People v. Albers

ILLINOIS OFFICIAL REPORTS
Appellate Court

People v. Albers, 2013 IL App (2d) 111103

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MICHAEL P. ALBERS, Defendant-Appellant.

District & No. Second District
Docket No. 2-11-1103

Filed June 28, 2013

Held Following defendant’s conviction for aggravated driving under the
(Note: This syllabus influence of alcohol following a negotiated guilty plea, his appeal from
constitutes no part of the denial of his motion for reconsideration of his sentence was dismissed
the opinion of the court on the ground that he failed to move to withdraw his guilty plea as
but has been prepared required by Supreme Court Rule 604(d), since defendant was barred from
by the Reporter of challenging his sentence without moving to withdraw his guilty plea and
Decisions for the the trial court should have struck his motion to reconsider instead of
convenience of the considering the motion on the merits.
reader.)

Decision Under Appeal from the Circuit Court of Lake County, No. 10-CF-2910; the
Review Hon. James K. Booras, Judge, presiding.

Judgment Appeal dismissed.
Counsel on Thomas A. Lilien and Bruce Kirkham, both of State Appellate Defender’s
Appeal Office, of Elgin, for appellant.

Michael J. Waller, State’s Attorney, of Waukegan (Lawrence M. Bauer
and Diane L. Campbell, both of State’s Attorneys Appellate Prosecutor’s
Office, of counsel), for the People.

Panel JUSTICE SPENCE delivered the judgment of the court, with opinion.
Justices Hutchinson and Birkett concurred in the judgment and opinion.

OPINION

¶1 Defendant, Michael P. Albers, entered a negotiated plea of guilty to one count of
aggravated driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(d)(1)(F) (West
2010)) and was sentenced to 10 years’ imprisonment. He moved to reconsider his sentence.
The trial court denied the motion, and defendant appealed. On appeal, he contends that a
remand is required because his trial counsel filed a defective certificate of compliance with
Illinois Supreme Court Rule 604(d) (eff. July 1, 2006). Because Rule 604(d) did not allow
defendant to challenge his sentence without moving to withdraw his guilty plea, and because
defendant failed to comply with this motion requirement, we dismiss the appeal.

¶2 I. BACKGROUND
¶3 On August 12, 2010, defendant, who was driving with a blood alcohol concentration of
0.08 or more, was involved in a fatal car accident. Defendant rounded a curve to the right
into oncoming traffic and collided with another car, killing one person and injuring another.
The grand jury returned an eight-count indictment against defendant, with the charges
ranging from aggravated DUI (625 ILCS 5/11-501(d)(1)(C), (F) (West 2010)) to reckless
homicide (720 ILCS 5/9-3(a) (West 2010)). Public defender Katharine Hatch was appointed
to represent defendant. A short time later, defendant requested to proceed pro se and was
granted leave to do so.
¶4 Defendant ultimately pled guilty to count I of the indictment, which charged aggravated
DUI resulting in the death of another person (625 ILCS 5/11-501(d)(1)(F) (West 2010)), a
Class 2 felony. In return for defendant’s plea, the State dismissed the remaining charges and
recommended a sentencing cap of 10 years’ imprisonment. At the hearing, the trial court
explained to defendant that the sentencing range for the offense was 3 to 14 years, and it
explained the consequences of his plea. Determining that defendant’s plea was voluntary and
intelligent, the trial court accepted the plea.

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¶5 With regard to sentencing, defendant did not proceed pro se but was represented by
attorney Hatch. Following a hearing, the court imposed a 10-year sentence. The court
properly admonished defendant that, should he wish to appeal the judgment, he would need
to file in the trial court a motion to vacate the judgment and for leave to withdraw his guilty
plea. Defendant did not do so. Instead, within 30 days, he filed a pro se motion to reconsider
the sentence.
¶6 The trial court appointed attorney Hatch, who filed a Rule 604(d) certificate stating: “1.
I have consulted with the Defendant, in person[,] to ascertain his/her contentions of error in
the sentence in the above-entitled cause ***. 2. I have examined the trial court file and report
of the proceedings of the plea of guilty. 3. I have made any amendments to the motion
necessary for adequate presentation of any defects in those proceedings.” The certificate did
not state that counsel had consulted with defendant to ascertain his contentions of error in
the entry of the guilty plea.
¶7 The court conducted a hearing on defendant’s motion to reconsider his sentence. Counsel
did not amend defendant’s pro se motion but argued the points defendant had raised. The
court rejected all of defendant’s claims, reasoning that it had considered all of the factors in
aggravation and mitigation when fashioning a sentence and that defendant’s 10-year sentence
was fair. The court noted that it had even commended defendant for getting a “deal” from
the State, because the sentence would have been much more severe otherwise. Defendant
timely appealed the denial of his motion to reconsider his sentence.

¶8 II. ANALYSIS
¶9 On appeal, defendant requests a remand on the ground that his trial counsel’s Rule 604(d)
certificate was defective. A Rule 604(d) certificate has three main requirements, and it is the
first requirement, the consultation requirement, that defendant challenges here. According
to defendant, the certificate was defective because trial counsel stated that she ascertained
defendant’s contentions of error only in his sentence, but not in the entry of his guilty plea.
See Ill. S. Ct. R. 604(d) (eff. July 1, 2006) (requiring a defendant’s attorney in a guilty-plea
case to “file with the trial court a certificate stating that the attorney has consulted with the
defendant either by mail or in person to ascertain the defendant’s contentions of error in the
sentence or the entry of the plea of guilty”).
¶ 10 The State counters that the certificate complied with Rule 604(d) because the rule is
phrased in the disjunctive: counsel is required to consult with the defendant about his
contentions of error in the sentence or in the entry of the guilty plea. The State also argues
that because defendant filed an improper postjudgment motion under Rule 604(d), in that
defendant independently challenged his sentence without moving to withdraw his guilty plea,
he is not entitled to a remand, or to any relief for that matter. We agree with the State’s
second argument and therefore need not resolve whether the certificate complied with Rule
604(d).
¶ 11 The plea at issue here was a negotiated plea in that the State agreed to a sentencing cap.
Under this type of plea agreement, defendant was not allowed to challenge merely his
sentence under Rule 604(d); he was required to file a motion to withdraw his guilty plea and

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 vacate the judgment. See id. (“No appeal shall be taken upon a negotiated plea of guilty
challenging the sentence as excessive unless the defendant, within 30 days of the imposition
of sentence, files a motion to withdraw the plea of guilty and vacate the judgment.”). Our
supreme court in People v. Linder, 186 Ill. 2d 67, 74 (1999), explained that to allow a
defendant to seek reconsideration of his sentence without moving to withdraw his guilty plea
unfairly binds the State to the terms of the plea agreement while giving the defendant the
opportunity to avoid or modify those terms. Rule 604(d) incorporates our supreme court’s
holding that such a strategy is impermissible. Id.
¶ 12 “Ordinarily, the failure to file the appropriate motion under Rule 604(d) results in
dismissal of the appeal.” People v. Green, 375 Ill. App. 3d 1049, 1053 (2007) (citing Linder,
186 Ill. 2d at 74). Defendant recognizes this hurdle and tries to overcome it by relying on
People v. Neal, 403 Ill. App. 3d 757 (2010), a case decided by the Fourth District. As in this
case, the defendant in Neal entered a negotiated guilty plea but moved only to reconsider his
sentence. Id. at 758. The defendant’s counsel in Neal filed a Rule 604(d) certificate, and the
trial court denied on the merits the defendant’s motion challenging his sentence. Id. at 759.
On appeal, the defendant sought a remand on the ground that counsel’s certificate did not
comply with Rule 604(d). Id. The State confessed error and agreed that the case should be
remanded on this basis. Id. at 760. The appellate court likewise agreed that the certificate was
defective and remanded the case for strict compliance with Rule 604(d). Id. at 760-61.
¶ 13 We disagree with the reasoning in Neal, because it violates Rule 604(d) and our supreme
court’s decision in Linder. In Linder, the defendant pled guilty to armed robbery and
aggravated vehicular hijacking, after the State agreed to dismiss the other charges and not
seek a sentence in excess of 15 years’ imprisonment. Linder, 186 Ill. 2d at 69. The trial court
accepted the plea agreement and sentenced the defendant within the agreed-upon range. Id.
As in Neal and the case at bar, the defendant then filed a motion to reconsider his sentence
but not a motion to withdraw his guilty plea. Id. at 69-70. The trial court denied the
defendant’s motion to reconsider his sentence, and the defendant appealed. Id. at 69.
¶ 14 On appeal, the defendant argued that he was entitled to a new sentencing hearing because
his attorney failed to file a Rule 604(d) certificate prior to the hearing on his motion to
reconsider his sentence. Id. Though no Rule 604(d) certificate was ever filed, the State
argued that the absence of the certificate was irrelevant. Id. The State argued that the
defendant would not be entitled to relief on appeal even if such a certificate had been filed,
because he never moved to withdraw his guilty plea. Id. at 70.
¶ 15 The supreme court stated that, by agreeing to plead guilty in exchange for a
recommended sentencing cap, a defendant is, in effect, agreeing not to challenge any
sentence imposed below that cap on the grounds that it is excessive. Id. at 74. Because the
defendant did not move to withdraw his guilty plea and vacate the judgment, as required by
Rule 604(d), the supreme court determined that the trial court correctly refused to reconsider
his sentence. Id. Moreover, the supreme court stated that the appellate court should not have
entertained the defendant’s appeal. Id. Where a defendant fails to comply with the motion
requirement of Rule 604(d), “the appellate court must dismiss the appeal.” Id.
¶ 16 A Fifth District case, People v. DeRosa, 396 Ill. App. 3d 769 (2009), discussed Rule

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 604(d) and Linder at length. The DeRosa court explained that Rule 604(d) contains a
“motion requirement” and a “certification requirement,” and that courts treat the failure to
comply with each requirement differently. Id. at 774. On the one hand, the remedy for a
failure to comply with the certification requirement is a remand to the trial court for a new
motion and a hearing in compliance with the rule. Id. On the other hand, where a defendant
has failed to comply with the motion requirement, the appellate court generally cannot reach
the merits and must dismiss the appeal. Id.
¶ 17 In DeRosa, as in Linder, Neal, and the case at bar, the defendant entered a negotiated plea
but moved only to reconsider his sentence. Id. at 771, 774. Despite no certificate being filed,
the DeRosa court did not remand the case on that basis. Id. at 771. Instead, the court
dismissed the appeal, stating that Linder required such a result. Id. at 780.
¶ 18 We agree with DeRosa, which reached the result mandated by Linder, and disagree with
Neal. Whereas the Neal court remanded the case for lack of compliance with the
“certification requirement,” it should have dismissed the appeal for lack of compliance with
the “motion requirement.” Indeed, the Linder court made clear that, when Rule 604(d)’s
motion requirement is not satisfied, the lack of a certificate is inconsequential. Therefore,
defendant in this case is not entitled to a remand for lack of compliance with the certification
requirement. Because defendant failed to move to withdraw his guilty plea, we are bound to
dismiss the appeal. See Linder, 186 Ill. 2d at 74 (where a defendant fails to comply with the
motion requirement of Rule 604(d), the appellate court must dismiss the appeal, leaving the
Post-Conviction Hearing Act as the defendant’s only recourse).
¶ 19 Going forward, we note that one way to ensure compliance with Rule 604(d)’s motion
and certification requirements is for the trial court to determine whether a defendant’s motion
to reconsider his sentence is properly before it. Had the trial court in this case recognized that
defendant entered a negotiated guilty plea, meaning that he was not allowed to challenge his
sentence without moving to withdraw his guilty plea, then the court could have struck his
motion to reconsider his sentence rather than hearing it on the merits.

¶ 20 III. CONCLUSION
¶ 21 Because defendant violated the motion requirement in Rule 604(d), we dismiss the
appeal.

¶ 22 Appeal dismissed.

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