NO. 4-02-0686

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

		Plaintiff-Appellee,			)	Circuit Court of

		v.						)	Champaign County

TROI STARKS,						)	No. 01CF1011

    		Defendant-Appellant.		)

								)	Honorable

								)	John G. Townsend,

								)	Judge Presiding.				

		JUSTICE MYERSCOUGH delivered the opinion of the court:

		Defendant, Troi Starks, appeals from a final judgment

of conviction on his plea of guilty to one count of armed robbery

and sentence of 20 years in prison.  We affirm as modified and

remand with directions.

I. BACKGROUND

		On October 4, 2001, defendant pleaded guilty to one

count of armed robbery with a dangerous weapon (720 ILCS 5/18-

2(a)(2) (West 2000)) as part of an open plea agreement with the

State.  The State agreed to dismiss six other counts in the

indictment.  On November 5, 2001, the trial court sentenced

defendant to 20 years in the Department of Corrections (DOC).

		Defendant later filed a notice of appeal and sent a

letter to the trial judge alleging ineffective assistance of

trial counsel and seeking a sentence reduction.  He alleged that

his trial counsel, the public defender, had told defendant that

the sentence would be 10 to 15 years rather than 20 years and

that no witnesses that defendant wanted to testify were called at the sentencing hearing.

		On December 18, 2001, the trial court held a hearing as

a result of that letter and granted the public defender's motion

to withdraw based upon defendant's allegation of ineffective

assistance of counsel.  New counsel was appointed, and on

February 8, 2002, defendant filed a motion to withdraw plea.  On

August 12, 2002, defendant's new counsel filed a "[c]ertificate

of [c]ompliance with Rule 604(d)," which stated:

		"I [,] the undersigned attorney [,] hereby

certify that I have consulted by mail and in

person to learn his contentions of error and

I have been furnished a copy of the

transcripts of the proceedings of the plea

hearing and the sentencing of the defendant

and the file in this matter.  I have filed

the appropriate [m]otion to [w]ithdraw. 

Respectfully [s]ubmitted, Troi Starks By

David N. Rumley [,] his attorney[.]"

		The trial court denied defendant's motion to withdraw

his plea or alternatively to reduce his sentence.  This appeal

follows.

II. ANALYSIS

A. The Record Shows Strict Compliance With the Certificate

Requirement of Rule 604(d)

		Legal questions on trial court compliance with supreme court rules are reviewed de novo.  People v. Hayes, 336 Ill. App. 3d 145, 147, 782 N.E.2d 787, 789 (2002).

		Supreme Court Rule 604(d) states:

		"The defendant's attorney shall file 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

sentence or the entry of the plea of guilty,

has examined the trial court file and report

of proceedings of the plea of guilty, and has

made any amendments to the motion necessary

for adequate presentation of any defects in

those proceedings."  188 Ill. 2d R. 604(d).

		In People v. Janes, 158 Ill. 2d 27, 630 N.E.2d 790 (1994), our supreme court has interpreted the rule strictly:  

		"[A] rule that counsel need not strictly

comply merely generates disputes on review,

like the instant one, over whether the record

shows that there has been substantial

compliance with the provisions of Rule

604(d).  Accordingly, where the record herein

does not show strict compliance with the

certificate requirement of Rule 604(d), we

reverse that portion of the trial court's

judgment denying defendant's motion to

withdraw his guilty plea."  Janes, 158 Ill. 2d at 35, 630 N.E.2d at 793.

		Since Janes, the appellate courts have struggled with strict compliance with Rule 604(d) when faced with a record

showing actual compliance with Rule 604(d).  Clearly, if the

record demonstrates that the purpose of Rule 604(d) is satisfied, 

remand for a word change when no specific form has been mandated

by opinion, order, or rule is a waste of judicial resources.  

		This does not ignore the supreme court's reaffirmation of Janes in People v. Shirley, 181 Ill. 2d 359, 370-71, 692 N.E.2d 1189, 1195 (1998), or signal a return to an analysis of whether failure to comply with Rule 604(d) was harmless or

prejudicial.

		The State cites People v. Wyatt, 305 Ill. App. 3d 291, 712 N.E.2d 343 (1999), for the proposition that the words used in

the certificate need not be synonymous so long as the record

clearly demonstrates, on its face, strict compliance with Rule

604(d):  "The certificate need not recite word for word the

verbiage of the rule."  Wyatt, 305 Ill. App. 3d at 297, 712 N.E.2d at 347-48.  The State is correct that Wyatt stands for the proposition that "[a] Rule 604(d) certificate functions as a

basis upon which the trial court can determine that defense

counsel has performed his duties under the rule and gives the

record a clear indication of the extent of counsel's

performance."  Wyatt, 305 Ill. App. 3d at 2987, 712 N.E.2d at 347.

		Here, defendant argues the Rule 604(d) certificate is

flawed because it states only "furnished a copy of the

transcripts," but does not state that defense counsel had "examined the trial court file and report of proceedings of the

plea of guilty (188 Ill.2d R. 604(d))."  However, the record and

transcript of the proceedings in the trial court clearly

demonstrate strict compliance.  The motion to withdraw the guilty

plea specifically references receipt of the record of the

sentencing hearing, to wit:  

			"5.  On or about January 17, 2002, [d]efendant's

counsel received the record of [d]efendant's sentencing

hearing conducted November 05, 2001.

			***

			7.  That the court gave insufficient weight to the

mitigation evidence and arguments at sentencing.

			8.  That the court gave excessive weight to the

biased and misleading aggravation evidence and argument

at sentencing."

Moreover, the transcript was used by the State to cross-examine defendant and was admitted as an exhibit during the hearing

without objection by defendant's counsel.  Defendant's counsel

actively participated in the hearing on the motion to withdraw

the guilty plea, and, at the conclusion of that hearing, in open court, defendant's counsel filed his Rule 604(d) certificate.  Indeed, defendant was present and in counsel's company throughout

the hearing.  Defense counsel's questions show knowledge of the

transcript and of defendant's arguments.  

		We agree with the supreme court's concern that disputes on review should not degenerate into questions over whether the record shows substantial compliance.  Janes, 158 Ill. 2d at 35, 630 N.E.2d at 793.  Further, we noted in People v. Edwards, 228 Ill. App. 3d 492, 499, 592 N.E.2d 591, 595 (1992), "although this

rule is one to be complied with by defense counsel, the trial

courts can help ensure that compliance is met."  We would add

that it is also in the interest of the State to ensure that

strict compliance is observed as the State also has an interest

in avoiding a failure to comply with Rule 604(d).

		The State relies on our decision in People v. Wilson, 295 Ill. App. 3d 228, 692 N.E.2d 422 (1998), arguing an inartfully worded certificate satisfies the requirements of Rule

604(d) where the record shows the transcript of the proceedings

in the court file and defense counsel's reference in argument

thereto.   In Wilson, the Rule 604(d) certificate stated that counsel had "'obtained the trial court file from Judge Patton's

court reporter and examined that file in Judge Patton's

courtroom.'"  Wilson, 295 Ill. App. 3d at 238 , 692 N.E.2d at 429.  Further, the appellate court found the court reporter's "usual

procedure would have been *** to place the transcripts of those

hearings in the court file, the file to which counsel referred in

the Rule 604(d) certificate would have likely contained the

‛report of proceedings.'"  Wilson, 295 Ill. App. 3d at 238-39, 692 N.E.2d at 429.  (We note the Wilson court assumes the usual court reporter procedure.)  We find, nonetheless, the actual record in the case at bar sufficient to affirm.  However, we note here also that neither the November 5, 2001, report of proceedings of defendant's sentencing hearing nor the August 12,

2002, report of proceedings of the hearing on defendant's motion

to withdraw his guilty plea bears file stamps to show they have been filed in the Sixth Judicial Circuit, although they are in

this court's file.  Further, the docket sheet fails to evidence

the filing of the Rule 604(d) certificate, although the

certificate is file stamped, was submitted in open court as

evidenced by the transcript, and is also in the court file.   

		We find that review of the record in total in this

case, including the transcript of proceedings and the Rule 604(d)

certificate, demonstrate compliance with the requirement of the Rule 604(d).

B. Amendment of Judgment of Sentence

		Defendant alleges and the State concedes that the

judgment of sentence in this case is erroneous in that it does

not reflect that count IV was amended at the guilty plea hearing

by striking "firearm, namely: a handgun" and inserting "dangerous

weapon."  Further, the statutory citation should be changed to a

violation of section 18-2(a)(1) (720 ILCS 5/18-2(a)(1) (West

2000)) from section 18-2(a)(2) (720 ILCS 5/18-2(a)(2) (West

2000)).

		Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b)) gives

the appellate court the power to modify any judgment or order

from which the appeal is taken.  A mistake in a judgment of

sentence is not reversible error but may be corrected at any

time.  People v. Pittman, 75 Ill. App. 3d 683, 689, 394 N.E.2d 702, 706 (1979).  We, therefore, modify and remand and direct the

trial court to correct the judgment of sentence of to say:  "720 ILCS 5/18-2(a)(1)"."

C. Defendant's Sentence Was Not Excessive

		Defendant further argues that his 20-year prison sentence for armed robbery was excessive in light of his strong rehabilitative potential, his age, his remorse, his efforts to

improve himself, and the lack of physical injuries among the

victims.  

		A reviewing court has the power and authority under

Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)) to reduce

a sentence imposed by the trial court found to have constituted

an abuse of discretion.  People v. Center, 198 Ill. App. 3d 1025, 1032, 556 N.E.2d 724, 728 (1990).

		An abuse of discretion includes imposition of a sentence that is in violation of the principles of the

disproportionate-penalties clause.  People v. Stacey, 193 Ill. 2d 203, 209-10, 737 N.E.2d 626, 629 (2000).  Where a sentence falls

within statutory guidelines, it will not be disturbed on review

unless it is manifestly disproportionate to the nature of the

case.  People v. Kerkering, 283 Ill. App. 3d 867, 872, 671 N.E.2d 368, 372 (1996).  The sentencing range for armed robbery with a

dangerous weapon is 6 to 30 years.  730 ILCS 5/5-8-1(a)(3) (West

2000).  Defendant received a 20-year prison sentence.  The

sentence the trial court imposed here clearly falls within the

statutory guidelines.  The record shows that the trial judge considered both defendant's admission of guilt and his substance

abuse as mitigating factors and his criminal history, threat of

serious harm to others, and the need for deterrence as

aggravating factors.  No abuse of discretion has been

demonstrated.

		Therefore, we affirm the sentence the trial court imposed.

III. CONCLUSION

		We affirm defendant's conviction and sentence as

modified and remand with direction that the judgment of sentence be amended to reflect defendant's conviction of armed robbery

with a dangerous weapon under Ssection 18-2(a)(1) (720 ILCS 5/18-

2(a)(1) (West 2000)).

		Affirmed as modified and remanded with directions.

		COOK and TURNER, JJ., concurring.