2021 IL App (4th) 190735-U 

NOS. 4-19-0735, 4-19-0736 cons. 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, 

Plaintiff-Appellee,

v. 

HENRY TAYLOR, 

Defendant-Appellant. 

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Appeal from the 

Circuit Court of

Vermilion County 

Nos. 13CF544 

15CF35 

Honorable 

Thomas M. O’Shaughnessy, 

Judge Presiding.

 JUSTICE CAVANAGH delivered the judgment of the court.

 Presiding Justice Knecht and Justice Steigmann concurred in the judgment.

ORDER

¶ 1 Held: (1) Because postplea counsel’s certificate pursuant to Illinois Supreme Court 

604(d) (eff. July 1, 2017) is unrebutted by the records on appeal, the certificate will 

be credited.

(2) By denying defendant’s second amended motion to withdraw his guilty pleas, 

the circuit court did not abuse its discretion. 

¶ 2 Defendant entered negotiated guilty pleas to two counts of possessing, with the 

intent to distribute, between 2000 and 5000 grams of cannabis (720 ILCS 550/4(f) (West 2012); 

720 ILCS 550/4(f) (West 2014)). One count was in Vermilion County case No. 13-CF-544 

(corresponding to our case No. 4-19-0736), and the other count was in Vermilion County case No. 

15-CF-35 (corresponding to our case No. 4-19-0735). For those offenses, the Vermilion County 

circuit court sentenced defendant to consecutive prison terms of six years and eight years. Before 

NOTICE

This Order was filed under Supreme 

Court Rule 23 and is not precedent 

except in the limited circumstances 

allowed under Rule 23(e)(1). 

FILED

April 30, 2021

Carla Bender

4th District Appellate

Court, IL
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being sentenced, defendant moved to withdraw his guilty pleas in the two cases. The court denied 

his motion in its successive versions. 

¶ 3 Defendant appeals from the denial of his second amended motion to withdraw his 

guilty pleas in the two cases (henceforth, the “second amended motion”). We have consolidated 

his two appeals. In both appeals, his contentions are twofold.

¶ 4 First, defendant contends that his postplea counsel failed to fulfill the requirements 

of Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). But postplea counsel certified that she 

had done everything that the rule required. In our de novo review of the records, we find nothing 

that affirmatively refutes her certificate. Therefore, her Rule 604(d) certificate prevails.

¶ 5 Second, defendant contends that, instead of ruling on his second amended motion, 

Judge O’Shaughnessy should have recused himself on the ground of a conflict of interest or that, 

at least, he should have assigned another judge to adjudicate defendant’s allegation of a conflict of 

interest. But defendant, through his defense counsel, never moved that Judge O’Shaughnessy 

recuse himself or that he assign another judge to adjudicate his alleged conflict of interest. And, 

besides, Judge O’Shaughnessy’s prior representation of a witness in, apparently, a different matter 

was not disqualifying. 

¶ 6 Therefore, we affirm the judgments in Vermilion County case Nos. 15-CF-35 and 

13-CF-544. 

¶ 7 I. BACKGROUND

¶ 8 In the early morning of January 22, 2015, police officers went to defendant’s 

residence, in Danville, Illinois, in response to a report that gunmen had fired into his residence in 

an attempt to rob him. After some investigation, the police obtained a warrant to search defendant’s 
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residence. In the search, they found $72,014, 3409 grams of cannabis, cellular phones, a digital 

scale, and a small amount of a substance that tested positive for the presence of cocaine.

¶ 9 Because of those discoveries, the police arrested defendant, and the State charged 

him with, among other offenses, possessing, with the intent to distribute, between 2000 and 5000 

grams of cannabis. See 720 ILCS 550/4(f) (West 2014). The criminal case was docketed as case 

No. 15-CF-35. 

¶ 10 On January 22, 2015, according to the second amended motion, the State filed a 

submission for preliminary review in a civil forfeiture case, Vermilion County case No. 15-MR31, asking the circuit court to order that the $72,014 seized from the house be held under the court’s 

jurisdiction until forfeiture proceedings were completed. See 725 ILCS 150/3.5(a) (West 2014) 

(providing that, within 14 days after seizure of the property, the State “shall seek a preliminary 

determination from the circuit court as to whether there is probable cause that the property may be 

subject to forfeiture”).

¶ 11 On January 23, 2015, in case No. 15-CF-35, the circuit court set bond at $2 million, 

requiring defendant to post 10% of that amount. See 725 ILCS 5/110-7(a) (West 2014). That day, 

according to the second amended motion, defendant “had family and friends report to the 

[Vermilion County] Public Safety Building with the $200,000.00 that would be required to secure 

his release in [case No.] [15]-CF-35. Mr. Wes[ley] Burris brought $184,850.00 of the $200,000.00 

to the Public Safety Building, [and this currency] was seized by Vermilion County Metropolitan 

Enforcement Group Agents.” The $184,850 “was never actually posted but [was] seized as drug[ ] 

assets,” to quote what the prosecutor said in a hearing of February 2, 2015.

¶ 12 On January 26, 2015, according to the second amended motion, the State filed a 

submission for preliminary review in another civil forfeiture case, Vermilion County case No. 
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15-MR-35, asking the circuit court to order that the $184,850 be held under the court’s jurisdiction 

until forfeiture proceedings were completed. See 725 ILCS 150/3.5(a) (West 2014).

¶ 13 At the time the State filed the charges in case No. 15-CF-35, defendant already had

several criminal cases pending against him, namely, Vermilion County case Nos. 11-CF-465, 

12-CF-509, 13-CF-544, and 14-CF-343. In case No. 14-CF-343, defendant’s mother, Winnie 

Taylor, posted $50,000 to obtain his pretrial release.

¶ 14 In the hearing of February 2, 2015, the parties informed the circuit court that they 

had reached an agreement on certain matters. In case No. 14-CF-343, bond would be revoked (that 

is, defendant would be held without bond), and the $50,000 would remain in the court’s custody 

and would not be released without a source-of-bond hearing. See 725 ILCS 5/110-5(b-5) (West 

2014). In case No. 15-MR-35, the court would reinstate a probable-cause ruling on the source of 

the $184,850 that Burris had brought in for a bond, and defendant would remain in custody in that 

case, without bond. Ten thousand dollars of the $184,850 would be returned to defendant’s son. 

All civil forfeiture matters would be consolidated with the felony matters.

¶ 15 On February 17, 2015, in case Nos. 14-CF-343 and 15-CF-35, the parties entered 

into an agreed-upon order that (1) the State had shown reasonable cause for a source-of-bond 

hearing in those two cases and (2) before defendant was released in those two cases, a 

source-of-bond hearing would be held, and “any bond currently posted in [case No. 14-CF-343 

was to] be held by the [c]ourt until a source[-]of[-]bond hearing [was] requested by the 

[d]efendant.” 

¶ 16 On April 8, 2016, in case No. 14-CF-343, a jury found defendant guilty of 

possessing, with the intent to distribute, over 5000 grams of cannabis. The jury also found 

defendant guilty of possessing a controlled substance.
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¶ 17 On June 21, 2016, while awaiting sentencing in case No. 14-CF-343, defendant 

entered into a plea agreement in the remaining cases. The terms of the plea agreement were as 

follows. 

¶ 18 In case No. 13-CF-544, defendant would plead guilty to count III, possession of 

cannabis with the intent to deliver it, a Class 1 felony (720 ILCS 550/5(f) (West 2012)). For that 

offense, he would be sentenced to a minimum of probation and a maximum of 15 years’ 

imprisonment, to run consecutively to whatever sentence he received in case No. 14-CF-343 (with 

respect to which there was no deal). The remaining charges in case No. 13-CF-544 would be nolprossed. 

¶ 19 In case No. 15-CF-35, defendant would plead guilty to count IV, possession of 

cannabis with the intent to deliver it, a Class 1 felony (720 ILCS 550/5(f) (West 2014)). The 

sentence would be a minimum of probation and a maximum of 15 years’ imprisonment, to run 

consecutively to the sentences in all of the other cases.

¶ 20 In case No. 14-CF-343, a bond of $50,000 had been posted, which was assigned to 

Winnie Taylor. After defendant was sentenced, the State would agree to releasing the $50,000 to 

Winnie Taylor.

¶ 21 All other funds being held, including the $174,850 in case No. 15-MR-35 (the 

$184,850 that Burris had brought minus the $10,000 returned to defendant’s son) and the $72,014 

seized from the house, would be forfeited to the government. So, this would be a forfeiture of a 

total of $246,864 in United States currency ($174,850 plus $72,014).

¶ 22 Finally, case Nos. 11-CF-465 and 12-CF-509 would be nol-prossed. 

¶ 23 Those were the terms of the plea agreement. On June 21, 2016, defendant pleaded 

guilty on those terms, and Judge O’Shaughnessy accepted his guilty pleas.
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¶ 24 On June 23, 2016, after denying a second amended motion for a new trial or, in the 

alternative, a judgment of acquittal in case No. 14-CF-343, the circuit court called that case and 

case Nos. 13-CF-544 and 15-CF-35 for sentencing. Judge O’Shaughnessy sentenced defendant to 

10 years’ imprisonment in case No. 14-CF-343, 8 years’ imprisonment in case No. 15-CF-35, and 

6 years’ imprisonment in case No. 13-CF-544, ordering that these prison terms run consecutively.

¶ 25 On July 18, 2016, defendant filed, pro se, a sworn motion to withdraw his guilty 

pleas in case Nos. 15-CF-35 and 13-CF-544. Defendant gave two reasons why, in his view, he 

should be allowed to withdraw his guilty pleas. First, at the time of defendant’s arrest, medical 

marijuana was legal in Illinois, and “[t]he State withheld from the defendant [a] signed affidavit 

from the rightful owner of said medical marijuana.” Attached to defendant’s pro se motion was an 

affidavit by the purported rightful owner, Ricky Mullins. In his affidavit, Mullins averred that on 

January 22, 2015, without defendant’s knowledge, he hid a box of marijuana in the attic of 

defendant’s house, thinking that the attic would be a safe hiding place since that was where 

defendant kept his money. Second, Judge O’Shaughnessy, defendant claimed, was “a close 

personal friend of Wesley Burris,” and not only that, but Judge O’Shaughnessy or “his law firm” 

was representing Burris and his company. Burris, defendant continued, was a witness against 

defendant in case No. 15-CF-35, putting Judge O’Shaughnessy in “a conflict of interest.”

¶ 26 Postplea counsel appeared on behalf of defendant and on November 6, 2017, filed 

an amended motion to withdraw the guilty pleas. The amended motion asserted that the State had 

“negotiated the plea agreement in bad faith” and that defendant had “received ineffective

assistance of counsel in entering into his plea agreement.” The reason for those assertions was this: 

a statutory deadline allegedly had been missed in the forfeiture cases (see 725 ILCS 150/9(F) (West 

2014)), making the government’s retention of the currency illegitimate. A statutory deadline for 
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holding a trial in the forfeiture cases supposedly had gone by. The clock was supposed to begin 

ticking with the filing of an answer. The amended motion represented that, in the forfeiture case 

pertaining to the $72,014, defendant filed his answer to the State’s verified complaint on March 

23, 2015. Section 9(F) of the of the Drug Asset Forfeiture Procedure Act (725 ILCS 150/9(F) 

(West 2014)) provided that a trial had to be held “within 60 days after filing of the answer [to the 

complaint of forfeiture] unless continued for good cause.” No trial had been held.

¶ 27 Allegedly, it was the same story in Vermilion County case No. 15-MR-35, the civil

forfeiture case pertaining to the $184,850. In that case, the State filed its verified complaint on 

February 18, 2015, and on March 23, 2015, according to the amended motion, defendant filed his 

answer. No trial was ever held on that complaint either. Thus, the amended motion claimed, the 

60-day deadline in section 9(F) was missed in that case too. In People v. Four Thousand Eight 

Hundred Fifty Dollars, 2011 IL App (4th) 100528, as defendant interpreted that decision, the 

Fourth District held that the deadlines in the Drug Asset Forfeiture Procedure Act (725 ILCS 150/1 

et seq. (West 2014)) were mandatory, meaning that forfeiture was defeated if the deadlines were 

missed. 

¶ 28 On December 7, 2017, the amended motion to withdraw the guilty pleas was 

scheduled to be heard. At the request of postplea counsel, the hearing was continued for 60 days 

because, after speaking with defendant, there were some other issues that she believed postplea 

counsel needed to address. The State had no objection to the proposed continuance, and Judge 

O’Shaughnessy granted the continuance.

¶ 29 Before concluding the hearing, however, Judge O’Shaughnessy took the occasion 

to remark that Burris was indeed an acquaintance of his and a former client when Judge 

O’Shaughnessy was with a Danville law firm, Acton and Snyder LLP. Judge O’Shaughnessy 
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explained that, if he had known, at the time of the guilty-plea hearing, that Burris would be a 

witness in the State’s case, he would have recused himself. Until reading defendant’s pro se 

motion, however, he was unaware of Burris’s involvement. Now, having been made aware, Judge 

O’Shaughnessy was uncertain if he should be the judge to rule on defendant’s amended motion to 

withdraw his guilty pleas. He requested the attorneys to look into this question and to let him know 

what they found in their research. For that purpose, he gave postplea counsel time to file a second 

amended motion if she wished. 

¶ 30 On April 25, 2018, at the rescheduled hearing on the amended motion to withdraw 

the guilty pleas, Judge O’Shaughnessy asked if defendant had elected not to file a second amended 

motion. Postplea counsel replied:

“That’s correct, Your Honor. I think when we were here before, the issue was about 

a potential conflict with Your Honor as a potential witness in the case [sic]. I think 

after reviewing everything and speaking with my client and going over it, I don’t 

believe that that was a valid issue going forward. I did, however, file the [Rule] 

604(d) certificate.” 

¶ 31 In the Rule 604(d) certificate that postplea counsel filed on April 25, 2018, she 

certified as follows:

“1. I have consulted with the defendant in person and by phone to ascertain 

the [d]efendant’s contentions of error in the entry of the plea of guilty;

 2. I have examined the trial court file and report of proceedings of the plea 

of guilty; and

 3. I have made any amendments to the motion necessary for the adequate 

presentation of any defects in those proceedings.” 
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¶ 32 Having presented this Rule 604(d) certificate, postplea counsel made the following 

contention of error in the hearing on the amended motion to withdraw the guilty pleas: 

“[The State] should have held a forfeiture hearing within the time required by 

statute. They didn’t; and based on the case law and the statute, at that point that 

money should have automatically gone back to my client. But as a way to, I guess, 

fix the oopsy, the State decided to make that a part of the plea.

It’s my position that that should not have even been able to be part of the 

plea because when that 30-day period had passed, the money should have already 

gone back to my client. *** And it’s my position that because of that[,] this is not 

an enforceable agreement; and based on that, he should be allowed to withdraw his 

plea and we essentially should start back from the beginning in 2015.

I think that when, you know—the statute is very clear on these 

proceedings[,] and I think that it was not made clear to my client that this is how it 

should have happened.”

¶ 33 The circuit court asked postplea counsel, “[W]hy is it that him agreeing to assign 

those monies to the State, pay those monies to the State as a part of a plea agreement that reduced 

Class X charges to probationable offenses not also a waiver on his behalf of any interest in those 

monies?”

¶ 34 That was a valid point, postplea counsel answered, but the problem remained that 

defendant, when entering into the plea agreement, was inadequately informed of the true state of 

affairs—the State’s true position of desperation—in the forfeiture cases:

“I think in reviewing the transcripts from the plea hearings and in conversations 

with my client, my client was not led to believe that he was giving up those monies 
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to the State. He was led to believe that those monies already belonged to the State 

and it was something that he was never going to see anyway. Similar to when a 

felon is charged with possession of a firearm and part of the plea is forfeit the—

well, they know they’re not getting that gun back. I think that [defendant] was led 

to believe that, for whatever reason, he had missed a deadline of something and that 

that money was—it was gone no matter what; and that is not the case.”

¶ 35 The circuit court asked postplea counsel what was the date by which, according to 

her theory, a trial in the forfeiture cases had to be held. She answered as follows:

 “MS. BEZNER: Your Honor, I think it would have been within the 30 days 

of that February—I’m sorry, 60 days of that February 17th, 2015, date when the 

agreed order was filed.

THE COURT: Well, your motion says 60 days after the filing of an answer.

MS. BEZNER: Your Honor, that’s what the statute lays out in [section 9 

(725 ILCS 150/9 (West 2014))], but I think that the date of the agreed order would 

constitute an answer on their part because the whole point of filing— 

THE COURT: That was before the complaint was filed.

MS. BEZNER: Exactly. And, Your Honor, I think that the whole point of 

filing an answer is to give the State notice that I’m seeking a claim to these funds, 

and it’s clear from that order that they knew that he was claiming those funds to be 

his.

THE COURT: Well, [defendant] filed an answer in [case No.] 15[-] 

MR[-]35. 

MS. BEZNER: Correct.
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THE COURT: He didn’t file an answer in [case No.] 15[-]MR[-]31. Well, 

that might not be true. He may have filed a pro se— 

MS. BEZNER: I have one in [case No. 15-MR-31] marked March 30th of 

2015. It’s titled motion—I’m sorry. Motion to deny— 

THE COURT: There’s a document entitled Motion to Deny Forfeiture.

MS. BEZNER: Correct.”

¶ 36 The circuit court asked the prosecutor what his position was. In response, the 

prosecutor observed that, by the court’s order of February 17, 2015, the forfeiture proceedings 

were consolidated with the criminal proceedings and that plea counsel, Frank R. Young, was 

defendant’s attorney of record in both the forfeiture proceedings and the criminal proceedings 

(before Bezner became postplea counsel). The prosecutor continued:

“There’s no answer that was ever filed by Mr. Young in these cases, and 

Miss Bezner’s asking that the court follow very strictly the statute; and the statute 

indicates in subsection (F) [(id. § 9(F))] that the hearing must be held within 60 

days after filing of the answer. It’s our position that no answer was ever filed. The 

order that was entered on February 17th is merely that probable cause was found to 

hold the funds pending the formal filing of forfeiture, which we did. We filed a 

complaint for forfeiture in both matters.”

¶ 37 In any event, the prosecutor pointed out, section 10 of the Drug Asset Forfeiture 

Procedure Act (id. § 10) provided “a stay of time periods when the property [was] seized for 

evidence,” and “the time periods for instituting judicial and non-judicial proceedings [were] not 

[to] begin until the property [was] no longer necessary for evidence.”
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¶ 38 After hearing the arguments, Judge O’Shaughnessy denied the amended motion to 

withdraw the guilty pleas. He found that “the agreements of February 17, 2015, that were tendered 

to and approved by the court constitute[d] waivers on behalf of the defendant of any time tables or 

constraints required by the forfeiture statutes.”

¶ 39 Defendant then appealed from the judgments in case Nos. 13-CF-544 and 

15-CF-35. 

¶ 40 On November 15, 2018, the appellate court issued agreed-upon orders for summary 

remands in case No. 4-18-0319 (Vermilion County case No. 15-CF-35) and case No. 4-18-0320 

(Vermilion County case No. 13-CF-544). The remand orders, which were functionally identical in 

both cases, provided as follows:

“This cause is remanded to the circuit court for the filing of a correct, complete 

Rule 604(d) certificate indicating that counsel has examined both the guilty plea 

and sentencing transcripts and ascertained the defendant’s contentions of error in 

both the entry of his guilty plea and in sentencing; the opportunity to file a new 

post-plea motion[,] if defendant so wishes; a new hearing on the motion; a new 

judgment; a new notice of appeal; and strict compliance with the requirements of 

Rule 604(d).”

¶ 41 On October 16, 2019, on remand, postplea counsel filed the second amended 

motion in case Nos. 13-CF-544 and 15-CF-35. The second amended motion was identical to the 

amended motion except that the second amended motion raised, in addition, Judge

O’Shaughnessy’s alleged conflict of interest, and it challenged some fines and fees.

¶ 42 Along with the second amended motion, postplea counsel filed a new Rule 604(d) 

certificate in the two cases. The new certificate represented as follows:
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“1. I have consulted with the defendant in person, by mail, by phone, or by 

electronic means to ascertain the [d]efendant’s contentions of error in the entry of 

the plea of guilty and in the sentence;

 2. I have examined the trial court file and report of proceedings of the plea 

of guilty and the report of proceedings in the sentencing hearing; and

 3. I have made any amendments to the motion necessary for the adequate 

presentation of any defects in those proceedings.”

¶ 43 On October 21, 2019, in the two cases, defendant filed a pro se letter, in which he 

requested the circuit court “to allow the following issues and [arguments to] be added to the record 

of the [October 21, 2019,] motion to withdraw the guilty plea hearing.” One such issue was a 

“[c]onflict of interest because of Judge O’Shaughnessy[’s] personal and business relationship with 

a key witness in case [No.] [15]-CF-35[,] Wesley Burris.” The second issue that defendant wanted 

to raise was that “Mr. Young was ineffective for failing to ever file an answer to the original 

verified complaint.” Because of that failure, defendant himself “filed a pro se answer to the 

verified complaint,” “ask[ing] that the forfeited money be returned.” Thereafter, the State “failed 

to have the mand[a]tory hearing within 60 days of the defendant filing the answer to the verified 

complaint.” Consequently, defendant claimed, the State’s retention of the money “was illegal.” 

“How could the defendant *** make a knowing and voluntary decision to forfeit money that was 

never returned to him[?]” he asked rhetorically. 

¶ 44 On October 21, 2019, Judge O’Shaughnessy held a hearing on the second amended 

motion. The attorneys had nothing to add. They chose to rely on the arguments that they previously 

made in the hearing on the amended motion.
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¶ 45 Judge O’Shaughnessy denied the second amended motion. In doing so, he remarked 

that, at the time of the guilty plea, he was unaware that Burris would be a witness and that, besides, 

“Supreme Court Rule 63, subsection (d) [sic], [did] not require the [c]ourt to disqualify itself based 

upon a witness being a former client.” Judge O’Shaughnessy added that it was unclear how his 

former relationship with Burris could have had any effect on his decision to accept defendant’s 

guilty pleas.

¶ 46 On October 24, 2019, defendant filed notices of appeal in case Nos. 13-CF-544 and 

15-CF-35. Specifically, he appealed from the October 21, 2019, denial of his second amended 

motion. 

¶ 47 II. ANALYSIS

¶ 48 A. Postplea Counsel’s Fulfillment of Her Duties Under Rule 604(d)

¶ 49 1. Consulting With Defendant to Ascertain His Claims of Error

¶ 50 Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) required a certificate from 

postplea counsel. One of the assurances that postplea counsel had to give in her certificate was that 

she had “consulted with the defendant either by phone, mail, electronic means[,] or in person to 

ascertain defendant’s contentions of error in the sentence and the entry of the plea of guilty.” Id.

Accordingly, on October 16, 2019, in her new certificate, postplea counsel certified that she had 

“consulted with the defendant in person, by mail, by phone, or by electronic means to ascertain 

[his] contentions of error in the plea of guilty and in the sentence.”

¶ 51 That certification by postplea counsel is definitive unless we find, in our de novo

review (see People v. Neal, 403 Ill. App. 3d 757, 760 (2010)), that the record refutes the 

certification (see People v. Winston, 2020 IL App (2d) 180289, ¶ 14). In other words, we will take 

postplea counsel at her word unless the record affirmatively shows that she did not consult with 
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defendant to ascertain his claims of error in the entry of his guilty pleas and in the sentences. As 

we put it in Neal: 

 “The certificate itself is all this court will consider to determine compliance 

with Rule 604(d). [Citation.] ***

This said, we may consider the record where it undermines the certificate 

filed.” Neal, 403 Ill. App. 3d at 760; see also People v. Herrera, 2012 IL App (2d) 

110009, ¶ 13. 

¶ 52 Defendant maintains that the record, specifically his pro se letter of October 21, 

2019, undermines the certification by postplea counsel that she consulted with him to ascertain his 

contentions of error. Defendant argues that, in his pro se letter, he made the following additional 

contentions that postplea counsel had failed to “ascertain” by “consult[ing]” with him (Ill. S. Ct. 

R. 604(d) (eff. July 1, 2017)): 

“[He] asserted [in his pro se letter] that, ‘[a]long with [a]ll the points that [postplea 

counsel] brought up in her original motion[,] [he] would like to add [that plea

counsel] was ineffective for failing to ever file an [a]nswer to the Original Verified 

Complaint [in the forfeiture proceedings.]’ [Citation.] [Defendant] indicated that 

additionally he could not knowingly and voluntarily plead guilty when he did not 

understand his right to the return of the seized money. [Citation.]”

(The brackets enclosing the phrase “in the forfeiture proceedings” are defendant’s.) According to 

defendant, “there is no indication that post-plea counsel consulted with [him] about the[se] claims 

raised in his letter.” Therefore, defendant concludes, “the record undermined post-plea counsel’s 

assertions on October 16, 2019, that she consulted and discussed with [defendant] all of his claims 

concerning the entry of his guilty plea and his sentencing.”
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¶ 53 But this reasoning by defendant gets it backwards. If the record is silent except for 

the certificate, that is a reason to trust the certificate rather than to distrust it. The default 

assumption is that the certificate is true. This default assumption is overcome only by an 

affirmative showing, from the record, that the certificate is untrue. See Winston, 2020 IL App (2d) 

180289, ¶ 14; Herrera, 2012 IL App (2d) 110009, ¶ 13; Neal, 403 Ill. App. 3d at 760.

¶ 54 The records in these cases do not enable us to deny that postplea counsel consulted 

with defendant regarding his claims, including the claims that he subsequently wrote down in his

pro se letter to the circuit court. Postplea counsel could have talked with defendant about these

claims before defendant wrote about them to the court. Possibly, the reason why defendant felt 

moved to write his letter was that postplea counsel had heard the claims from his mouth and had 

told him that, in her opinion, the claims lacked any potential merit—an opinion with which he 

disagreed. Postplea counsel certified that she had consulted with defendant to ascertain his claims. 

If, as defendant admits, the records are silent on this question except for the certificate, then the

certificate prevails.

¶ 55 2. Making Any Necessary Amendments

¶ 56 Rule 604(d) requires postplea counsel to certify that he or she has “made 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). Accordingly, in case Nos. 13-CF-544 and 

15-CF-35, postplea counsel certified, “I have made any amendments to the motion necessary for 

adequate presentation of any defects in those proceedings,” that is, the guilty-plea proceeding and 

the sentencing proceeding.

¶ 57 In defendant’s view, the records refute that certification. The second amended 

motion, obviously, is part of the common-law records in the two cases. We can see what the second 
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amended motion lacks. Defendant argues that, by failing to include in the second amended motion 

“his claim that defense counsel was ineffective for failing to file an answer in the forfeiture 

proceedings and securing the return of the seized money,” postplea counsel caused a “waiver” of 

that claim.

¶ 58 To characterize defense counsel—more specifically, in this context, plea counsel—

as “ineffective” is to invoke “an accused’s sixth amendment right to the effective assistance of 

counsel” (U.S. Const., amend. VI). See People v. Hampton, 149 Ill. 2d 71, 107-08 (1992). 

Defendant cites no case holding that the sixth amendment right to the effective assistance of 

counsel extends to civil forfeiture proceedings. See United States v. $292,888.04 in U.S. Currency, 

54 F.3d 564, 568 (9th Cir. 1995) (holding that, even if the forfeiture could be considered punitive, 

“no [s]ixth [a]mendment right to counsel attached in this case because imprisonment [was] not 

authorized by any of the civil forfeiture statutes invoked by the [g]overnment in its complaint”).

In enumerating plea counsel’s shortcomings, postplea counsel was expected to serve as a criminal

defense attorney, not a civil malpractice attorney. The duty of postplea counsel under Rule 604(d) 

was to “ma[k]e any amendments to the motion necessary for adequate presentation of any defects 

in those proceedings”—meaning the proceedings on the guilty pleas and the sentences, not the 

civil forfeiture proceedings. (Emphasis added.) Ill. S. Ct. R. 604(d) (eff. July 1, 2017).

¶ 59 To be sure, the circumstances here were unusual in that the civil forfeiture

proceedings and the criminal proceedings were intertwined. The forfeiture cases (case Nos. 

15-MR-31 and 15-MR-35) were consolidated with the criminal cases (case Nos. 13-CF-544 and 

15-CF-35). Not only that, but the forfeiture to the State of the $246,864 in United States currency 

was a term of the plea agreement in the criminal cases. Although, in the forfeiture cases, defendant 

lacked a sixth amendment right to the effective assistance of counsel, he clearly had that right in 
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the plea negotiations in the criminal cases—negotiations that encompassed the disposition of the

currency (see People v. Hale, 2013 IL 113140, ¶ 16).

¶ 60 More precisely, defendant had “the constitutional right to be reasonably informed 

with respect to the direct consequences of accepting or rejecting a plea offer.” (Emphasis in 

original and internal quotation marks omitted.) Id. A direct consequence of pleading guilty would 

have been an effectuation of the terms of the plea agreement, including the term that defendant 

would forfeit the $246,864. Thus, when it came to the $246,864, all plea counsel had to do was 

advise defendant that, by pleading guilty, he would forfeit the $246,864, as the plea agreement 

provided. That would be the direct consequence. The sixth amendment and, therefore, Rule 604(d) 

were indifferent to whether plea counsel advised defendant on available defenses to the civil

forfeiture actions. Such advice on the merits of collateral proceedings would have been outside the 

purview of “effective assistance,” a sixth amendment concept. See People v. Thomas, 2017 IL App 

(4th) 150815, ¶ 16; Harris v. Allen, 929 F.2d 560, 562 (10th Cir. 1991).

¶ 61 But let us assume, for the sake of argument, that we are wrong about collaterality

in this instance. Let us assume that, in the particular circumstances of case Nos. 15-CF-25 and 

13-CF-544, the civil forfeiture proceedings were not collateral, considering that (1) the forfeiture

of the $246,864 was an explicit term of the plea agreement, (2) the forfeiture cases and the criminal 

cases were consolidated, and (3) defense counsel in the forfeiture cases was plea counsel in the 

criminal cases. Let us assume that, with these eggs scrambled together, there no longer was any 

meaningful distinction between the criminal cases and the forfeiture cases. Even on that 

assumption, the ineffectiveness claim was unsalvageable by any conceivable amendment.

¶ 62 One problem with the envisioned claim of ineffective assistance is that it is

internally inconsistent.
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¶ 63 On the one hand, defendant criticizes postplea counsel for failing to incorporate 

into the second amended motion his pro se claim that plea counsel was ineffective by neglecting 

to file answers in the civil forfeiture cases.

¶ 64 On the other hand, defendant criticizes postplea counsel for failing to raise an 

ineffectiveness theory that would presuppose the filing of answers in the forfeiture cases.

Defendant’s entitlement to the seized funds would presuppose the filing of an answer—which, 

paradoxically, he complains that Young never filed. Defendant argues, “The amended motion did 

not even aver that [defendant] did not know that he was potentially entitled to the seized funds, a 

factual point that [defendant] tried to unsuccessfully raise in his later pro se letter to the circuit 

court that was disregarded.”

¶ 65 Fully unpacked, such a claim of ineffective assistance would look something like 

this. Section 9(F) of the Drug Asset Forfeiture Procedure Act (725 ILCS 150/9(F) (West 2014)) 

provided that “[t]he hearing [on the complaint for forfeiture had to] be held within 60 days after 

filing of the answer unless continued for good cause.” Answers, according to this theory, were 

filed (or were they?), but no trial was held within 60 days. Because the State supposedly had blown 

the 60-day deadline in section 9(F), the forfeiture proceedings, at the time of the plea agreement, 

were already vitiated. Cf. Four Thousand Eight Hundred Fifty Dollars, 2011 IL App (4th) 100528, 

¶ 35 (holding that “the cumulative 97-day deadline in sections 5 and 6(A) of the [Drug Asset 

Forfeiture Procedure] Act [(725 ILCS 150/5, 6(A) (West 2006))] is a mandatory procedure, the 

disregard of which vitiates the contemplated forfeiture”).

¶ 66 For defendant, that would have been important to know. Here is why. If the 

underlying facts had been against him in the forfeiture cases—if it was clear that the outcome of 

those cases, after a trial, would have been the forfeiture of the currency to the State anyway—the 
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forfeiture of the currency might not have seemed much of a concession in the plea negotiations. 

If, however, unbeknownst to defendant—because plea counsel had failed to so advise him—

defendant had a surefire procedural defense in the forfeiture cases, namely, the State’s having 

missed the 60-day deadline in section 9(F), the forfeiture of the currency, in the plea negotiations, 

would have been a real concession. It would have been a substantial concession as opposed to a 

shrugging of the shoulders or the concession of a foregone conclusion. Advised of his knockdown 

procedural defense, defendant would have understood that he was giving up something solid, 

something big, in the plea negotiations as opposed to giving up something that, effectively, he 

already had lost, or so the writing on the wall might have otherwise suggested to him. Cf. People 

v. Mendez, 336 Ill. App. 3d 935, 939 (2003) (holding that a plea counsel can be ineffective by 

failing to advise the defendant of an available defense, thereby making the guilty plea inadequately 

informed). 

¶ 67 The trouble is, this section 9(F) defense evaporates on closer inspection. Its fatal 

weakness is this: apparently, a valid answer was never filed in either of the forfeiture cases. 

Granted, the second amended motion alleges that on March 23, 2015, “Henry Taylor filed his 

answer” in both of the forfeiture cases. By “Henry Taylor,” though, the second amended motion 

must mean defendant pro se—who was represented by the plea counsel, Young, in both of the 

forfeiture cases. In the hearing on the amended motion to withdraw the guilty pleas, the prosecutor 

insisted that, because Young was the attorney of record for defendant in both of the forfeiture 

cases, no answer (effectively) was ever filed in those cases. Apparently, that was why, in the 

hearing on the amended motion, postplea counsel made the highly creative argument that the 

“Agreed Order” of February 17, 2015 (stipulating that the State had shown reasonable cause for a 

source-of-bond hearing) was a preemptive answer to forfeiture complaints that had not yet been 
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filed. Evidently, postplea counsel realized that pro se filings by represented parties did not count. 

See In re Sean N., 391 Ill. App. 3d 1104, 1106 (2009). 

¶ 68 “Hybrid representation,” that is to say, self-representation simultaneous with

representation by an attorney, requires special permission from the circuit court, which, as far as 

we know, was never given to defendant. See Gerill Corp. v. Jack L. Hargrove Builders, Inc., 128 

Ill. 2d 179, 200 (1989); Sean N., 391 Ill. App. 3d at 1106. Because defendant was represented in 

the forfeiture cases, any pro se answers did not count as answers. See Sean N., 391 Ill. App. 3d at 

1106; People v. James, 362 Ill. App. 3d 1202, 1205 (2006) (holding that, “when a defendant is 

represented by counsel, the defendant generally has no authority to file pro se motions, and the 

court should not consider them”). Defendant himself confirms our impression that only pro se

answers were filed to the complaints for forfeiture. In his letter to the circuit court, defendant 

maintained “ ‘[that defense counsel] was ineffective for failing to ever file an [a]nswer to the 

Original Verified Complaint [in the forfeiture proceedings.]’ ” (We quote from defendant’s brief, 

in which he quotes from his pro se letter.) The answers, then, must have been filed by defendant 

pro se. The record does not appear to show otherwise. In our review of the common-law records 

provided to us, we have come across no civil forfeiture answers signed by Young. 

¶ 69 Because a fundamental premise of this ineffectiveness claim—namely, the filing of 

valid answers in the forfeiture cases—appears to be false, we conclude that further amendments to 

the ineffectiveness claim would have been futile and, hence, unnecessary. (Again, this is assuming, 

for the sake of argument, that there could be such an ineffectiveness claim despite the general rule 

that civil forfeiture proceedings are collateral.)

¶ 70 The failure to file answers in the forfeiture cases could not have been ineffective 

assistance either. There were no judgments against defendant by default. He suffered no apparent 
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prejudice from the omission of answers to the State’s forfeiture complaints. See People v. Shipp, 

2020 IL App (2d) 190027, ¶ 31 (explaining that the failure to establish either deficient performance 

by defense counsel or resulting prejudice is fatal to an ineffectiveness claim). 

¶ 71 In sum, then, we find in the records no affirmative refutation of postplea counsel’s 

certification that she “made any amendments to the motion necessary for adequate presentation of 

any defects in [the guilty-plea and sentencing] proceedings.” For the reasons we have discussed, 

the conclusory ineffectiveness claim in the second amended motion was devoid of potential merit. 

It was unrepairable by any possible amendment. Legally unmeritorious amendments are not 

“necessary” amendments. Ill. S. Ct. R. 604(d) (eff. July 1, 2017). Therefore, again, the Rule 604(d) 

certificate will prevail.

¶ 72 3. Supplying by Affidavit the Facts That Do Not Appear of Record

¶ 73 According to postplea counsel’s argument in the hearing on the amended motion to 

withdraw the guilty pleas, defendant “was led to believe” that he already had forfeited the seized 

currency. Defendant argues that, if indeed plea counsel had misadvised him about his chances for 

defeating the actions for a civil forfeiture of the currency, postplea counsel should have provided 

an affidavit to that effect instead of making an unsupported assertion to the circuit court. “When 

the motion is based on facts that do not appear of record[,] it shall be supported by affidavit ***.” 

Ill. S. Ct. R. 604(d) (eff. July 1, 2017). Defendant maintains that “[p]ost-plea counsel’s failure to 

file the requisite affidavits or [to] call [defendant] to testify in support of his allegations violated 

Rule 604(d).” See People v. Bridges, 2017 IL App (2d) 150718, ¶ 9 (explaining that, “under Rule 

604(d), facts that do not appear of record must be supported by an affidavit” and, therefore, “to 

fulfill her duty to amend [the] defendant’s motion, counsel had to attach an affidavit substantiating 

the new allegations”).
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¶ 74 Plea counsel could have fallen down in his duty to advise defendant of a section 

9(F) defense in the forfeiture proceedings only if, objectively speaking, there was such a defense—

and, as we have explained, the record tends to suggest that there was no such defense. Therefore, 

amending the postplea motion so as to allege and substantiate the omission by plea counsel to 

advise defendant of a (nonexistent) section 9(F) defense was not “necessary.” Ill. S. Ct. R. 604(d) 

(eff. July 1, 2017).

¶ 75 B. The Alleged Conflict of Interest of Judge O’Shaughnessy

¶ 76 Defendant argues that, because Judge O’Shaughnessy did not recuse himself or 

assign another judge to adjudicate the claim that he was under a conflict of interest, defendant was 

denied a fair hearing on his second amended motion. But defendant never moved that Judge 

O’Shaughnessy recuse himself or that he assign another judge to adjudicate the claim that he was 

under a conflict of interest.

¶ 77 Under section 114-5(d) of the Code of Criminal Procedure of 1963 (725 ILCS 

5/114-5(d) (West 2016)), a party may, “at any time,” move for a substitution of the judge “for 

cause.” Alternatively, a party may move for a recusal under Illinois Supreme Court Rule 63(C)(1) 

(eff. Jan. 1, 2016). Defendant was continuously represented in case Nos. 15-CF-035 and 

13-CF-544, and in neither of those cases did plea counsel or postplea counsel file a section 114-

5(b) motion for a substitution of judge or a Rule 63(C)(1) motion for recusal.

¶ 78 True, as defendant says, he filed a “pro se motion[,] *** supported by a notarized 

affidavit,” “averr[ing] that Judge O’Shaughnessy’s personal friendship and prior professional 

relationship with a potential witness against him, Burris, cause a conflict of interest in his case.”

“[W]hen a defendant is represented by counsel,” however, “the defendant generally has no 

authority to file pro se motions, and the court should not consider them.” James, 362 Ill. App. 3d 
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at 1205. (The only exception of which we are aware is if the pro se motion alleges ineffective 

assistance. See id. at 1206.) 

¶ 79 The only motion by defense counsel alleging a conflict of interest on the part of 

Judge O’Shaughnessy was the second amended motion—and the second amended motion

requested neither a substitution of judge nor a recusal. Instead, the second amended motion merely 

contended that, because of Judge O’Shaughnessy’s relationship with Burris, defendant should be 

allowed to withdraw his guilty pleas. Here is all that the second amended motion had to say 

regarding the purported “Conflict of Judge O’Shaughnessy”:

 “43. Judge O’Shaughnessy had a lengthy professional relationship with 

Wes Burris, who was listed as a potential witness against [defendant]. 

 44. [Defendant’s] decision to plead guilty could have been based on the 

judge’s relationship with a witness against him.

 45. If a decision to enter a plea of guilty is based upon a judge’s relationship 

with a witness, the defendant[ ] should be allowed to withdraw his guilty pleas.

 46. It was improper for Judge O’Shaughnessy to adjudicate Defendant’s 

Motion to Withdraw his Guilty Plea because of the relationship with Burris.”

We do not see in those paragraphs a request for recusal or substitution. 

¶ 80 Granted, merely pointing out the omission of a motion for recusal or substitution 

does not answer the question of whether Judge O’Shaughnessy was under a conflict of interest that 

made the guilty-plea proceedings unfair, as the second amended motion claims. This claim, 

though, is little more than a bald assertion. Defendant does not cite any authority holding that a 

judge’s prior representation of a witness, in apparently another matter, is disqualifying.
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¶ 81 Illinois Supreme Rule 63(C)(1)(e)(vi) (eff. Feb. 2, 2017) provides that, for a judge 

to be disqualified, the material witness must be the judge, someone related to the judge, or the 

spouse of someone related to the judge. More specifically, the rule provides as follows: 

 “(1) A judge shall disqualify himself or herself in a proceeding in which the 

judge’s impartiality might reasonably be questioned, including but not limited to 

instances where:

 * * *

(e) the judge or the judge’s spouse, or a person within the third 

degree of relationship to either of them, or the spouse of such a person:

 * * *

(iv) is to the judge’s knowledge likely to be a material 

witness in the proceeding.” 

It was never suggested that Burris was related to Judge O’Shaughnessy by blood or marriage.

¶ 82 Admittedly, Rule 63(C)(1)(e)(vi) is, by its terms, open-ended. It uses the phrase 

“including but not limited to instances.” Ill. S. Ct. R. 63(C)(1) (eff. Feb. 2, 2017). The instances 

are non-exhaustive. The essential test is whether “the judge’s impartiality might reasonably be 

questioned.” Id. The word “reasonably” signifies an objective standard. Judge O’Shaughnessy’s

initial ambivalence as to whether he ought to rule on the amended motion to withdraw the guilty 

pleas is not determinative on the question of whether, from an objective point of view, his 

impartiality might reasonably be questioned. We have found no Illinois case that is on point, but

in other jurisdictions the general view appears to be that a witness’s prior client relationship with 

the judge, by itself, is not grounds for mandatory recusal unless the prior client relationship was 

connected to the present litigation. Cain v. Hershewe, 760 S.W.2d 146, 148 (Mo. Ct. App. 1988); 
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In re Disqualification of Rothgery, 885 N.E.2d 245, ¶ 4 (Ohio 2005); National Auto Brokers Corp. 

v. General Motors Corp., 572 F.2d 953, 958 (2d Cir. 1978). Defendant has not alleged that Judge 

O’Shaughnessy or Acton and Snyder represented Burris in connection with the present litigation.

We see no convincing case for mandatory disqualification and, therefore, no abuse of discretion 

in the denial of the second amended motion. See People v. Urr, 321 Ill. App. 3d 544, 547 (2001) 

(holding that “[i]t is within the trial court’s discretion whether to allow the withdrawal of a guilty 

plea, and its judgment will not be overturned absent an abuse of that discretion”). In other words, 

we are unable to say that the denial of the second amended motion was arbitrary, fanciful, or 

unreasonable or that it was a decision with which every reasonable mind would disagree. See 

People v. Santos, 211 Ill. 2d 395, 401 (2004).

¶ 83 III. CONCLUSION

¶ 84 For the foregoing reasons, we affirm the circuit court’s judgment.

¶ 85 Affirmed.