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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