## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Marquez , 2012 IL App (2d) 110475

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. ROY MARQUEZ , Def

endant- Appellant.

District & N o. Second District Docke t No. 2-11-0475

Filed September 14, 2012

Held (Note : Thi s syl lab us
con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e
c o n v e n i e n c e o

f t h e
rea der

. ) When a defe ndant rene ws a premature motion under Supreme Court Rule 604(d), his counsel must file a second cer ti fi ca t e i n order to strictly comply with Rule 604(d); there fore
, in the absenc e of a proper cer tificate from defe ndant’s attorney , the order denying defe nd an t ’s motion to withdraw his guilty plea was vacated and the cause was rema nded for the filing of a valid cer

tificate, an o pportunity to file a new motion, if

nece ssary , and a ne w hea ring

.

Dec ision Under Review Appea l from the Circuit C o u rt of L ake County , No. 09-CF- 2608; the Hon. J ohn T. Phill ips, J udg e, pre siding.

J udg ment Vac ated a nd rema nded.Counsel on

Appea l Thomas A. L ilien and Paul Alexander Roge rs, both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

Michae l J . Waller, State’s Att orney , of W aukeg an (L awr ence M. Ba uer and Richard S. L ondon, both of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for

the People.

Panel J USTI CE BURKE de livered the judgme nt of the cour t, with opinion. J ustices Z enoff

and Hudson c oncurr ed in the judgment and opinion.

OP INION

¶ 1 Def

endant, Roy Marque z, appea ls from an order of t h e ci rc u i t court of L ake County denying his motion to withdraw his plea under North Carolina v. Alford
, 400 U.S. 25 (1970), t o a single count eac h of predatory criminal sexual assault of a child (720 I L CS 5 / 1 2

- 14.1(a) (1) (West 2000)) and ag g ravated criminal sexual abuse (720 I L C S 5/12-16(c) (1)( i) (West 2000)). Be cause defe ndant’s attorney did not proper ly cer tify compliance with I llinois Suprem e C o u rt Rule 604(d) (eff

. J uly 1, 2006), we rema

nd for procee dings in compliance with that rule. ¶ 2 The pertinent fac ts require only a brief summary

. In exchang e for defe ndant’s Alford plea to the char g es desc ribed a bove, additional cha

rg es ag ainst defe ndant wer e nol-prossed and the S tate agr eed that the aggreg ate length of defe ndant’s prison terms for t h e two offe nses would not exceed 25 y ear s. Prior to sentenc ing, defe ndant filed a motion to withd raw his plea, arguing, inter alia
, that his attorney s had not explained the extent t o wh i ch h i s plea would limit appellate revie w. Def endant’ s attorney s wer e permitted to withdraw and a new attorney was appointed to repr esent defe ndant. Following an evidentiar y hear ing, the trial court denied the m otion and defenda nt later moved, uns u cce ssfully
, for reconsider ation of the trial court’s order

. The trial court sentenc ed defe ndant to consec utive prison terms of 21 y ear s for predatory criminal sexual assault and 3 y ear s for ag g ravated criminal sexual abuse. The c ourt admonished def endant that, if he wished to a ppeal, he would need to f ile, within 30 day s, a written motion to withdraw his plea

. Def endant’ s attorney moved, yet ag ain, for

rec onsideration of the denial of defe ndant’s previous motion to withdraw his plea. The court d ee med the motion for rec onsideration to be a motion to withdraw defe ndant’s pl ea

. T h e court de nied the motion, and this appea l followed. ¶ 3 Rule 604(d) provide s, in pertinent par t, as follows: “N o appea l from a judgme nt enter ed upon a plea of guilty shall be taken unles s t h e defe ndant, within 30 day s of the date on which sentenc e is imposed, files in the trial court a mot ion to rec onsider the sentenc e, i f o n l y t h e sentenc e is being challeng ed, or, if the

-2-plea is being challeng ed, a motion to withdraw the plea of guilty an d vaca te the judgme nt. No appea l shall be taken up on a neg otiated plea of guilty challeng ing the sentenc e as excessive unless the defe ndant, within 30 day s of the imposit ion of sentenc e, files a motion to withdraw the plea o f guilty and vacate the judgme nt. For purposes of this rule, a neg otiated plea of guilty is one in which the prosec ution has bound itself to

rec ommend a specific sentenc e, or a specific rang e of sentenc e, or wher e the prosec ution has made conce ssions rela ting to the sentenc e to be imposed and not mere ly to the char g e
or char g es then pending

. *** The trial court shall *** deter mine whether the defe ndant is r epre sented by

counsel, a

nd if the def

endant is indig ent and de sires counse l, the trial court shall appoint counse l. *** The defendant’s attorney shall fi le with the trial

court

a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain defendant’s contentions of error in the sentenc e or the entry of the plea of guilty, has exam ined the trial court file and report of procee dings of the plea of guilty, and has made any amendme nts to the motion nece ssary for adequate presentation of any defec ts in those procee dings .” (Emphasis added.) I ll. S. Ct. R. 604(d) (ef f. J uly 1, 2006). ¶ 4 It is well established that “[d] efe nse counsel must strictly comply with Ru l e 6 0 4 (d)’s

cer tificate require ment, and, whe n counsel fa ils to do so, the case must be rema nded to the trial court for proce eding s in compliance with the rule.” People v. Love , 385 I ll. App. 3d 736, 737 (2008). In this case, defenda nt filed t wo m otions to wit hdrawhis guilty plea. The first

was filed befor e defe ndant was sentenc ed, and defe ndant’s attorney filed a cer tificate in the pro p er form with respe ct t o that motion. Howeve r, a motion filed prior to sentenc ing does not comply with Rule 604(d) and will not give rise to a right to appeal from the j udg ment. P eo p l e v. Ramage , 229 I ll. App. 3d 1027, 1030-31 (1992). The defe ndant must rene w t h e premature motion in order to prese rve the rig ht to appea l. Id. Her e, defe ndant did essentially that by moving for rec onsidera t i o n o f the denial of the premature motion. The trial court deeme d the m o t i o n fo r rec onsideration to be a new motion to withdraw, but defe ndant’s attorney did not file a new cer tificate of compliance under Rule 604(d). Instead, defe ndant’s attorney filed a cer

tificate of compliance with I llinois Supreme Court Rule 651 (ef f. Dec

. 1, 1 9 84), which perta ins to the duties of an attorney repr esenting a criminal defe nd an t i n proce eding s under the Post-Convi ction Hea ring Act (725 I L CS 5/122-1 et seq. (West 2010)). There appea

rs to be no dispute that the cer tificate did not strictly comply with Rule 604(d). W er e that the onl y cer

tificate of counsel in the record on appea l, it would be clear that the

case would have to be rema nded to the trial court. T h e co n t ro lling question in this case is whether the cer

tificate filed befor e defe ndant was sentenc ed–in connec tion with his premature motion to withdraw his plea–c omplied with Rule 604(d). Stated differ ently
, when

a defe ndant rene ws a premature Rule 604(d) motion, must his or her attorne y file a se cond Rule 604(d) cer

tificat e? I n P eople v. Sawyer , 258 I ll. App. 3d 174 (1994), we held that a second cer

tificate is unnece ssary

. We now conclude
, ho wever, that Sawyer was decide d incorre ctly

and we decline to f

ollow its hol ding. ¶ 5 In Sawyer , we r easone d as follows:

“The languag e of [Rule 604(d)] contemplates that, beca use the motion to withdraw the guilty plea is proper ly a post-judgme nt motion, the filing of the cer tificate normally will

-3-not occur until afte r the sentenc e has been imposed. Howeve r, the rule does not expli citly state that the cer

tificate must be filed with the trial co urt only afte r imposit ion of sentenc e. Where a proper cer tificate is alre ady on file as of the post-judgme nt motion, the rule’s require ment that ‘[t] he defe ndant’s attorney shall fi l e wi th the trial court a
cer tificate’ [citation] has bee n satisfied.” Id. at 178. ¶ 6 It appea

rs, howeve r, that in People v. Shirley
, 181 I ll. 2d 359, 371 (1998), our supre me court was unimpressed with this line of rea soning, which the appellate court in Shirley had extended to case s wher e a cer tificate is filed afte r a ruling on the motion ( People v. Shirley
, 284 I ll. App. 3d 734, 738 (1996))

. J ust as there is no explicit require ment that the cer tificate be filed afte r sentenc ing, there is also no explicit require ment that it be filed befor e the ruling

on the motion. Thus, if the rea soning in Sawyer we re co rr ec t, it would follow that the

cer t i fi ca t e could be filed afte r t he trial court rules on the m otion. Howeve r, i n Shirley
, our supreme c ourt expressly

reje cted suc h an interpr etation: “The filing [of t he Rule 604(d) cer tificate] should prece de or be simult aneous w ith the hear ing in the trial court. Such a proce dure will insure that the trial court, in considering

a defe ndant’s motion to withdraw his or her guilty plea or to reduc e sentenc e, will be apprised that defe nse counsel has re v i ew ed the proce eding s with the defe ndant and prepa red any nece ssary amendments to the motion. If this standard ofstrict compliance is not met , the remedy is a remand t o aff ord defendant another opportunity to be hea rd on his Rule 604(d) motion.” (Emphasis adde d.) Shirley , 181 I ll. 2d at 371. See also People v. McCaskill
, 2 9 8 I l l

. App. 3d 260, 267 (1998) (citing Shirley for the prop o s i t i o n that “[s] trict compliance with the requirements of Rule 604(d) is require d and

means filing of the attorney cer tificate must prec ede or be simult aneous with the hear ing on the motion i n the trial court” ). But see People v. Travis , 301 I ll. App. 3d 624, 627 (1998) (dec lining to require the filing of a Rule 604(d) cer tificate prior to hear ing in ever y case wher e the cer

tificate must be filed). Although the Shirley court aff irmed the appellate court’s decision, it did not do so beca use it agree d with the appellate court’s interpre tation of Rule 604(d). Rather
, the court rea soned that the principle of strict compliance did not automatically require multipl e rema nds. Shirley
, 181 I ll. 2d at 369. Be caus e t he case had previously been rema

nded for compliance wi t h Rule 604(d), the Shirley court declined to

rema nd the ca se yet ag ain, despite c ounsel’s fa ilure to strictly comply with the rule. ¶ 7 In view of Shirley
, we must consider what Rule 604(d) contemplates, not mere ly what the rule states expli citly

. As we acknow ledg ed in Sawyer , Rule 604(d) contemplates that the

cer tificate will be filed after t h e d ef en d an t has been sentenc ed. There is no provision for filing a postplea motion prior to sentenc ing, and in case s wher e an indige nt defe ndant desires counsel, the attorney will be appointed afte r the motion is filed and will there afte r file the

nece ssary cer

tificate. The logic ally deducible seq u en ce of events is: (1) entry of plea, (2) sentenc ing, (3) filing of motion, (4) appointment of co u n s el fo r the proce eding s on the motion, and (5) filing of cer tificate. The attorney re p re s en t ing the defe ndant betwee n the

en t ry of the plea and sentenc ing will be able to consult with the defe ndant and re v i ew t h e
co u rt fi l e an d the repor

t of proce eding s of the plea of guilty

. Howeve r, Rule 604(d) also req u i re s co u n sel to cer

tify that he or she has made nece ssary amendments to the motion. Be cause Rule 604(d) require s the motion to be filed after sentenc ing , counsel’s cer tification

-4-prior to sentenc ing that he or she has made ne cessa ry amendments to the motion would be meaning less. ¶ 8 Adher ence to the sequenc e of events descr ibed in the prec eding para g raph is not simpl y an empty ritual. As stated in Shirley : “Compliance w ith the m otion require ment of Rule 604 permits the t rial judg e who

acc epted the ple a and imposed se ntence to c onsider any alleg ations of impropriety that took place dehors the record and corr ect any err or t hat m ay have led to the guilty plea. [C itations.] Requiring the defe ndant’s counsel to file the requisite cer tificate enables the trial court to insure that counsel has revie wed the defendant’s claim and considered all relev ant bases for the motion to withdraw the guilty plea or to reconsider the sentenc e .” (Emphasis adde d.) Id. at 361. A cer tificate filed befor e sentenc ing does not ensure that counsel has considere d all rele vant bases for relief. Thi s is true even i n cas es , l i k e thi s one, where entry of a neg otiated guilty plea signific antly limit s the scope of appellate revie w of a trial court’s sentenc ing decision. S ee , e. g

. , People v. Spriggle
, 358 I ll. App. 3d 447, 454-55 (2005) (a defe ndant wh o
unsucce ssfully moves to withdraw a p l ea enter ed under an agree ment capping his or her sentenc e may appea l from the denial of the motion but may not challeng e the severity of his

or her sentenc e). A neg otiated guilty plea does not fore close revie w of sentenc ing err ors that bear on the validity of the guilty plea or that repr esent a brea ch of the defe ndant’s plea agree ment. See g ener ally People v. W hitfield
, 217 I ll. 2d 177 (2005). Such issues may arise when ter ms of a plea

agree ment favor able to the defe ndant are unenfor cea ble (see
, e.g. , id. (plea agre ement that did not provide for mandatory supervised rele ase) ; People v. Clark
, 2011 I L App (2 d ) 0 9 1 1 16 (plea agree ment that attempted to g ive double cre dit for time

serve d to d e f

e n d a nt sentenc ed to consec utive sentenc es)) or when the defe ndant is incorre ctly admonished about the sentenc e he or she fac es (see
, e.g. , People v. Snyder
, 2011 I L 111382 (whe re defe ndant who was order ed to pay restitution had not been admonished prior to entry of plea that sent ence might include restitution, proper reme dy was to permit defe ndant to withdraw her plea) ). In our experience
, these sorts of err ors occur with some fre quency , and it is not unlikely that a defe ndant will first become awa re of such an err or when the trial court imposes a sentenc e that does not confor m to the defe ndant’s understanding of the authorized sentenc es for

an off ense or the terms of his or he r plea agree ment. I f counse l consults with the defendant only befor e sentencing and makes amendme n t s only to a premature motion, signific ant e rr o rs m i gh t not come to the t rial court’s attention. We there fore conclude that

a ce rtificate filed prior to sente ncingdoes not satisfy the re quirements of Rule 604( d). ¶ 9 For the fore g oing rea sons, we vacate the order denying defe ndant’s motion to withdraw his ple a and we r emand the cause for “(1) the filing of a [valid] Rule 604(d) cer tificate; (2) the o p p o rt u n i t y to file a new motion to withdraw the guilty plea and/or rec onsider the sentenc e, if counsel conclude s that a new motion is nece ssary ; and (3) a new mo t ion hear ing.” People v . Lindsay , 239 I ll. 2d 522, 531 (2011).

¶ 10 Vac ated a

nd rema nded.

-5-