People v. Jordan
2013 IL App (2d) 120106; Nos. 2-12-0106, 2-12-0108 cons.
Appellate Court of Illinois, Second District
June 28, 2013
2013 IL App (2d) 120106
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
In consolidated proceedings involving jury convictions and pleas to multiple offenses where defendant‘s counsel moved to reconsider only defendant‘s sentence, the denial of the motion to reconsider the sentence was vacated and the cause was remanded to allow the filing of a valid certificate under Supreme Court Rule 604(d), an opportunity to file a new motion to withdraw the guilty plea and/or reconsider the sentence, and for a new motion hearing, since Rule 604(d) is intended to preserve defendant‘s right to a direct appeal of both sentencing and pleading issues, which may be lost if not properly raised due to a failure to strictly follow Rule 604(d).
Appeal from the Circuit Court of Du Page County, Nos. 11-CF-1857, 10-CF-2588; the Hon. John J. Kinsella, Judge, presiding.
Vacated and remanded with directions.
Thomas A. Lilien and Bruce Kirkham, both of State Appellate Defender‘s Office, of Elgin, for appellant.
Robert B. Berlin, State‘s Attorney, of Wheaton (Lisa Anne Hoffman and Kristin M. Schwind, Assistant State‘s Attorneys, of counsel), for the People.
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Hutchinson and Jorgensen concurred in the judgment and opinion.
OPINION
“1. I have consulted with the Defendant in person to ascertain his contentions of error in the imposition of the sentence;
2. I have examined the trial court file and report of proceedings of the plea; and
3. I have made such amendments to the motion necessary for an adequate presentation of any defects in the proceedings.”
The trial court denied the motions. Defendant timely appealed in both case No. 10-CF-2588 (appeal No. 2-12-0108) and case No. 11-CF-1857 (appeal No. 2-12-0106). We consolidated the appeals.
¶ 2 On appeal, defendant contends that the orders denying his postjudgment motions must be vacated, and the causes remanded, because counsel‘s certificate did not comply strictly
¶ 3 As pertinent here,
¶ 4
¶ 5 In Dryden, the defendant pleaded guilty to aggravated driving under the influence of alcohol and was sentenced to 20 years’ imprisonment. He filed a combined motion both to withdraw the plea and to reconsider the sentence. His attorney filed a
“The State points out that the rule‘s consultation requirement is phrased in the disjunctive: counsel must certify that he sought ‘to ascertain defendant‘s contentions of error in the sentence or the entry of the plea of guilty.’ (Emphasis added.) [Citation.] However, in this context, it is clear that ‘or’ means ‘and.’ [Citation.] It would be absurd to suggest that where, as here, counsel moves both to withdraw the plea and to reconsider the sentence, counsel may arbitrarily choose to consult with the defendant about only one type of error.” Id. ¶ 9.
¶ 6 Dryden is arguably distinguishable in that the defendant there filed motions both to withdraw the guilty plea and to reconsider the sentence. Here, as noted, defendant moved only to reconsider his sentences. Nevertheless, we conclude that “or” still means “and.”
¶ 7 When we interpret a supreme court rule, our goal is to ascertain and effectuate the supreme court‘s intent. Friedman v. Thorson, 303 Ill. App. 3d 131, 135 (1999). We first look to the rule‘s language; if it is unambiguous, we must effectuate it without invoking extrinsic aids. Id. However, if it is ambiguous-susceptible to more than one reasonable interpretation-we may look beyond the language to the purpose it aims to serve. Id.
¶ 8 As Dryden noted, “or” is disjunctive. Elementary School District 159 v. Schiller, 221 Ill. 2d 130, 145 (2006). “As used in its ordinary sense, the word ‘or’ marks an alternative indicating [that] the various parts of the sentence which it connects are to be taken separately.” Id. However, the strict meaning of “or” “is more readily departed from than that of other words.” John P. Moriarty, Inc. v. Murphy, 387 Ill. 119, 129 (1944). Where such a construction is necessary to effectuate the drafters’ intent, “or” may be construed to mean “and.” Id. As noted, this is precisely what we did in Dryden.
¶ 9 Where, as in Dryden, the defendant moves both to withdraw his plea and to reconsider his sentence, “or” clearly means “and.” But where, as here, the defendant moves only to reconsider his sentence, “or” becomes ambiguous. Of course it cannot be strictly disjunctive; where the defendant moves to reconsider his sentence, counsel cannot satisfy
¶ 10 To us, the ambiguity is readily resolved by reference to the purpose of the certificate requirement, and specifically the purpose of strict compliance. “The purpose of complying strictly with
¶ 11 This is no less true where the defendant moves only to reconsider his sentence. To be sure, where the defendant files the motion pro se and is appointed counsel thereafter (see
¶ 12 A certified consultation with the defendant as to both categories of potential issues is even more important where, as here, the defendant‘s motion to reconsider his sentence is filed by counsel. In this case, counsel consulted with defendant to ascertain his contentions of error as to the sentence on his plea, and counsel then filed a motion to reconsider that sentence (as well as a motion to reconsider the sentence on his probation admission). For all we know, defendant had viable contentions as to his plea but counsel failed to even consider them. If we were to hold that counsel strictly complied with
¶ 13 Accordingly, we reject any suggestion that which motion is filed will dictate the extent of the consultation that the rule requires. To be sure, counsel must certify that he has made any necessary amendments to “the motion.”
¶ 14 More importantly, a suggestion that the scope of the motion controls the scope of the consultation-rather than vice versa-puts the cart before the horse. It is the consultation that should determine which issues are pertinent and thus which motion (or motions) should be filed. (For example, if the defendant has already filed a pro se motion only to reconsider the sentence, it is the consultation that should determine whether the motion to reconsider the sentence should be amended to include only additional sentencing issues or whether, in addition, the substance of a motion to withdraw the plea should also be filed.) If it were the
¶ 15 That said, we note here that we are not presuming that counsel was ineffective. We are not presuming that, had counsel consulted with defendant about his plea, counsel would have discovered an issue of merit. Indeed, the consultation might have quickly revealed that defendant had no desire to attack his plea, or that there was no basis to attack his plea. Thus, although we hold that a consultation as to the plea was required, and that counsel was required to certify such consultation in his
¶ 16 Nevertheless, without the certified consultation as to the plea, we are left to speculate that defendant might have had such contentions of error and wished to pursue them, and thus might have forfeited them. This prospect is wholly at odds with the assertion that counsel strictly complied with the rule. Again, strict compliance enables us to know that a defendant‘s postplea motion contained every postplea contention he had, that no postplea contention was lost. If we cannot feel secure in that knowledge, then, a fortiori, strict compliance cannot have occurred. The point is that, where defendant could file both a motion to reconsider the sentence and a motion to withdraw his plea in order to preserve all of his appeal rights, but he filed only a motion to reconsider the sentence, we cannot know that the decision not to move also to withdraw the plea was defendant‘s decision based on proper advice and “consultation” with counsel unless counsel‘s
¶ 17 This, again, is the ultimate point:
¶ 18 In sum, where a defendant enters a nonnegotiated plea and moves only to reconsider his sentence,
¶ 19 We vacate the orders of the circuit court of Du Page County denying defendant‘s motions to reconsider his sentences, and we remand the causes to allow “(1) the filing of a [valid]
¶ 20 Vacated and remanded with directions.