People v. Grigalanz

2022 IL App (4th) 210468
FILED
NO. 4-21-0468 June 27, 2022
Carla Bender
IN THE APPELLATE COURT 4th District Appellate
Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Jersey County
PHILLIP S. GRIGALANZ, ) No. 15CF188
Defendant-Appellant. )
) Honorable
) Allison Lorton,
) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices DeArmond and Holder White concurred in the judgment and opinion.

OPINION

¶1 In February 2018, defendant, Phillip S. Grigalanz, appealed the trial court’s order

denying his motion to withdraw guilty plea. On appeal, we found defendant’s counsel had failed

to strictly comply with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017), and we remanded

for strict compliance with the rule’s requirements, which included the opportunity to file a new

motion and a hearing on that motion. See People v. Grigalanz, 2020 IL App (4th) 180313-U,

¶¶ 1, 10.

¶2 On remand, defendant, through new appointed counsel, filed an amended motion

to withdraw guilty plea, arguing the trial court failed to substantially comply with Illinois

Supreme Court Rule 402 (eff. July 1, 2012) before accepting his guilty plea. The trial court
denied defendant’s motion, finding defendant had “waived” the Rule 402 argument by failing to

include it in his initial motion to withdraw guilty plea.

¶3 Defendant appeals, arguing the trial court erred in denying his motion “where the

record shows that the court failed to substantially comply with Rule 402(a) when it erroneously

admonished him that he would only have to serve three years of mandatory supervised release

when, in fact, he was required to serve three years to life of mandatory supervised release.” We

vacate the trial court’s judgment and remand for further proceedings.

¶4 I. BACKGROUND

¶5 A. The Guilty Plea and Sentencing

¶6 In November 2017, defendant pleaded guilty to the offense of child pornography

(720 ILCS 5/11-20.1(a)(1)(vii), (c-5) (West 2014)). Prior to accepting defendant’s guilty plea,

the trial court admonished him regarding the applicable sentencing range:

“It’s a Class X felony, six to 30 years in the Illinois Department of

Corrections with a mandatory supervised release, like parole, of three

years. This is [a] non-probationable offense which if you plead guilty or

[are] found guilty the only sentence is a sentence to the Department of

Corrections with a fine of up to $100,000.00.”

At the outset of the sentencing hearing, the court noted defendant had pleaded guilty to child

pornography, “which is a Class X felony. Six to 30 years in the Illinois Department of

Corrections, with a mandatory supervised release, like parole of three years. Probation,

conditional discharge is not available.” The court ultimately sentenced defendant to 17 years’

imprisonment “with a mandatory supervised release, like parole, of three years with credit for

time served.”

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¶7 B. Initial Motion to Withdraw Guilty Plea and Appeal

¶8 In December 2017, defendant timely filed a pro se motion to withdraw his guilty

plea and vacate sentence, in which he requested “that the matter be reset for trial (allowing

sufficient time for compulsory process of newly discovered evidence).” At a hearing conducted

on January 9, 2018, the following exchange occurred between defendant and the court:

“THE COURT: It was learned by the State[’]s Attorney’s Office and your

attorney that you weren’t properly admonished as to the mandatory supervised

release and so the reason you were writted back so we could share that with you.

Let you know what the actual MSR is. You were told it was three years. It is

actually three years to life. Did you understand that at the time?

DEFENDANT: No, I did not.

THE COURT: Okay. So I’m explaining that to you now. You understand

that now?

DEFENDANT: Yes sir.

THE COURT: Okay. You also filed a [p]etition to [w]ithdraw [y]our

[p]lea.

DEFENDANT: Yes Your Honor.

THE COURT: And [v]acate the [s]entence. Do you wish to proceed on

that?

DEFENDANT: Yes I do Your Honor. I left it pretty vanilla at the time.

I’ve learned—well I’ve legally discovered new evidence from several different

avenues that would have exculpated me had I gone to trial.

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 THE COURT: Given the fact that you filed this pro se, I’m gonna give

your attorney leave to discuss whatever issues you think you may have in terms of

withdrawing your plea and then set this for further hearing about 30 days down

the road. Do you understand that?

DEFENDANT: Yes Your Honor.

THE COURT: Okay. I’ll allow him to prepare a more formal [p]etition

based upon his conversation with you.

DEFENDANT: We may or may not need something a little bit formal to

assist with Graham Correctional Facility facilitating communication between

myself and my attorney. I have tried that and it has failed miserably.

THE COURT: I’m gonna allow you to have a conversation with him right

now. Yeah before you leave so that way he can get all the necessary information

that he may need to put together a formal motion to withdraw your plea.”

¶9 Defense counsel did not file an amended motion to withdraw guilty plea or a Rule

604(d) certificate of compliance. On February 26, 2018, the trial court conducted a hearing on

defendant’s motion. The court noted at the beginning of the hearing that defendant’s motion did

not “give any basis” for his request to withdraw his guilty plea. The court asked defense counsel

if he had been able to speak with defendant about the motion, and defense counsel answered in

the affirmative. The following exchange then ensued:

“THE COURT: There’s really—here’s the problem is that there’s nothing

in it. He doesn’t say he wasn’t [properly] admonished. He doesn’t say that he

didn’t understand the charges or the possible penalties. He didn’t raise any factual

issues to why he should be permitted to withdraw his plea. And that’s why I

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 suggested that you consult with him so that you could fashion a Motion and what

you’re telling me is based upon your conversations with him there are no

additional facts that you’re aware of based on your conversations with him, that

should be added to the Motion?

MR. PARISH [(DEFENSE COUNSEL)]: That is correct.

THE COURT: Okay.

DEFENDANT: There haven’t been sufficient conversations. I instructed

you to contact me during the—in the interim, this never occurred. I have made as

many as 92 phone calls to the offices. I have not received one answer. This

reproduces experiences of Jersey County Jail where I continually called the

offices and did not receive answers. We’re talking about information that’s over

24 months old, but I instructed my attorney to subpoena these back in June of last

year. One of my issues that I’m addressing with asking the court to dismiss Mr.

Parish [as] counsel is—.”

The trial court interrupted defendant and proceeded to conduct a Krankel inquiry. See People v.

Krankel, 102 Ill. 2d 181 (1984). Defendant explained counsel had not subpoenaed certain

telephone records despite numerous requests that he do so. The court ultimately concluded

counsel had not been ineffective and denied defendant’s motion to withdraw guilty plea.

¶ 10 Defendant appealed the denial of his motion to withdraw guilty plea, arguing

“(1) defense counsel failed to strictly comply with Illinois Supreme Court Rule

604(d) (eff. July 1, 2017), (2) the trial court failed to substantially comply with

Illinois Supreme Court Rule 402(a) (eff. July 1, 2012), or, alternatively,

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 (3) defense counsel was ineffective for failing to amend defendant’s motion to

withdraw his guilty plea.” Grigalanz, 2020 IL App (4th) 180313-U, ¶ 2.

We accepted the State’s concession with respect to defendant’s Rule 604(d) argument and

remanded for strict compliance with the rule’s requirements. Id. ¶ 1. We did not reach the merits

of defendant’s remaining arguments. Id. ¶ 11. In remanding the cause for further postplea

proceedings, we quoted the supreme court, stating that the proper remedy when counsel fails to

file a Rule 604(d) certificate “ ‘is a remand for (1) the filing of a Rule 604(d) certificate; (2) the

opportunity to file a new motion to withdraw the guilty plea and/or reconsider the sentence, if

counsel concludes that a new motion is necessary; and (3) a new motion hearing.’ ” Id. ¶ 10

(quoting People v. Lindsay, 239 Ill. 2d 522, 531 (2011)).

¶ 11 C. Proceedings on Remand

¶ 12 On remand, defendant, through new appointed counsel, Donald Schaaf, filed an

amended motion to withdraw guilty plea. Defendant argued the trial court failed to substantially

comply with Illinois Supreme Court Rule 402(a)(2) (eff. July 1, 2012), when it incorrectly

admonished him that he only faced a three-year term of MSR. As a result, defendant maintained,

he did not enter his guilty plea intelligently and with full knowledge of its consequences.

¶ 13 Following a hearing in August 2021, the trial court entered a written order

denying defendant’s motion, stating, in relevant part:

“In this case, the Defendant, who at the time was represented by counsel,

had an opportunity to raise MSR admonishment issue [sic] after he was

properly admonished on January 9, 201[8], to which he failed. Although,

counsel for the Defendant f[a]iled to file the 604(d) certification, the

Defendant’s grounds to vacate his plea centered around his attorney[’]s

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 failure to investigate other evidence. (Transcript of Hearing February 26,

2018). The court finds the issue waived therefore the Defendant’s

Amended Motion to Withdraw Guilty Plea and Vacate Sentence is

denied.”

¶ 14 This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 Defendant argues the trial court erred in denying his motion to withdraw guilty

plea because the record establishes the court failed to substantially comply with Rule 402 when it

improperly admonished him regarding the applicable MSR term. The State contends the court

was correct in finding defendant had forfeited his Rule 402 claim. Alternatively, the State

acknowledges that our previous order may have been “intended to allow defendant to file an

amended motion to withdraw and directed the trial court to conduct a hearing on the merits of the

issues raised therein.” However, the State contends that this is only one of multiple possible

interpretations and “seeks further clarification of this Court’s prior order.”

¶ 17 As an initial matter, we note that although the trial court found defendant had

“waived” his Rule 402 claim, it appears, given its comments, the court actually found defendant

had “forfeited” the claim. See People v. Lesley, 2018 IL 122100, ¶¶ 36-37 (explaining “waiver is

an intentional relinquishment or abandonment of a known right or privilege” and “[f]orfeiture is

defined as the failure to make the timely assertion of [a] right”). Thus, we will address below

whether the court properly found a forfeiture.

¶ 18 We next clarify the issue on appeal and the proper standard of review.

Defendant’s brief focuses on the merits of his Rule 402 claim and notes that when the trial court

“reaches the merits of a motion to withdraw a guilty plea,” we review the court’s decision for an

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abuse of discretion. On the other hand, the State focuses its brief on the question of whether the

court was correct in finding defendant had forfeited his claim and does not address the claim’s

merits. We agree with the State that the issue on appeal is the propriety of the court’s finding of a

forfeiture. The trial court did not address the merits in denying defendant’s Rule 402 claim.

Instead, the court denied defendant’s claim on the ground it had been procedurally defaulted, i.e.,

forfeited. Thus, the question to resolve in this appeal is whether the court was correct in finding

defendant had forfeited his Rule 402 claim by failing to raise it in his initial motion to withdraw

the guilty plea. This presents a question of law that is reviewed de novo. See, e.g., People v.

Herron, 215 Ill. 2d 167, 174 (2005).

¶ 19 Rule 604(d) governs the procedure a defendant must follow if he wishes to appeal

from a judgment entered upon a plea of guilty. In re H.L., 2015 IL 118529, ¶ 7. It requires the

defendant to file a motion to withdraw the guilty plea, and if the defendant is indigent, the trial

court shall appoint counsel. See Ill. S. Ct. R. 604(d) (eff. July 1, 2017). Rule 604(d) also requires

the following:

“The defendant’s attorney shall file with the trial court a certificate stating

that the attorney has consulted with the defendant *** to ascertain

defendant’s contentions of error in the sentence and the entry of the plea

of guilty, has examined the trial court file and both the report of

proceedings of the plea of guilty and the report of proceedings in the

sentencing hearing, and has made any amendments to the motion

necessary for adequate presentation of any defects in those proceedings.”

Id.

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“Because of the strict [forfeiture] requirements of Rule 604(d) (any issue not raised by the

defendant in his motion to withdraw his guilty plea is deemed [forfeited]), fundamental fairness

requires that the defendant have the assistance of counsel in preparing and presenting his

motion.” People v. Dickerson, 212 Ill. App. 3d 168, 171 (1991). “Rule 604(d) sets forth defense

counsel’s duties in this regard and provides a simple, straightforward[,] and mandatory procedure

designed to insure that those duties are performed and, thus, that defendant’s due process rights

are protected.” (Emphasis omitted.) Id.

¶ 20 Defense counsel must strictly comply with Rule 604(d)’s certification

requirement. H.L., 2015 IL 118529, ¶ 8. When counsel fails to comply with Rule 604(d), “the

appropriate remedy is a remand for (1) the filing of a Rule 604(d) certificate; (2) the opportunity

to file a new motion to withdraw the guilty plea ***, if counsel concludes that a new motion is

necessary; and (3) a new motion hearing.” Lindsay, 239 Ill. 2d at 531. “It is axiomatic that, when

this court remands a cause for the filing of a new motion (if necessary) and a hearing on a new

motion, the order that is the subject of the appeal is vacated.” People v. Bernard, 2014 IL App

(2d) 130924, ¶ 10. “A vacated judgment is nullified, canceled, and void.” Id.

¶ 21 Here, the trial court denied defendant’s motion to withdraw the guilty plea on the

basis that he “had an opportunity to raise [the] MSR admonishment issue after he was properly

admonished on January 9, 201[8],” but he failed to do so. We find this was error.

¶ 22 In our remand following initial postplea counsel’s failure to file a Rule 604(d)

certificate, we directed the trial court to give defendant the opportunity to file a new motion and

conduct a new motion hearing. See Grigalanz, 2020 IL App (4th) 180313-U, ¶ 10. However, by

finding defendant had forfeited any claim that was not raised in his initial motion, the court

deprived defendant of the substance of the appeal remedy, which, in part, allowed him to file a

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new motion. We did not restrict defendant to asserting only those claims he had raised in his

initial motion. When a court’s order denying a motion to withdraw guilty plea is vacated on

appeal due to an attorney’s Rule 604(d) violation, the proceedings below recommence at the

stage where the error occurred—that is, the point where appointed counsel is required to perform

the duties prescribed by the rule. As previously stated, one of the attorney’s duties under Rule

604(d) is to make “any amendments to the motion necessary for adequate presentation of any

defects in those proceedings.” Ill. S. Ct. R. 604(d) (eff. July 1, 2017). Neither Rule 604(d) itself

nor the case law interpreting it restricts a defendant, after a remand from the appellate court, to

asserting only those claims he had previously raised.

¶ 23 Additionally, it would be fundamentally unfair to find a forfeiture here. As the

trial court noted in its written order, defendant was represented by counsel on January 9, 2018—

which was after he pleaded guilty and after he filed his initial pro se motion to withdraw guilty

plea—when the court informed him that he had been improperly admonished regarding MSR.

Because he was thereafter represented by counsel, defendant did not have the authority to raise

the improper admonishment claim on his own. See, e.g., People v. Serio, 357 Ill. App. 3d 806,

815 (2005) (“When a defendant is represented by counsel, he generally has no authority to file

pro se motions, and the court should not consider them.”). However, defendant’s counsel, despite

being aware defendant had received improper admonishments, failed to file an amended motion

raising the Rule 402 claim. Ultimately, defendant could not raise the issue himself due to being

represented, and his counsel failed to assert the claim. Under the circumstances, it would be

fundamentally unfair to find that defendant forfeited his Rule 402 claim.

¶ 24 Accordingly, we find the trial court erred in determining defendant forfeited his

Rule 402 claim. As a result, we vacate the trial court’s judgment and remand for a new hearing

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on defendant’s amended motion to withdraw guilty plea. See People v. Wilk, 124 Ill. 2d 93, 104

(1988) (“The trial court is the place for fact finding to occur and for a record to be made

concerning the factual basis upon which a defendant relies for the grounds to withdraw a guilty

plea. If the motion to withdraw the plea is denied, that decision can be considered on review.”).

¶ 25 III. CONCLUSION

¶ 26 For the reasons stated, we vacate the trial court’s judgment and remand for further

proceedings.

¶ 27 Vacated and remanded.

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 2022 IL App (4th) 210468

Decision Under Review: Appeal from the Circuit Court of Jersey County, No. 15-CF-188;
the Hon. Allison Lorton, Judge, presiding.

Attorneys James E. Chadd, Catherine K. Hart, and Simone A. Patras, of State
for Appellate Defender’s Office, of Springfield, for appellant.
Appellant:

Attorneys Benjamin Goetten, State’s Attorney, of Jerseyville (Patrick
for Delfino, David J. Robinson, and Timothy J. Londrigan, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.

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