## 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 . Richard , 2012 IL App (5th) 100302

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. CURTI S J . RI CHARD, Def endant- Appellant.

District & N o. Fifth District Docke t No. 5-10-0302

Rule 23 Order

filed Motion to publ ish g rante d May 7, 2012

J une 7, 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

. ) The order denying defe ndant’s motion to withdraw his guilty plea to firstdegree murder was vacated and the cause was rema nded for compliance with the certification re quirement of Supreme Court Rule 604(d), since the certification filed by defe ndant’s counsel stating that h e ascertained defe ndant’s “conte ntions of deprivation of constitutional rights” was insu ff icient to satisfy the require ment of Rule 604(d) that counsel

asce rtain “def

endant’ s contentions of err or in the sentenc e or the entry of the plea of guilty ,” espec ially when there wa s n o evidenc e that defe nse counsel asce rtained defe ndant’s nonconstitutionally based contentions of

err or.

Dec ision Under Review Appea l from the Circuit Court of St. Clair Co u n t y , No. 05-CF- 73; the Hon. Annette A . Ecke rt, J udg e, pre siding.

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

Appea l Michae l J

. Pelletier, J ohannah B. Weber, and Dan W. Evers, all of State Appellate D efe nder’ s Offic e, of Mt. Ve rnon, for appellant.

Br endan Kelly
, State’s Attorney , of Be lleville (Patrick Delfino, Stephen E. Norris, and Patrick D. Daly
, all of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE WEL CH delivere d the judgment of the c ourt, with opinion. J ustices Goldenher sh and Chapman con cu rr ed in the judgme nt and opinion.

OP INION

¶ 1 Thi s ca s e co m es b ef o re us on the denial of the defe ndant’s motion to withdraw his neg otiated plea of guilty and the circ uit court’s ref usal to rule on the defe ndant’s oral motion to rec onsider his sentenc e. On appea l, the defe ndant argues that the cer tification require ment of I llinois Supreme Court Rule 604(d) (ef f. J uly 1, 2 0 0 6) was not met and that the circ uit court of St. Clair County

err ed in re fusingto rule on his motion to rec onsider his se ntence

. For the re asons that follow, we va cate the orde r deny ing the motion to wit hdrawthe guilty plea a nd rema nd for c ompliance with the c ertification requireme nt of Rule 604(d). ¶ 2 On J anuar

y 14, 2005, the defe ndant was char g ed with one count of first-degree murder in violation of section 9-1(a )(1) of the Criminal Code of 1961 (720 I L CS 5/9-1(a) (1) (West 2004)). The char g e alleg ed that the defe ndant shot Ronald Curtis in the chest with a gun with the intent to kill on Dec ember 29, 2004. An indictment char g ing the same offe nse was filed on Fe bruar

y 4, 2005. ¶ 3 The State filed a notice of in t en t t o s ee k an en h an ce d s en t en ce of natura l-life imprisonment pursuant to section 5-8-1( a)( 1) of the Unified Code of Correc tions (730 I L CS 5/5-8-1(a )(1) (Wes t 2 0 0 4 ))

. Subsequently
, the defe ndant enter ed into a neg otiated plea of guilty to the char g e of murder in the first degree

. In exchang e for the defe ndant’s guilty plea, the State withdrew its notice of intent to seek an enhanc ed sentenc e and cappe d its reque sted senten ce at 5 5 y ear s’ imprisonment, 5 y ear s below the maxi mum possible sentenc e. The court sente nced the defe ndant to 55 y ear s’ imprisonment. ¶ 4 The defe ndant then filed a motion to withdraw his guilty plea, arguing that his plea was not fre e and voluntary
, the court was biased ag ainst him, and his sentenc e had been prede termined. The motion was denied and the defe ndant appea led. This court rema nded for compli an ce wi th the cer

tification require ment of I llinois Supreme Court Rule 604(d) (ef f. J uly 1, 2006). People v. Richard
, No. 5-07-0004 (2008) (unpublished summary order under Supreme Court Rule 23(c) (2))

. The defe ndant was assisted by differ ent counsel on rema nd.

-2-¶ 5 On May 15, 2009, defe nse counsel filed an amende d motion to withdraw the defe ndant’s

guilty plea along with a Rule 604(d) cer tificate of complianc e. A s econd amende d motion and cer tificate wer e filed on J une 4, 2009, and a third amende d motion and cer tificate wer e filed on Mar ch 24, 2010. The third amende d cer tificate pr ovided: “2. That I have examined th e en t i re rec ord of the plea, sentenc ing, Motion to Wit hdraw Plea of Guilty

and Appe llate Court Dec ision. 3. That I have made any amendments in the Third Amended Motion to Wit hdraw Plea of Guilty and to the Amended Motion to Wit hdraw Plea of Guilty
, filed pro-se , that

are nece ssary

for a dequate prese ntation of Def endant’ s contentions. 3. [ sic ] That I have made any amendments to the Amended Motion to Wit hdraw Plea of Guilty
, filed pro se, that are nece ssary for adequat e prese ntation of Def endant’ s contentions. 4. That I consulted with Def endant by corr espondenc e to him dated September 5, 2008, Dec ember 31, 2 0 0 8 , J anuar y 15, 2009, and April 29, 2009 to asce rtain his contentions of depr ivation of constitutional rights. 5. That I revie wed c orre spondence from De fenda nt dated September

30, 2008, and April 28, 2009 to asce rtain his contentions of deprivation of constitutional right. 6. That I m et wi t h Def

endant persona lly on November 19, 2008, and Fe bruar y 17, 2010 to asce rtain his contentions of depr ivation of constitutional rights. 7. That this cer

tificate is in compliance with Supreme Court Rule 604(d).” ¶ 6 An evidentiar

y hear ing on the third amende d motion to withdraw the plea of guilty was held on J une 3, 2010. I n addition to arguing the merits of t he mot ion to withdraw, def ense counsel orally reque sted that the defe ndant’s sentenc e be rec onsidered. The court denied the motion to withdraw the plea of guilty and stated that it did not ha ve the authority to rule on the motion to reconsider

the sentenc e. The defe ndant appe als. ¶ 7 The defe ndant makes two arguments on appea l: (1) that counsel’s third cer tification did not meet the require ments of Rule 604(d) and (2) that the circ uit court err ed in decla ring that it did not have authority to rule on the m otion to rec onsider the sentenc e. W e wi l l ad d ress these issues in turn. ¶ 8 The defe ndant claims that counsel’s Rule 604(d) cer tificate was defe ctive in three way s. First, the defe ndant argues that counsel’s cer tification that he asce rtained the defe ndant’s “conte ntions of deprivation of constitutional rig hts” does not meet the r u le ’ s r e quirement that t h e “d efe ndant’s contentions of err or in the sentenc e or the entry of the plea of guil t y ” b e
asce rtained (I ll. S. Ct. R. 604(d) (ef f. J uly 1, 2006))

. Second, the defe ndant arg ues that counsel’s repr esentation that he revie wed “the entire rec ord of the plea, sentenc ing, Motion to Wit hdraw Plea of Guilty and Appellate Court Dec ision” is insufficient to meet the rule’s require ment that counsel examine “ the trial court file and repor t of proce eding s of the plea of guilty ” (I ll. S. Ct. R. 604(d) (ef f. J u l y 1, 2006)). Third, the defe ndant argues that prese ntation of “De fenda

nt’s contentions” does not meet the rule’s require ment that counsel prese nt “any defe cts in those proce eding s” (Ill

. S. Ct. R. 604(d) (ef f. J uly 1, 2006)). In response , the State argues that while the cer tificate does not rec ite t h e l anguag e of Rule

-3-604(d) ve rbatim, the re quirements of the rule have bee n met.

¶ 9 Supreme Court Rule 604(d) require s the filing of a cer tificate by postplea counsel stating that counsel “has consulted wi t h t h e d efendant either by mail or in person to asce rtain defe ndant’s contentions of err or in t h e s entenc e or the entry of the plea of guilty
, has examined the trial court file and repor t of proce eding s of the plea of guilty
, and has made any amendments to the motion n ec essary for adequate prese ntation of any defe cts in those proce eding s.” I ll. S. Ct. R. 604(d) (ef f. J uly 1, 2006). Adequa cy of a Rule 604(d) cer tificate is reviewe d de novo

. People v . Grice , 371 I ll. App. 3d 813, 815 (2007). ¶ 10 Rule 604(d)’ s cert i fi ca t i o n re qu i re m en t ac ts as a basis upon which the court c an deter mine whether counsel perf ormed the duties set forth by the rule. People v. Starks
, 344 I l l

. Ap p

. 3 d 766, 769-70 (2003). “B y promulg ating Rule 604(d), the Supreme Court of I llinois has alre ady deter

mined the require d content of the cer tificate, and it is the duty of this court–a nd the trial courts–to ensure that this supreme court mandate is followed.” Grice , 371 I ll. App. 3d at 816. Counsel must strictly comply with Rule 604(d). People v. Janes , 158 I ll. 2d 27, 33 (1994). While strict compliance does not requir e that the languag e of the rule be

rec ited verbatim in the cer tificate, some indication must be prese nted that counsel perf ormed the duties require d under the rule. People v. Dismuke
, 355 I ll. App. 3d 606, 609 (2005). This court cannot simply assume or infer compl iance with Rule 604(d), beca use any issue not raised in the motion to withdraw the guilty plea or motion to rec onsid er the sentenc e is waived. I ll. S. Ct. R. 604(d) (ef f. J uly 1, 2006); People v. Prather
, 379 I ll. App. 3d 763, 768 (2008). “[A] waste of judicial resour ces occurs when, as a result of an attorney ’s deficient

cer tificate, an appellate court m u s t scour throug h the rec ord to deter mine whether that attorney actua lly complied with Rule 604(d) ***.” Dismuke
, 355 I ll. App. 3d at 609. Remand is require d wher e counsel fails to strictly co m p ly with the require ments of Rule 604(d). Prather , 379 I ll. App. 3d at 768. ¶ 11 The defe ndant first argues that counsel’s cer tification that he asce rtained the def endant’ s “c o n t en tions of deprivation of constitutional rig hts” is insufficient to meet Rule 604(d)’ s require ment that counsel asce rt ain “defenda nt’s contentions of error in the s entenc e or the entry of the plea of guilty ” (I ll. S. Ct. R. 604(d) (eff. J uly 1, 2006)). We agree with the defe ndant. ¶ 12 Rule 604(d) re quires that counse l determine the defe ndant’s conte ntions of err or in the sentenc e or the p l ea o f gu i l ty ; the rule does not require that those claims impact the defe ndant’ s co n s t itutional rig hts. Whil e arguments are made that eac h of the defe ndant’s clai ms of err or in the sentenc e and the entry of the plea of guilty in the instant case has a constitutional basis, thus maki n g co unsel’s cer tification sufficie nt, this circ umvents the purpose of

Rule 604(d). ¶ 13 In People v. Prather
, 379 I ll. App. 3d 763 (2008), the Four th District held that counsel’s

cer tif i ca tion that he asce rtained the defe ndant’s contention of “er ror and sentenc e” was insufficient to meet the require ments of Rule 604(d). 379 I ll. App. 3d at 768. “The statement that counsel asce rtained defe ndant’s contention of ‘er ror and sent en ce ’ m ay have omitted words intending ‘er

ror in the guilty plea an d s en t ence ’ or may have misty ped a word intending ‘er

ro r in sentenc e.’ We cannot be sure there fore whether counsel asce rtained

-4-defe ndant’s contentions of err or in the guilty plea hearing as well as in the sentenc e.” 379 I ll.

App. 3d at 768. ¶ 14 In the instant case , there is no evidenc e in the cer tificate, motion, or rec ord that counsel

asce rtained the defe ndant’s nonconstitutionally based contentions of err or in the sentenc e or the entry of the plea

of guilty . Thus, it is not clea r t hat counsel asce rtained the defe ndant’s contentions of err or in the sentenc e and entry of the plea of guilty and then deter mined that all of those conte ntions had constitutional bases. ¶ 15 Be cause Rule 604(d) requires strict compliance and bec ause that compliance is visible neither on the fac e of the cer tificat i o n n o r i n o u r revie w of the rec ord, we find the

cer tification to be insufficient to me et the require ment of Rule 604(d). Counsel must make clea r to the court that he asce rtained the defe ndant’s contentions of err or in se ntence or the entr y o f t h e plea of guilty ; it is not this court’s duty to deter mine whether
, beca

use of counsel’s poor

terminolog y , an argument could be made that a ce rtificate is sufficient. See Prather
, 379 I ll. App. 3d at 7 6 8

. As such, we find the counsel’s third cer tification to be insufficient to mee t the require ments of Rule 604(d). ¶ 16 Acc ording ly
, we vaca te the circ uit court’s judgme nt reg arding Rule 604(d) compliance and rema nd for compliance with the cer tification require ment of Rule 604(d). We decline the opportunity to addre ss the two additional Rule 604(d) arguments made by the defe ndant on appea l. In so doing, howeve r, we do not intend to imply that the rema inder of counsel’s Rule 604(d) c ertifica

te is satisfactor

y . We remand f

or (1) the filingof a ne w postplea motion (if the defe ndant so wishes), (2) a new hearing on the defe ndant’s postplea motion, and (3) strict compliance with Rule 604(d) re quirements. ¶ 17 Next, we turn to the second issue on appea l. At the J une 3, 2010, hear i n g, t h e circuit court rule d: “In this case , the Court does find that the State cappe d at 55 yea rs , gi v ing up five y ear s. Pursuant to the rule, it is a neg ot i at ed plea. Pursuant to those rules also and the admonishment that this court gave, the C ourt cannot modify a sentence after there is a neg otiated plea of guilty
, b ut rathe r the defe ndant must proce ed with a motion to withdraw plea of guilty

. That is what has been filed in this case

. T h e C o u rt can only consider that. There fore
, the motion t o re du ce t h e sentenc e or modify it in any way is denied. As to the mo t i o n t o wi t h draw the plea of guilty
, the Court has considere d the transcr ipt of the proce eding s. The Court has considere d the testimony today

. The Court has considere d the arguments of counsel and will deny the motion to withdraw the plea of guilty .” ¶ 18 On appea l, the defe ndant takes issue with th e circ uit court’s statement that “the Court cannot modify

a sente nce a fter the re is a ne g otiated plea of guilty , but rather

the def endant must proce ed with a motion to withdraw plea of guilty

. ” The issue befor e us is whether a circ uit court has the authority to rec onsider a defe ndant’s neg otiated-c ap sentenc e when the guilty plea has not been succe ssfully withdrawn. For the rea sons that follow, we find that it does not. ¶ 19 Be cause the issue before us hinge s on the construction of Supreme Court Rule 604(d)
,

-5-the issue is revie wed de novo

. People v. Drum , 194 I ll. 2d 485, 488 (2000). Rule 604(d)

provides: “( d ) Appea l by Def

endant Fr om a J udg ment Entere d Upon a Plea of Guilty

. No appea l from a judgme nt enter ed upon a plea of guilty shall be taken unless the defe ndant, within 30 day s of the date on which sentenc e is imposed, files in the trial court a motion to rec onsider the sentenc e, if only the sentenc e is being challeng ed, or, if the plea is being challeng ed, a motion to withdraw the plea of guilty and vacate the judgme nt. No appeal shall be taken upon a negotiated plea of gui l t y ch a l lenging the sentenc e as exc essive unless the defendant, withi n 30 days of the imposition of sentenc e, files a mo t i o n to

w i t h d r a w the plea of guilty and vacate the judgment. For purposes of this ru l e, a negotiated plea ofguilty is one in which the prosecution has bound itself to recom mend

a specific sentenc e, or a specific range of sentenc e, or where the prosecution has made

conce ssions relating to the sentenc e to be imposed and not mere ly to t he charge or charges then pe nding .” (Empha sis added.) I ll. S. C t. R. 604(d) (ef f. Jul y 1, 2006). ¶ 20 In People v. Evans , 174 I ll. 2d 320 (1996)
, t wo d ef en d an t s had enter ed into fully neg otiated p l ea s wher eby cer tain char g es wer e dismiss ed and specific sentenc es wer e
rec o m m en d ed

. 174 I ll. 2d at 321-24. The defe ndants then soug ht to have their sentenc es
rec onsidered without withdrawing their guilty pleas. The defe ndants argued that the “motion to rec onsider the sentenc e, if only the sentenc e is being challeng ed” languag e of Rule 604(d) supported their position. (Emphasis omitted.) (Interna l quotation marks omitted.) 174 I ll. 2d at 328. ¶ 21 In finding the “motion-to-re consider” languag e applicable only to open guilty pleas, the supreme court relied on contra ct law principles in plea barg aining

. 174 I ll. 2d at 325-28. Be cause the defe ndants pled guilty in exchang e for specific s en t ence s, by later seeking to have their sentenc es rec onsidered, the defe ndants wer e “see king to hold the State to its part of the barg ain while unilatera lly modifying the sentenc es to which they had earlier agree d.” 174 I ll. 2d at 327. The Evans court stated that to permit the defe ndants’ actions “would be to ‘enc ourag e g amesmanship of a most offe nsive nature ’ [citation] .” 174 I ll. 2d at 327. The court also found that for a defe ndant to preva il in a challeng e to a sentenc e imposed pursuant to a neg otiated plea agree ment, the defe ndant must (1) move to withdraw the guilty plea and

vacate the judg ment and (2) show that the gra nting of the m otion is nece ssary to preve nt a manifest injustice. 174 I ll. 2d at 332. ¶ 22 Evans was subsequently extended to partially neg otiated pl eas with sentenc ing caps in People v. Linder
, 186 I ll. 2d 67 (1999). In Linder
, the supreme court he ld that a defenda nt who pled guilty in exchang e for dismiss al of charg es and a cap on the leng th of his sentenc e could not c halleng e the se ntence via a motion to r econside r; instead, a motion to withdraw the guilty plea must first be filed. 186 I ll. 2d at 74. “B y agree ing to plead guilty in exchang e for a rec ommended sente ncingcap, a defe ndant i s, in eff

ect, ag ree ing not to challeng e any sentenc e impo s ed b el o w t h at cap on the grounds that it is excessive.” 186 I ll. 2d at 74. “While the defe ndant may not like the sentenc ing court’s ultimate dispositi on, that is a risk he assumes a s part of his barg ain.” 186 I ll. 2d at 74. ¶ 23 In People v. Haley
, 315 I ll. App. 3d 717 (2000), a defe ndant pled guilty in exchang e for

-6-the State’s dismiss al of other c harg es and a rec ommended maxi mum se ntence of 24 y ear s’ imprisonment. 315 I ll. App. 3d at 718. The c ircuit court a cce pted the def endant’ s plea a

nd sent en ce d him to 24 y ear s’ imprisonment. 315 I ll. App. 3d at 718. The defe ndant filed a motion to withdraw his guilty plea, which was denied. 315 I ll. App. 3d at 718. The defe ndant t h en appea led, arguing that his sentenc e was excessive. 315 I ll. App. 3d at 718. The is s u e befor e the Third District was whethe r t h e d ef endant may appea l from a sentenc e imposed pursuant to a cappe d plea agree ment afte r unsucce ssfully moving to withdraw his guilty plea. 315 I ll. App. 3d at 718. The Third District held that the defe ndant must first succe ed in withdrawing his guilty plea befor e he could challeng e the sentenc e enter ed p u rs uant to a neg otiated cap. 31 5 I ll. App. 3d at 720. “[I ]f the mere pro forma act of filing a motion to withdraw wer e all it took to repudia te a plea agree ment and obtain revie w of the sever ity of

a neg otiated sentenc e, the supreme court would have acc omplished very littl e in deter ring the kind of ‘hea ds-I -win-tails-you-lose’ g amesmanship d ecried by the court in Evans

. [C itation.] ” (Empha sis in original.) 315 I ll. App. 3d at 720. ¶ 24 Whil e Evans , Linder
, and Haley involve supreme and appellate revi e w o f g u ilty pleas a

nd sentenc es , t h ei r principles apply to the instant case

. The main conce rn when a neg otiated guilty plea is c halleng ed is that e ach party rec eive the benef it of its ba rg ain. Evans , 174 I ll. 2d 320. Be cause o f t h i s conce rn, a sentenc e enter ed pursuant to a neg otiated guilty plea cannot be direc tly challeng ed as excessive; instead, a motion to withdraw must first be filed. Eva n s , 174 I ll. 2d 320; Linder
, 186 I ll. 2d 67. Not only must the motion to wi t h d ra w t h e neg otiated plea be filed befor e the sentenc e can be challeng ed–it must be g rante d. Evans , 174 I ll. 2d at 332; Haley
, 315 I ll. App. 3d at 720. Thus, a defe ndant must succe ed in withdrawing his neg otiated plea befor e his sentenc e, enter ed within the terms of the agree d-upon cap, can be re viewed by

any court. ¶ 25 The languag e of Rule 604(d) supports this finding

. Rule 604(d) was amende d afte r Haley to include the second and third sentenc es (in italics above)
, which relate to neg otiated guilty pleas. I ll. S. Ct. R. 604(d) (ef f. Nov. 1, 200 0). The amende d sentenc es codified the law previously promulg ated by the supreme court, n a me ly
, th at a sentenc e enter ed on a neg otiated plea of guilty cannot be rec onsidered without a mot i o n t o wi thdraw the guilty plea having first been filed. Evans , 174 I ll. 2d 320; Linder
, 186 I ll. 2d 67. This sta nds in c ontrast to the previous version of the rule (which is now the rule’s first sentenc e), which appea red to allow

a sentenc e to be rec onsidered without the guilty plea first being withdrawn. This provision, howeve r, was held to be limit ed to open guilty pleas. Evans , 174 I ll. 2d 320. Contrary to the defe ndant’s argument on appea l, nothing in the amende d languag e of Rule 604(d) g ives the circ uit court authority to modify a sentenc e that was enter ed pursuant to a neg otiated guilty plea without the cour

t first g rantinga motion to withdraw the ne g otiated guilty plea. ¶ 26 Since the circ uit court of St. Clair County denied the defe ndant’s motion to withdraw his neg otiated guilty plea, it d i d n o t er r in ref using to addre ss the defe ndant’s motion to

rec onsider his sentenc e. To require the circ u i t co u rt to expressly rule on a motion to

rec onsider his sentenc e when it has denied the defe ndant’s motion to withdraw his guilty plea is superfluous. ¶ 27 For the fore g oing rea sons, we vacate the order denying the motion to withdraw the guilty plea and rema

nd for compliance with the cer tification require ment of Rule 604(d); no further

-7-proce eding s are require d on the motion to reconsider the sentenc e.

¶ 28 Vac ated a

nd rema nded.

-8-