*1 THIRD me, predecease should Beneficiaries any my named In the event equally to be to be left Trust Estate is person’s that share all of the named lineal children. among person’s divided share of children, person’s all of does not beneficiaries lineal person’s among equally be divided Estate is to the Trust representation. by right per stirpes descendants FOURTH RANGER WILLIAM death, known as my business Upon my property personal all real and EXCAVATING, including AND SONS W. MICHAEL business, entirely my son go is to by said owned RANGER.
FIFTH decide not to take RANGER my MICHAEL W. Should son equally proceeds divided be sold and the business, the business shall ALBRECHT, DIANA L. WIL- BRENDA S. among my daughters, W. RANGER; MICHAEL my sons LIAMSON, A. AND JULIE R. RANGER. AND MARK RANGER
SIXTH the busi- decide to sell W. RANGER my Should son MICHAEL my among equally divided ness, of the sale shall be proceeds WILLIAMSON, ALBRECHT, L. DIANA BRENDA S. daughters, RANGER; W. RANGER my sons MICHAEL AND A. JULIE AND MARK R. RANGER. S. ILLINOIS, Plaintiff-Appellee, v. NEIL OF
THE OF THE STATE PEOPLE PRATHER, Defendant-Appellant. 4 — 07—0113 District No.
Fourth Opinion March 2008. filed *2 TURNER, J., specially concurring part dissenting in part. in Tarrance, Daniel D. Appellate Yuhas Janieen R. both of State Office, Springfield, appellant. Defender’s for (Norbert Stroh, Attorney, Goetten, Michael L. State’s of Eureka J. Robert Biderman, J. Young, Attorneys and Salena R. Appellate of State’s Office, counsel), People. Prosecutor’s for the opinion JUSTICE COOK delivered the of the court: Defendant, Prather, pleaded Neil S. aggravated driving (West (DWLR) (625 303(d—3) 2006)), ILCS while license revoked 5/6— 4(a) (West (720 2006)), driving obstructing ILCS justice 5/31— (West 2006)). (625 (DUI) ILCS under influence 5/11 —501 years prison aggravated in for the to 5 Defendant was sentenced prison in for obstruction DWLR, years sentence of consecutive DUI. days justice, and a sentence of 364 concurrent direc- and remand with part, part, reverse in appeals. We affirm opinion. with this tions for consistent
I. BACKGROUND arraignment, July On at defendant’s following charge of obstruct- regarding informed defendant of the ing justice: years felony. punishable by up
“This It’s to three is Class $25,000 you If the same prison and a fine. have been convicted of excluding any greater years, or class of within the last offense ten you spent you time for that then incarceration years in the Correc- up Department could be sentenced to six $25,000 tions and a [DOC] fine.” fol- August 2, informed defendant of the
On lowing aggravated offense of DWLR: felony. punishable up
“This a Class That to three is $25,000 you the same prison and a fine. have been convicted of excluding any greater years, or a class of the last offensewithin ten *3 you you spent time have for that then incarceration $25,000 a fine. up [DOC] couldbe sentenced to six in the and you, you required be to pending against other offenses are could sentence, be serve a means one sentence will consecutive which [DOC], you served before the next one starts. If are sentenced to mandatory you required period year would he to serve a one [(MSR)] following your discharge supervised [from] release DOC.” 13, 2005, negotiated partially
On December defendant entered a again plea. hearing, possibility At the stated had an sentence if defendant “been convicted extended-term same or a greater class offense within the last [10] years, excluding offense,” pos- you spent time in incarceration MSR. sibility sentences, requirement consecutive to make the State acknowledged right he his understood doubt, trial, and right to guilty beyond him a his a prove reasonable witnesses, witnesses, testify or and right his to confront cross-examine the trial plea, a basis for the and gave remain silent. The State factual accepted guilty plea. court hearing. 28, 2006, sentencing February
On the trial court held a After noting prior defendant had “11 DUIs or similar offenses with pending” three and defendant had been sentenced to the DOC four times, separate the court stated high the likelihood was defendant would at some point get time behind the and wheel drive an automobile while intoxicated. The stated extended-term appropriate sentences were and then determined consecutive sentences were “given [of offense]” warranted the character given history. defendant’s In the court’s opinion, consecutive sentences were required protect to public from defendant’s criminal conduct “specifically drive, insurance, [his] to propensity to drive without to drive under while the influence.” The court sentenced defendant as stated. 30, 2006, defendant,
On through attorney, March his filed a mo- sentence, tion to objecting imposition reconsider to the of the consecu- tive and requesting specific findings sentence for the basis of the April 2006, sentence. In pro defendant filed a se alleging motion inef- fective On May 30, assistance counsel. defendant filed another (1) (2) pro se alleging erroneous; consecutive sentences were (3) imposed trial court sentence; a double-enhanced the court failed to admonish possibility defendant as to the aof consecutive (4) sentence; the court lacked evidence sufficient for the obstruction- (5) of-justice charge; factors; the court failed to mitigating consider judge partial made biased and statements during hearing; ineffective; his counsel was the court abused its imposing discretion in fines. 13, 2006,
On private June counsel withdrew his representation and appointed public defendant was a defender to represent him.
On September pro defendant filed another se motion al- leging the consecutive extended-term sentence violated the clause, proportionate-penalties subject his sentence was to improper enhancement, double improper imposition of an extended-term sentence, driving present copy failure certified of his abstract into evidence, obstructing justice, insufficient evidence to convict of improper police interrogation, ineffective assistance counsel asking counsel’s to defend him and his for an inap- failure propriate sentence. appointed
On defender public November was *4 January 23, the represent defendant. On trial court denied all of 24, 2007, postplea January Supreme the motions. On counsel filed 604(d) (188 604(d)) Court Rule 2d R. certificate that stated the fol Ill. lowing:
“That under Supreme Court Rule 604(d) this attorney [1] has [defendant's [2] the the to ascertain consulted [defendant examined the and further has error and sentence contentions of hearing[,] place on December the which took transcript plea of both on Febru- hearing!,] place which took 13, 2005[,] and the ings of ary 28, 2006[,] plea [3] of the trial court has made file any amendments report of to the mo- proceed- any defect those necessary presentation for of adequate tion added.) (Emphases proceedings.” This appeal followed.
II. ANALYSIS on he is entitled to a appeals, arguing Defendant certificate counsel’s his to reconsider sentence because defense argues also his strictly comply failed to with Rule Defendant statute violates due sentences are void because the extended-term process. 604(d)
A. Rule Certificate 604(d) provides following: attorney shall file with the trial court certificate “The by ror stating and has made mail or in in the sentenceor that the person file attorney any to ascertain defendant’s amendments report entry [1] has consulted with of proceedings plea guilty, [3] the motion of [2] contentions necessary plea has examined guilty, either of for er adequate presentation any proceedings.” defects in those added.) (Emphases 188 Ill. 2d R. 604(d) contain each
This court has stated a Rule certificate must the following: “(1) attorney A statement has consulted with the defendant, by person, either mail or in to ascertain defendant’s entry error or contentions of in the sentence guilty. attorney has examined the A statement that the
file. attorney A statement that the has examined guilty. attorney has A statement made amendments presentation defects in necessary adequate the motion Grice, App. 3d proceedings.” People those Ill.
N.E.2d 1146-47 case, above. quoted this defense counsel’s certificate was as comply fails to First, consultation ways. it not state whether counsel’s three does Second, it does not state by person. with defendant occurred mail or *5 that counsel entry ascertained defendant’s contentions of error in the guilty only plea of the as it stated he ascertained “conten- defendant’s of error tions and sentence.” not Finally, it does state whether counsel file, stating examined the court only that counsel examined the transcript of plea hearing sentencing and the hearing “in court file.”
In determining whether complied defense counsel with Rule 604(d), Grice, the standard of review is de App. novo. 371 Ill. 3d at 815, 867 supreme N.E.2d at 1145. Our court has held that strict 604(d) compliance with required reviewing Rule is and must court remand in strictly People case where counsel failed to v. comply. Janes, 33, 27, 790, 158 Ill. 2d 630 N.E.2d 792-93 This court 604(d) compliance not take need strict with Rule to unreasonable (see Wyatt, People extremes 305 Ill. 3d App. 712 N.E.2d (stating that 347-48 the certificate need not word- recite rule)). However, verbiage simply for-word of this court cannot 604(d) assume or infer compliance with Rule because the waiver strict 604(d) requirements Rule demand that issue not in the raised reconsider the sentence or the motion the plea to withdraw 604(d). guilty Ill. 2d forfeited. 188 R. 604(d) case, argues this the State the Rule certificate requirement satisfied the by stating consultation counsel consulted specification with defendant and the lack of about the contact mode of Further, not render does the certificate insufficient. the State acknowledges specifically the certificate does not state respect counsel ascertained defendant’s contentions error with entry of guilty plea implied but states the certificate such ac [djefendant’s tion as the certificate stated counsel ascertained “the argues contentions error and sentence.” The also that this State can court infer that defense counsel examined the trial file court as the certificate states that counsel examined the transcripts guilty-plea sentencing hearing examined “the proceedings plea guilty.” probably
While the State defense did counsel ascertain file, likely of defendant’s most at the trial errors and did look court certainty strictly comply do not know with because failed to counsel with Rule The statement that counsel ascertained defendant’s may intending contention of “error and sentence” have omitted words may in the a word guilty plea mistyped “error sentence” or have intending “error in be sure therefore whether sentence.” We cannot guilty plea counsel ascertained defendant’s contentions of error hearing as well as in the sentence. the trial file. The troubling
More is whether counsel read court plea transcripts of read the acknowledged counsel “report of file” and the hearings “in the stated, though, never The certificate guilty.” he counsel stated file. Because the entire court reviewed that counsel he “reviewed never states file” but “in the court transcripts reviewed 604(d). In with Rule complied have file,” may not the court counsel guilty- after the until case, represent did not counsel had motions posttrial and a series sentencing hearing, hearing, thoroughly ascertain failed to If counsel been submitted. file, might he trial court examine the or failed to
contentions cannot assume forfeited. We then be an error that would missed because counsel’s and must remand complied counsel requirements strictly comply with certificate did not *6 Extended-Term Statute Constitutionality of the B. (Unified Code of Corrections claims the Unified Defendant 2006)) (West Code) (730 conflicting contains seq. et ILCS 5/5—1—1 felony. 4 for a Class applicable sentence regarding provisions extended-term sentences that authorizes Specifically, the statute mandatory conflict with due because it is direct process violates 4 for Class felonies. language sentencing provision 8—1(a)(7) Code, “[ejxcept as of the Unified Under section 5— defining the a sentence in the statute provided otherwise by the determinate sentence set felony for a shall be a imprisonment *** [sjection, following limitations: according under this (7) 1 year not less than felony, the sentence shall be for a Class 8—1(a)(7) added.) 730 ILCS years.” (Emphasis than 3 not more 5/5 — 2004). (West of this section mandatory language Defendant claims felony both of his Class years to three on limits defendant’s sentence years and four Defendant, to five though, was sentenced offenses. to section 5—8—2 pursuant 4 felonies years for his two Class following: Code, provides Unified which “(a) imprison- to a term of not sentence an offender judge A shall by [s]ection authorized maximum sentence ment in excess of the of which the of- serious offense the class of the most 5—8—1 for forth in aggravation set unless the factors fender was convicted [sjection (a)(1)(b) (b) or clause [s]ection 5—5—3.2 paragraph pre[ ]trial and present. If the found to be 5—8—1 were (c 5) with subsection compliance proceedings were conducted — [sjection Procedure of Code of Criminal 111—3 of the following: judge may an offender to sentence v [*] v (6) than 3 be not less felony, a term shall for Class 8—2(a)(6)(West years.” not more than 6 730 ILCS 5/5 — 2004). that the extended-term sentencing provision
creates an ambiguous sentencing structure language because its in direct conflict with the 4 felony Class sentencing provision mandating a maximum sentence. For the following reasons, disagree.
Section provides 5—8—1 parameters felony sentences and section 5—8—2 imposition authorizes the of an extended term when certain aggravating factors exist. The language of the statutes establishes that the two sections are to conjunction be read in one another not exclusive of one 8—2, another. The title of section 5— Term,” “Extended suggests that in this section legislature was giving the times that the mandatory set term should be “extended.” The extended-term section references the set terms section 5—8—1 only allows deviation from section 5—8—1 where certain aggravat- ing present. factors are 8—2, section legislature clearly 5— intended that when an accompanied offense is with the enumerated aggravating factors, significant a more punishment apply. should The sentencing structure ambiguous is not as it is clear that section applies 5—8—1 unless enumerated aggravating factors exist that war- rant a greater punishment. Sections 5—8—1 and 5—8—2 do not conflict and the extended-term provision does not process. violate due
III. CONCLUSION stated, For the reasons we affirm defendant’s sentence to the extent applicable that the provisions of the Unified Code do not violate process; due 604(d) judgment we reverse the trial court’s
compliance and remand for the filing of a new postplea mo (if tion wishes), defendant so on post- motion, compliance strict requirements. *7 theAs State has successfully portion defended a judgment, award the State statutory its against $50 assessment defendant as appeal. People Nicholls, 166, costs v. 174, 71 Ill. 2d 374 N.E.2d 194, (1978); Smith, 197 see also People 133 Ill. App. 3d 328, N.E.2d
Affirmed in part, reversed in part, and remanded with directions. STEIGMANN, J., concurs. TURNER,
JUSTICE specially concurring part dissenting part:
Although majority’s I concur with the decision to affirm defen- disagree I argument, due-process based on his dant’s sentence compliance with and remand for the order to reverse majority’s portion Therefore, dissent from respectfully I order. sufficiently defense counsel’s judice,
In the case sub stated he Counsel of Rule complied requirements error, his contentions to ascertain consulted with and sentenc in the trial court file transcripts examined the guilty, ing hearings necessary adequate presenta the motion made amendments to in- the certificate was in those While proceedings. tion of defects Wyatt, See worded, required. not artfully a verbatim recitation is order, majority’s at 347-48. The Ill. at 712 N.E.2d App. 3d recitation of the however, a verbatim requiring has the effect of such judgment respects. all other rule. I would affirm the trial court’s EQUISTAR CHEMICALS, LP, Plaintiff-Appellant, v. HARTFORD STEAM CONNECTICUT, BOILER INSPECTION AND INSURANCE COMPANYOF Defendant-Appellee.
Fourth District 4 — 07—0478 No. Argued September Opinion filed March 2008. 2007.