People v. Neal

Filed 9/10/10 NO. 4-10-0381

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
DON D. NEAL, ) No. 07CF696
Defendant-Appellant. )
) Honorable
) Michael D. Clary,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:

This appeal comes to us on the motion of defendant's

counsel, the office of the State Appellate Defender (OSAD), for

remand for strict compliance with Supreme Court Rule 604(d) (210

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

I. BACKGROUND

In August 2009, defendant, Don D. Neal, entered a

partially negotiated guilty plea in No. 07-CF-696 to having

committed aggravated battery (great bodily harm) (720 ILCS 5/12-

4(a) (West 2006)) (count II), a Class 3 felony, against

Dantonette Wallace on November 10, 2007, by striking her in the

face during a verbal altercation in the courtyard area of 905

Redden Court, whereupon she fell to the ground and hit a light

post, breaking her shoulder blade. The State dismissed a

misdemeanor count of aggravated assault and a Class III felony

count of aggravated battery (public way) based on the same

conduct, a count of unlawful possession of a weapon by a felon

based on the same incident (investigation disclosed no weapon was

involved), and charges in No. 07-CF-737 alleging conduct
occurring on November 4 but actually premised on the conduct

underlying this case. Absent the plea agreement, defendant was

eligible for a 10-year extended term based on his prior criminal

history.

On March 3, 2010, the trial court sentenced defendant

to a 4-1/2-year prison term with credit for 121 days' time

served. The court properly admonished defendant under Rule

605(c) (210 Ill. 2d R. 605(c)) that in order to appeal, defendant

must first file a motion to withdraw guilty plea.

On March 10, 2010, defendant filed a motion to

reconsider sentence. On April 19, 2010, defense counsel Derek J.

Girton filed a certificate averring compliance with Rule 604(d),

stating as follows:

"4. Counsel for defendant has now had

an opportunity to meet with him in person at

the Vermilion County Courthouse and discussed

the issues raised in the motion to reconsider

sentence.

5. Defense counsel has examined all

relevant documents regarding the defendant's

sentencing including, but not limited to the

transcript of the sentencing hearing and the

presentence investigation." (Emphasis

added.)

On May 17, 2010, Judge Michael D. Clary heard the motion, denied

it on the merits, and readmonished defendant under Rule 605(c).

This appeal followed, and OSAD has been appointed to represent

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defendant on appeal.

II. AVERRING REVIEW OF DOCUMENTS "INCLUDING BUT NOT LIMITED TO"
SENTENCING TRANSCRIPT AND PRESENTENCE INVESTIGATION DOES NOT
FULFILL RULE 604(d) REQUIREMENTS

OSAD has filed a motion for summary remand, contending

that defendant’s counsel failed to file a certificate strictly

complying with Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)).

Specifically, counsel failed to certify that he examined the

report of proceedings of the August 2009 proceeding wherein

defendant admitted his guilt in this case, that is, the

transcript of the guilty-plea hearing. Rule 604(d) provides as

follows:

"(d) Appeal by Defendant From a Judgment

Entered Upon a Plea of Guilty. *** The

defendant's attorney shall file with the

trial court a certificate stating that the

attorney [(1)] has consulted with the

defendant either by mail or in person to

ascertain defendant's contentions of error in

[(a)] the sentence or [(b)] the entry of the

plea of guilty, [(2)] has examined the [(a)]

trial court 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." (Emphasis

added.) 210 Ill. 2d R. 604(d).

We note the certificate requirements are a single sentence of

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Rule 604(d). Brackets were added above to break out the

elements. This court summarized these elements in its 2007

opinion in People v. Grice, 371 Ill. App. 3d 813, 817, 867 N.E.2d

1143, 1146-47 (2007).

Defense counsel referenced neither reviewing the

guilty-plea-hearing transcript nor consulting with his client

about his contentions of error in the entry of the guilty pleas.

Instead, he states he examined the report of the sentencing

hearing and discussed with defendant the issues raised in the

motion to reconsider sentence. OSAD asserts while defense

counsel avers he reviewed documents "including but not limited

to" the sentencing transcript and presentence investigation,

counsel clarifies this by noting he reviewed documents relevant

to sentencing.

OSAD claims defendant is entitled to remand for the

filing of a new postplea motion under the controlling precedent

of People v. Janes, 158 Ill. 2d 27, 33, 630 N.E.2d 790, 792

(1994). See also People v. Prather, 379 Ill. App. 3d 763, 769,

887 N.E.2d 44, 47-48 (2008) (Fourth District). The State

responds defendant should not have been allowed to directly

challenge the sentence imposed on a partially negotiated plea

(see People v. Diaz, 192 Ill. 2d 211, 225, 735 N.E.2d 605, 612

(2000); People v. Spriggle, 358 Ill. App. 3d 447, 455, 831 N.E.2d

696, 703 (2005) (Second District)), but Judge Clary addressed the

motion on the merits, and defendant now appeals this ruling. The

State agrees trial counsel's certificate is deficient due to its

failure to state defense counsel examined the court file and a

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transcript of the guilty-plea hearing. See People v. Fitzgibbon,

184 Ill. 2d 320, 323-24, 704 N.E.2d 366, 368 (1998). The State

concedes the cause should be remanded, and we agree.

The question of whether defense counsel complied with

Rule 604(d) is subject to de novo review. People v. Johnson, 363

Ill. App. 3d 356, 359, 843 N.E.2d 434, 437 (2006), rev'd &

remanded on other grounds, 225 Ill. 2d 573, 870 N.E.2d 415

(2007), citing People v. Lloyd, 338 Ill. App. 3d 379, 384, 788

N.E.2d 1169, 1173 (2003); see also Grice, 371 Ill. App. 3d at

815, 867 N.E.2d at 1145.

The certificate itself is all this court will consider

to determine compliance with Rule 604(d). Grice, 371 Ill. App.

3d at 816, 867 N.E.2d at 1146. The certificate must show

defendant’s "attorney has examined the report of proceedings of

the plea of guilty." Grice, 371 Ill. App. 3d at 817, 867 N.E.2d

at 1147. Our supreme court was not unclear in Janes. Strict

compliance is required. People v. Pressey, 357 Ill. App. 3d 887,

890-91, 829 N.E.2d 426, 430 (2005).

This said, we may consider the record where it

undermines the certificate filed. The record on appeal shows on

June 9, 2010, the circuit clerk filed OSAD's June 4, 2010, letter

request for preparation of the transcripts. Insofar as the

record before us shows, the sentencing transcript was not

prepared by the court reporter in this case until July 19, 2010.

The manifest purpose of reviewing a transcript of the

guilty-plea proceeding is to permit defense counsel the

opportunity to review and reflect upon the events as they

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transpired, with a fresh eye, rather than through memory alone.

The final sentence of Rule 604(d) expressly provides: "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." 210 Ill. 2d R. 604(d).

The preparation of this postplea motion is thus significant to a

defendant. The particulars of the certificate requirements both

give meaning to a defendant’s right to appeal and assist defense

counsel in fulfilling counsel’s duties to his or her client to

the best of his or her ability.

Our supreme court has stated the following:

"The [certificate’s] filing should precede or

be simultaneous with the hearing in the trial

court. Such a procedure will insure that the

trial court, in considering a defendant’s

motion to withdraw his or her guilty plea or

to reduce sentence, will be apprised that

defense counsel has reviewed the proceedings

with the defendant and prepared any necessary

amendments to the motion." People v.

Shirley, 181 Ill. 2d 359, 371, 692 N.E.2d

1189, 1195 (1998).

Moreover, in Grice, this court stated the following:

"Although the responsibility for

drafting a proper Rule 604(d) certificate

lies initially with defense counsel, trial

courts can, and should, play an important

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 role in preventing the waste of judicial

resources that occurs when we must address on

appeal the validity of a Rule 604(d)

certificate. Trial courts possess the power

--and the duty--to examine any Rule 604(d)

certificate when filed to determine whether

it complies with that rule. Trial courts

should reject those certificates that do not

comply, and when doing so, instruct counsel

to file another certificate in accordance

with all of the requirements of Rule 604(d).

If trial courts follow these suggestions, the

terrible waste of judicial resources that now

occurs, as here, due to defective Rule 604(d)

certificates should cease." Grice, 371 Ill.

App. 3d at 816, 867 N.E.2d at 1146.

III. CONCLUSION

Accordingly, we grant OSAD's motion and remand the cause

for further proceedings consistent with Rule 604(d), that is, the
appointment of counsel, the filing of a new motion to withdraw

guilty plea or to reconsider sentence, a new hearing on the

motion, and for strict compliance with Rule 604(d) in the filing

of any certificate under the rule.

Remanded with directions.

STEIGMANN and POPE, JJ., concur.

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