Filed 8/24/10 NO. 4-10-0124
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
DESMOND TURNER, ) No. 09CF1654
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) 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 September 2009, the State charged defendant, Desmond
Turner, with three counts of aggravated battery committed
September 22, 2009, against a teacher’s assistant (count I), the
school principal (count II), and a teacher at his school (count
III), all Class 3 felonies, based on an incident on the school
grounds wherein the three school employees attempted to break up
an altercation between defendant and another student.
On November 29, 2009, defendant was admonished and
entered an open plea of guilty to count II (720 ILCS 5/12-4(b)(3)
(West 2008)), involving the school principal, and the State
agreed to dismiss the remaining two counts. The factual basis
for the plea was as follows:
"Judge, in this case if called to
testify witnesses would include the named
victim, Mr. McFarling, as well as other
school employees. They would testify that on
September 22, 2009, shortly before 2:00
o’clock in the afternoon they were present at
Pathways School located at 200 South
Frederick in Rantoul. At that time this
defendant and a minor student got into an
argument during PE class. The victims
attempted to separate the parties. At one
point they had the parties separated but the
Defendant pushed through a set of doors to
continue the fight with the other student.
All three victims then got between the
Defendant and the other student, tried to
keep them apart. The defendant pushed and
shoved all three victims until they got him
wrestled to the ground. They held him there
until police arrived."
The court accepted defendant's plea and entered judgment on count
II.
On January 29 2010, the trial court sentenced
defendant, having turned 18 on January 8, 2010, after summarizing
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the background of defendant in cases from Peoria County:
"The Defendant, starting with [No.] 03-
JD-296, in Peoria County, in 03-JD-404, two
separate aggravated[-]battery petitions, was
ordered to serve a sentence of probation,
complete mental[-]health and anger[-]
management counseling and attend school.
Petitions to revoke were filed alleging new
offense of aggravated battery. He admitted
to the allegations, and again, [15] months of
probation, mental[-]health counseling. Then
in [No.] 05-JD-376, another aggravated[-]
battery petition was filed. Same sentence of
probation. Same order for anger management.
Criminal damage in [No.] 05-JD-408. Was
adjudicated on the same date, with the same
directions.
Then in [No.] 08-JD-82, again,
aggravated battery, school employee. Attend
school, complete anger[-]management
counseling, get substance[-]abuse evaluation.
And now, we have this offense, involving more
school employees.
The Defendant has been given numerous
opportunities to hopefully deal with his
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anger issues. ***
The bottom line is, the Court has to
make a determination as to whether or not the
Defendant needs to be incarcerated because
he’s dangerous. He is literally a walking
time bomb and nothing that has been tried
through the Juvenile Court Act has deterred
him at all."
The court sentenced defendant to a 5-year prison term with credit
for 64 days as time served and dismissed the remaining counts.
On February 1, 2010, defense counsel filed a motion to
reconsider sentence. The record on appeal contains an undated,
un-file-stamped Rule 604(d) certificate immediately preceding the
motion to reconsider, stating as follows:
"I, George Vargas, Senior Assistant
Public Defender, appointed counsel for
defendant, pursuant to Supreme Court Rule
604(d), hereby certify that I have consulted
with the defendant in person to ascertain
defendant’s contentions of error in the
sentence; have examined the court file and
the report of proceedings."
At hearing on February 9, 2010, the trial judge stated:
"The Appellate Court literally requires
that the I’s be dotted, the T’s crossed, and
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the 604(d) certificate, the Rule says you
have examined the trial court file and report
of proceedings with the guilty plea. You’ve
got that. And you’ve made any amendments to
the motion necessary for adequate
presentation of any defects in those motions.
This motion was filed by you, and it wasn’t a
pro se motion by the defendant; is that
correct?
[DEFENSE COUNSEL]: Correct, Judge.
THE COURT: I’m going to take a chance
and assume that this will pass muster then by
the Appellate Court."
The docket entries do not show when defense counsel presented the
certificate, although it is mentioned in the court’s February 9
hearing entry. Defendant appealed, and the court appointed OSAD
to represent defendant on appeal the same day.
II. ANALYSIS
OSAD has filed a motion for remand, contending
defendant’s counsel failed to file a certificate strictly
complying with Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)).
The transcript of the guilty-plea hearing shows it was prepared
and dated by the court reporter on February 8, 2010, while the
motion to reconsider was filed February 1, 2010, and the hearing
on the motion was held February 9. Rule 604(d) provides as
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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. *** Upon
appeal any issue not raised by the defendant
in a 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).
OSAD quotes People v. Hopkins, 256 Ill. App. 3d 203, 205, 629
N.E.2d 780, 782 (1994), wherein this court rejected "any
suggestion that examination of the report of proceedings from the
plea of guilty is useless or irrelevant to matters which occur at
sentencing." OSAD states because counsel filed the motion before
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reviewing the report of proceedings of the plea of guilty,
counsel was required to certify he made any amendments to the
motion necessary for adequate presentation of any defects in the
proceedings, as "[w]ithout counsel’s certification there is no
assurance that any errors which occurred during the guilty[-]plea
proceedings were incorporated into [defendant’s] motion to
reconsider sentence. See People v. Prather, 379 Ill. App. 3d
763, 768, 887 N.E.2d 44, 47 ([4th Dist.] 2008) (noting the [Rule]
604(d) compliance cannot be presumed)." OSAD further asserts:
"By omitting this affirmation, counsel’s
certificate also fails to strictly comply
with the requirements of Supreme Court Rule
604(d). People v. Dismuke, 355 Ill. App. 3d
606, 609, 823 N.E.2d 1131, 1134 ([2d Dist.]
2005) ([']Rule 604(d) sets forth the duties
of a defense counsel and provides a simple,
straightforward, and mandatory procedure
designed to insure that those duties are
performed[']); People v. Cloyd, 397 Ill. App.
3d 1084, [1089, ___ N.E.2d ___, ___] ([4th
Dist.] 2010) (finding attorney’s certificate
insufficient for failing to certify that he
had reviewed the report of proceedings of the
plea of guilty even though counsel was
present for the hearing)."
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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 Prather, 379 Ill. App. 3d at 769, 887 N.E.2d at
47-48. The State concedes error, quoting the certificate
requirements this court stated in People v. Grice, 371 Ill. App.
3d 813, 817, 867 N.E.2d 1143, 1146-47 (2007), and we agree.
The record suggests defense counsel had not read the
report of proceedings when he filed the the motion to reconsider
on February 1, as the court reporter did not certify it until
February 8. The record does not show precisely when defense
counsel prepared the purported Rule 604(d) certificate. We again
emphasize the following: (1) supreme court rules are meant to be
followed, as written, and are not mere suggestions or guidelines
from which deviations may be made; (2) postplea motions have real
consequences for each guilty-plea defendant as the rule expressly
provides any issue not included in the postplea motion is
forfeited; and (3) the rule requirements are there to ensure the
best chance defense counsel will note and include any issue in
reviewing the transcripts of the hearings, so as not to rely on
memory alone or lesser records. In Grice, this court stated it
will not examine the record to determine whether defense
counsel’s conduct satisfied the rule’s requirements but will look
to the certificate itself. Grice, 371 Ill. App. 3d at 816, 867
N.E.2d at 1146. We hold because the record shows counsel filed
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his motion before reviewing the report of proceedings of the plea
of guilty, counsel was required to certify he made any amendments
to the motion necessary for adequate presentation of any defects
in the proceedings.
III. CONCLUSION
Accordingly, we grant OSAD's motion and remand the
cause for the appointment of counsel, the filing of a new motion
to reconsider sentence, a new hearing on the motion, and strict
compliance with Rule 604(d) in the filing of any future
certificates under the rule.
Remanded with directions.
POPE and McCULLOUGH, JJ., concur.
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