People v. Prather

Filed 3/14/08 NO. 4-07-0113

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Woodford County
NEIL S. PRATHER, ) No. 05CF78
Defendant-Appellant. )
) Honorable
) Charles M. Feeney,
) Judge Presiding.
_________________________________________________________________

JUSTICE COOK, delivered the opinion of the court:

Defendant, Neil S. Prather, pleaded guilty to aggra-

vated driving while license revoked (DWLR) (625 ILCS 5/6-303(d-3)

(West 2006)), obstructing justice (720 ILCS 5/31-4(a) (West

2006)), and driving under the influence (DUI) (625 ILCS 5/11-501

(West 2006)). Defendant was sentenced to 5 years in prison for

the aggravated DWLR, a consecutive sentence of 4 years in prison

for obstruction of justice, and a concurrent sentence of 364 days

for the DUI. Defendant appeals. We affirm in part, reverse in

part, and remand with directions for proceedings consistent with

this opinion.

I. BACKGROUND

On July 12, 2005, at defendant's arraignment, the trial

court informed defendant of the following regarding the charge of

obstructing justice:

"This is a Class 4 felony. It's punishable

by up to three years in prison and a $25,000

fine. If you have been convicted of the
 same or greater class of offense within the

last ten years, excluding any time you have

spent in incarceration for that offense, then

you could be sentenced up to six years in the

Department of Corrections [DOC] and a $25,000

fine."

On August 2, 2005, the trial court informed defendant

of the following regarding the offense of aggravated DWLR:

"This is a Class 4 felony. That is punishable

up to three years in prison and a $25,000 fine.

If you have been convicted of the same or a

greater class of offense within the last ten

years, excluding any time you have spent in

incarceration for that offense, then you could

be sentenced up to six years in the [DOC] and

a $25,000 fine. If other offenses are pending

against you, you could be required to serve a

consecutive sentence, which means one sentence

will be served before the next one starts.

If you are sentenced to [DOC], you would be

required to serve a period of one year of

mandatory supervised release [(MSR)] following

your discharge [from] the DOC."

On December 13, 2005, defendant entered a partially

negotiated guilty plea. At the hearing, the trial court again

stated the possibility of an extended-term sentence if defendant

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had "been convicted of the same or a greater class of offense

within the last [10] years, excluding any time you have spent in

incarceration for that offense," the possibility of consecutive

sentences, and the requirement of MSR. Defendant acknowledged he

understood his right to make the State prove him guilty beyond a

reasonable doubt, his right to a trial, and his right to confront

witnesses, cross-examine witnesses, and testify or remain silent.

The State gave a factual basis for the plea, and the trial court

accepted the guilty plea.

On February 28, 2006, the trial court held a sentencing

hearing. After noting defendant had "11 prior DUIs or similar

offenses with three pending" and defendant had been sentenced to

the DOC four separate times, the court stated that the likelihood

was high that defendant would at some point in time get behind

the wheel and drive an automobile while intoxicated. The court

stated extended-term sentences were appropriate and then deter-

mined consecutive sentences were warranted "given the character

[of the offense]" and given defendant's history. In the court's

opinion, consecutive sentences were required to protect the

public from defendant's criminal conduct "specifically [his]

propensity to drive, to drive without insurance, and to drive

while under the influence." The court sentenced defendant as

stated.

On March 30, 2006, defendant, through his attorney,

filed a motion to reconsider sentence objecting to the imposition

of the consecutive sentence and requesting specific findings for

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the basis of the sentence. In April 2006, defendant filed a pro

se motion alleging ineffective assistance of counsel. On May 30,

2006, defendant filed another pro se motion alleging (1) consecu-

tive sentences were erroneous; (2) the trial court imposed a

double-enhanced sentence; (3) the court failed to admonish

defendant as to the possibility of a consecutive sentence; (4)

the court lacked sufficient evidence for the obstruction-of-

justice charge; (5) the court failed to consider mitigating

factors; (6) the judge made biased and impartial statements

during the sentencing hearing; (7) his counsel was ineffective;

and (8) the court abused its discretion in imposing fines.

On June 13, 2006, defendant's private counsel withdrew

his representation and defendant was appointed a public defender

to represent him.

On September 7, 2006, defendant filed another pro se

motion alleging the consecutive extended-term sentence violated

the proportionate-penalties clause, his sentence was subject to

improper double enhancement, improper imposition of an extended-

term sentence, failure to present a certified copy of his driving

abstract into evidence, insufficient evidence to convict of

obstructing justice, improper police interrogation, and ineffec-

tive assistance of counsel regarding counsel's failure to defend

him and his asking for an inappropriate sentence.

On November 21, 2006, a new public defender was ap-

pointed to represent defendant. On January 23, 2007, the trial

court denied all of the postplea motions. On January 24, 2007,

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counsel filed a Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d))

certificate that stated the following:

"That under Supreme Court Rule 604(d) this

attorney [1] has consulted with the [d]efendant

to ascertain the [d]efendant's [2] contentions of

error and sentence and further has examined

the transcript of both the plea hearing[,]

which took place on December 13, 2005[,]

and the sentencing hearing[,] which took

place on February 28, 2006[,] [3] in the trial

court file and the report of proceedings of

the plea of guilty and has made any amend-

ments to the motion necessary for adequate

presentation of any defect in those pro-

ceedings." (Emphases added.)

This appeal followed.

II. ANALYSIS

Defendant appeals, arguing he is entitled to a new

hearing on his motion to reconsider sentence because defense

counsel's certificate failed to strictly comply with Rule 604(d).

Defendant also argues his sentences are void because the

extended-term statute violates due process.

A. Rule 604(d) Certificate

Rule 604(d) provides the following:

"The defendant's attorney shall file with the

trial court a certificate stating that the

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 attorney [1] has consulted with the defendant

either by mail or in person to ascertain

defendant's [2] contentions of error in the

sentence or the entry of the plea of guilty,

[3] has examined the trial court file and

report of proceedings of the plea of guilty,

and has made any amendments to the motion

necessary for adequate presentation of any

defects in those proceedings." (Emphases

added.) 188 Ill. 2d R. 604(d).

This court has stated that a Rule 604(d) certificate must contain

each of the following:

"(1) A statement that the attorney has

consulted with the defendant, either by mail

or in person, to ascertain defendant's conten-

tions of error in the sentence or the entry

of the plea of guilty.

(2) A statement that the attorney has ex-

amined the trial court file.

(3) A statement that the attorney has

examined the report of proceedings of the plea

of guilty.

(4) A statement that the attorney has

made any amendments to the motion necessary

for adequate presentation of any defects in

those proceedings." People v. Grice, 371 Ill.

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 App. 3d 813, 817, 867 N.E.2d 1143, 1146-47

(2007).

In this case, defense counsel's certificate was as

quoted above.

Defendant argues this certificate fails to comply with

Rule 604(d) in three ways. First, it does not state whether

counsel's consultation with defendant occurred by mail or in

person. Second, it does not state that counsel ascertained

defendant's contentions of error in the entry of the guilty plea

as it only stated he ascertained defendant's "contentions of

error and sentence." Finally, it does not state whether counsel

examined the court file, stating only that counsel examined the

transcript of the plea hearing and sentencing hearing "in the

trial court file."

In determining whether defense counsel complied with

Rule 604(d), the standard of review is de novo. Grice, 371 Ill.

App. 3d at 815, 867 N.E.2d at 1145. Our supreme court has held

that strict compliance with Rule 604(d) is required and a review-

ing court must remand in any case where counsel failed to

strictly comply. People v. Janes, 158 Ill. 2d 27, 33, 630 N.E.2d

790, 792-93 (1994). This court need not take strict compliance

with Rule 604(d) to unreasonable extremes (see People v. Wyatt,

305 Ill. App. 3d 291, 297, 712 N.E.2d 343, 347-48 (1999) (stating

that the certificate need not recite word for word the verbiage

of the rule)). However, this court cannot simply assume or infer

compliance with Rule 604(d) because the strict waiver require-

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ments of Rule 604(d) demand that any issue not raised in the

motion to reconsider the sentence or the motion to withdraw the

plea of guilty is forfeited. 188 Ill. 2d R. 604(d).

In this case, the State argues that the Rule 604(d)

certificate satisfied the consultation requirement by stating

counsel consulted with defendant and the lack of specification

about the mode of contact does not render the certificate insuf-

ficient. Further, the State acknowledges that the certificate

does not specifically state that counsel ascertained defendant's

contentions of error with respect to the entry of the guilty plea

but states the certificate implied such action as the certificate

stated counsel ascertained "the [d]efendant's contentions of

error and sentence." The State also argues that this court can

infer that defense counsel examined the trial court file as the

certificate states that counsel examined the transcripts of the

guilty-plea hearing and sentencing hearing and examined "the

report of proceedings of the plea of guilty."

While the State argues defense counsel probably did

ascertain all of defendant's errors and most likely did look at

the trial court file, we do not know with certainty because

counsel failed to strictly comply with Rule 604(d). The state-

ment that counsel ascertained defendant's contention of "error

and sentence" may have omitted words intending "error in the

guilty plea and sentence" or may have mistyped a word intending

"error in sentence." We cannot be sure therefore whether counsel

ascertained defendant's contentions of error in the guilty plea

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hearing as well as in the sentence.

More troubling is whether counsel read the trial court

file. The certificate acknowledged counsel read the transcripts

of the guilty plea and sentencing hearings "in the court file"

and the "report of the proceedings of the plea of guilty." The

certificate never stated, though, that counsel reviewed the

entire court file. Because counsel stated he reviewed tran-

scripts "in the court file" but never states he "reviewed the

court file," counsel may not have complied with Rule 604(d). In

this case, counsel did not represent defendant until after the

guilty-plea hearing, sentencing hearing, and a series of

posttrial motions had been submitted. If counsel failed to

thoroughly ascertain defendant's contentions or failed to examine

the trial court file, he might have missed an error that would

then be forfeited. We cannot assume counsel complied with Rule

604(d) and must remand because counsel's certificate did not

strictly comply with the requirements in Rule 604(d).

B. Constitutionality of the Extended-Term Statute

Defendant claims the Unified Code of Corrections

(Unified Code) (730 ILCS 5/5-1-1 et seq. (West 2006)) contains

conflicting provisions regarding the applicable sentence for a

Class 4 felony. Specifically, the statute that authorizes

extended-term sentences violates due process because it is in

direct conflict with the mandatory language of the sentencing

provision for Class 4 felonies.

Under section 5-8-1(a)(7) of the Unified Code,

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"[e]xcept as otherwise provided in the statute defining the

offense, a sentence of imprisonment for a felony shall be a

determinate sentence set by the court under this [s]ection,

according to the following limitations: *** (7) for a Class 4

felony, the sentence shall be not less than 1 year and not more

than 3 years." (Emphasis added.) 730 ILCS 5/5-8-1(a)(7) (West

2004). Defendant claims the mandatory language of this section

limits defendant's sentence to three years on both of his Class 4

felony offenses. Defendant, though, was sentenced to five years

and four years for his two Class 4 felonies pursuant to section

5-8-2 of the Unified Code, which provides the following:

"(a) A judge shall not sentence an

offender to a term of imprisonment in excess

of the maximum sentence authorized by [s]ection

5-8-1 for the class of the most serious

offense of which the offender was convicted

unless the factors in aggravation set forth

in paragraph (b) of [s]ection 5-5-3.2 or clause

(a)(1)(b) of [s]ection 5-8-1 were found to be

present. If the pre[]trial and trial pro-

ceedings were conducted in compliance with

subsection (c-5) of [s]ection 111-3 of the

Code of Criminal Procedure of 1963, the judge

may sentence an offender to the following:

* * *

(6) for a Class 4 felony, a

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 term shall be not less than 3 years

and not more than 6 years." 730

ILCS 5/5-8-2(a)(6) (West 2004).

Defendant argues that the extended-term sentencing

provision creates an ambiguous sentencing structure because its

language is in direct conflict with the Class 4 felony sentencing

provision mandating a maximum sentence. For the following

reasons, we disagree.

Section 5-8-1 provides the parameters for felony

sentences and section 5-8-2 authorizes the imposition of an

extended term when certain aggravating factors exist. The

language of the statutes establish that the two sections are to

be read in conjunction with one another not exclusive of one

another. The title of section 5-8-2, "Extended Term," suggests

that in this section the legislature was giving the times that

the set mandatory term should be "extended." The extended-term

section references the set terms in section 5-8-1 and only allows

deviation from section 5-8-1 where certain aggravating factors

are present. In section 5-8-2, the legislature clearly intended

that when an offense is accompanied with the enumerated aggravat-

ing factors, a more significant punishment should apply. The

sentencing structure is not ambiguous as it is clear that section

5-8-1 applies unless enumerated aggravating factors exist that

warrant a greater punishment. Sections 5-8-1 and 5-8-2 do not

conflict and the extended-term provision does not violate due

process.

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 III. CONCLUSION

For the reasons stated, we affirm defendant's sentence

to the extent that the applicable provisions of the Unified Code

do not violate due process; we reverse the trial court's judgment

regarding Rule 604(d) compliance and remand for (1) the filing of

a new postplea motion (if defendant so wishes), (2) a new hearing

on defendant's postplea motion, and (3) strict compliance with

Rule 604(d) requirements. As the State has successfully defended

a portion of the judgment, we award the State its $50 statutory

assessment against defendant as costs of this appeal. People v.

Nicholls, 71 Ill. 2d 166, 174, 374 N.E.2d 194, 197 (1978); see

also People v. Smith, 133 Ill. App. 3d 613, 620, 479 N.E.2d 328,

333 (1985).

Affirmed in part, reversed in part, and remanded with

directions.

STEIGMANN, J., concurs.

TURNER, J., specially concurs in part and dissents in

part.

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 JUSTICE TURNER, specially concurring in part and

dissenting in part:

Although I concur with the majority's decision to

affirm defendant's sentence based on his due-process argument, I

disagree with the order to reverse and remand for compliance with

Rule 604(d). Therefore, I respectfully dissent from that portion

of the majority's order.

In the case sub judice, defense counsel's certificate

sufficiently complied with the requirements of Rule 604(d).

Counsel stated he consulted with defendant to ascertain his

contentions of error, examined the transcripts in the trial court

file of the plea and sentencing hearings and the report of

proceedings of the plea of guilty, and made any amendments to the

motion necessary for adequate presentation of any defects in

those proceedings. While the certificate was inartfully worded,

a verbatim recitation is not required. See Wyatt, 305 Ill. App.

3d at 297, 712 N.E.2d at 347-48. The majority's order, however,

has the effect of requiring such a verbatim recitation of the

rule. I would affirm the trial court's judgment in all other

respects.

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