emphasis added.) We find, in light of the supreme court's decision in ,
effectuate the intent of Rule 604(d), the word "or" must be "considered to mean 'and.' " The State asserts this indicates courts are to read "or" as "and" when rеviewing counsel's Rule 604(d) *14 certificate, and not that counsel must write "and" instead of "or." The State's interpretation fails to consider the sentence that follows in Tousignant , which we emphasize here:
"Under this reading, counsel is required to certify that he has consulted with the defendant 'to ascertain defendant's contentions of error in the sentence and the entry of the plea of guilty.' " (Emphasis in original.) ,2014 IL 115329 , ¶ 20, 5 N.E.3d 176.
The court quoted the language of Rule 604(d), removed the word "or," and inserted the word "and." We find the plain language of this sentence indicates a clear intention of the supreme court to require defense counsel to certify he or she has discussed with a defendant his or her contentions of error in the sentence the entry of the plea of guilty. Further, the State's position is at variance with the rule's purpose. "[T]he rule's
certificate requirement is meant to enable the trial court to ensure that counsel has reviewed the
defendant's claim and considered
all
relevant bases for thе motion to withdraw the guilty plea or
to reconsider the sentence." (Emphasis in original.) ,
ascertain defendant's contentions of error in the sentence
and
the entry of the plea of guilty
"would make it more likely, rather than less likely, that all of the contentions of error were
included in the post-plea motion, enabling the trial court to address and correct any improper
conduct or errors of the trial court." ,
defendant's behalf a motion to withdraw the plea or, in the alternative, to reconsider the sentence,
it is reasonable to infer that counsel consulted with defendant about both types of error."
*16
Mineau
,
6, 2013) states: "Upon appeal any issue not raised by the defendant in the motion to reconsider
the sentence or withdraw the plea of guilty and vacate the judgment shall be deemed
waived[,
i.e.
, procedurally defaulted]." This is defendant's one opportunity, short of the hurdles
of postconviction proceedings, to bring any allegations of error to the trial сourt's attention. We
conclude the supreme court intends that opportunity to not only be meaningful, but also one that
fully informs the trial court of any alleged error.
Finally, we find the reliance in
Mineau
,
N.E.3d 633, on Justice Thomas's special concurrence in
Tousignant
unpersuasive. The court
cited Justice Thomas's warning that without amendment, confusion may result as to whether
counsel consulted with his or her client about both types of error. The court held Justice
Thomas's concurrence "implicitly found that using 'or' complies with the rule as presently
written."
Mineau
,
compliance and remand for (1) the opportunity to file a new motion to withdraw the guilty plea and/or reconsider the sentence, if counsel concludes that a new motion is necessary; (2) a new hearing on defendant's postplea motion; and (3) the filing of a Rule 604(d) certificate in compliance with the supreme court's interpretation of the rule in . Reversed; cause remanded with directions.