## 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 . Jordan , 2013 IL App (2d) 120106

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. J IMMI E R. J ORDAN, Defendant-A ppellant.–THE PEOPL E OF THE STATE OF I L L I

NOI S, Plaintiff-Appellee
, v. J I MMI E R

. J ORDAN, Def endant- Appellant.

District & N o. Second District Docke t Nos. 2-12-0106, 2-12- 0108 cons.

Filed J une 28, 2013

Held (Note : This syl lab us

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by 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

. ) In consolidated proce eding s involving jury conviction s and pleas to multipl e offe nses wher e d ef en dant’s counsel moved to rec onsider only defe ndant’s sentenc e, the denial of the motion to rec onsider the sentenc e

was vaca ted and the cause was rema nded to allow the filing of a valid

cer tificate under Supreme Court Rule 604(d), an opportunity to file a new motion to withdraw the guilty plea and/or rec onsider the sentenc e, and for

a new m o t i o n hearing, since Rule 604(d) is intended to prese rve defe ndant’s right to a direc t appea l of both sentenc i n g and pleading issues, which may be lost if not proper ly raised due to a failure to strictly follow Rule 604(d).

Dec ision Under Review Appea l from the Circuit Court of Du Pag e County
, Nos. 11-CF- 1857, 10- CF-2588; the Hon. John J . Kinsella, Judge, pr esiding

.

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

Appea l Thomas A. L ilien a n d B r u ce Kirkham, both of State Appellate Def ender ’s Offic e, of Elg in, for appe llant.

Robert B. Be rlin, State’s Attorney
, of Wheaton (L isa Anne Hoffma n and Kristin M. Schwi n d, Assistant State’s Attorney s, of counsel), for the People.

Panel J USTI CE Z ENOF F de livered the judgme nt of the cour t, with opinion.
J ustices Hutchinson and J org ensen concur red i n t he judgme nt and opinion.

OP INION

¶ 1 A jury convicted defe ndant, J immie R. J ordan, of ag gravated driving under the influenc e of alcohol (625 I L CS 5/11-501(d)( 1)(G) (West 2010)) and ag g ravated driving while his license was revoke d (625 I L CS 5/6-303(d-1) (West 2010)). He was sentenc ed to concur rent 30-month probation terms (ca se No. 10-CF- 2588). L ater , the State petitioned to r evoke his probation. In a separ ate prosec ution, he was charg ed with ag g rava ted battery (72 0 I L CS 5/12- 3.05(d)( 4) (West 2010)) (ca se No. 11-CF- 1857). At a consolidated h ea ri n g, the trial court

acc epted defe ndant’s admission to the probation-r evocation pe tition and his nonne g otiated
guilty plea to aggr av ated battery

. At another hearing, defe ndant was rese ntence d to 36 months’ imprisonment for eac h traff ic offe nse and 42 months’ imprisonment for ag g ravated battery
, all sentenc es to run concur rently

. The trial court admonished defe ndant pursuant to I llinois Supreme Court Rule 605(b) (eff

. Oct. 1, 2001). By counsel, defenda nt timely filed

s ep arate motions to rec onsider the sentenc es in both case s. In case No. 11-CF- 1857, his attorney filed a cer

tificate of compliance with I llinois Supreme Court Rule 604(d) (ef f. J uly 1, 2006). It stated, in pertinent par t: “1. I have consulted with the Def endant in person to asce rtain his contentions of err or in the imposit ion of the sentenc e; 2. Ihave e x amined the tria l court file a nd repor t of proce eding s of the plea ; and
3

. I have made such amendments to the motion nece ssary for an ade qu at e prese ntation of any

defe cts in the proce eding s.” The trial court denied the motions. Def endant timely appea led in both case No. 10-CF- 2588 (appe al No. 2-12-0108) and case No. 11-CF- 1857 (appe al No. 2-12-0106)

. We consolidated the appe als. ¶ 2 On appeal, defendant c ontends that the orde rs deny ing his postjudg ment motions m ust be vacated
, and the cause s rema nded, because counsel’s certific ate did not comply strictly

-2-with Rule 604(d). We agree

. 1 ¶ 3 As pertinent here
, Rule 604(d) states that counsel “shall fi l e wi t h t h e t ri al co urt a

cer tificate stating that the attorn ey h as consulted with the defe ndant either by mail or in
person to a scer

tain [t he] de fenda

nt’s contentions of error in the sentenc 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 amendmen t s t o the motion nece ssary 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). Relying on People v. Dryde n , 2 0 1 2 I L App (2d) 110646, defe ndant contends that the cer tificate was fata lly defic ient beca

use i t failed to state t hat hi s attorney had consulted with him to asce rtain hi s contentions of er

ror in the e ntry

of the plea

of guilty

. ¶ 4 Rule 604(d) requires strict compliance

. People v. Janes
, 158 I ll. 2d 27, 33 (1994). Our revie w is de novo

. People v . Johnson , 363 I ll. App. 3d 356, 359 (2006). ¶ 5 In Dryde n , the defe ndant pleade d guilty to ag g rava ted drivin g un d er the influence of alcohol and was sentenc ed to 20 y ear s’ imprisonment. He filed a combined motion both to withdraw the plea and to rec onsider the sentenc e. His attorney filed a Rule 604(d) cer tificate stating that he had consulted with the defendant to ascerta in his contentions of err or in the entry of the plea of guilty

. On appea l, we held that the cer tificate was defe ctive, as it “did not expli citly state that counsel asce rtained [t he] defe ndant’s contentions of err or in the sentenc e,

even though the motion included a reque st to rec onsider the sentenc e.” Dryde n , 2012 I L App (2d) 110646, ¶

8. We continued: “The State points out that the rule’s consultation require ment is phrase d in the disjunctive: counsel must cer tify that he soug ht ‘to asce rtain defe ndant’s contentions of

err or in the sentenc e or the entry o f t he plea of guilty .’ (Emphasis added.) [C itation.] Howeve r, in this context, it is clea r that ‘or’ means ‘and.’ [C itation.] It would be absurd
to sug g est that wher e, as here
, counsel moves both to withdraw the plea and to rec onsider the sentenc e, counsel may arbitra rily choose to consult with the defe ndant about only one ty pe of e rror .” Id. ¶ 9. ¶ 6 Dryde n i s ar gu ab l y d i s t i n guishable in that the defe ndant there filed motions both to withdraw the guilty plea and to rec onsider the sentenc e. Her e, as noted, defe ndant moved only to rec onsider his sentenc es. Ne verthe less, we c onclude that “ or” still means “a nd.” ¶ 7 When we interpre t a s up re m e co urt ru l e, o ur g oal is to asce rtain and eff ectuate the
supreme court’s intent. Friedman v. Thorson
, 303 I ll. App. 3d 131, 135 (1999). We first look
to the rule’s languag e; if it is unambiguous, we must eff ectua te it without invoking extrinsi c aids. Id. Ho wever, if it is ambiguous–susceptible to more than one rea sonable interpre tation–we may

look beyond the languag e to the purpose it aims to serve. Id. ¶ 8 As Dryde n noted, “or” is disjunctive. Eleme ntary School District 159 v. Schiller
, 221 I ll.

Def end ant con ced es tha t no Rule 604( d) cer ti fi cat e was re qui re d in cas e No. 10- CF- 2588
, 1

a p r o b a t i o n- re vocati on pro cee din g (s ee In re J.E.M .Y

. , 289 I ll

. App. 3d 389, 391 (19 97) ), but he
not es tha t any Rule 604( d) viola ti on in cas e No. 11- CF- 1857 re qui re s new pro cee din gs in bot h cas es,

as the pot ent ia l m odi fi cat ion of th e s ent enc e i n ca se No. 11

- CF- 1857 m ight a ff ect the tr ia l cou rt ’s dec is ioninca se No. 10

- CF- 2588 . See In re Vin cen t Y

. , 337 I ll . App. 3d 7 52, 7 58 ( 2003 ).

-3-2d 130, 145 (2006). “As used in its ordinary sen s e, t he word ‘or’ marks an alterna tive indicating [t h at ] t h e various parts of the sentenc e which it connec ts are to be taken
separ ately .” Id. Howeve r, the strict meaning of “or” “is more rea dily depar ted from than that of other w ords.” John P. Moriarty, I nc. v. M urphy , 387 I ll. 119, 129 (1944). Where suc h a construction is nece ssary to eff ectuate the draf

ters’ intent, “or” m ay be construed to mean “and.” Id. As noted, this is precisely what wedid in Dryde n

. ¶ 9 Where, a s in Dryde n , the def endant moves both to withdraw his ple a and to r econside r his sent en ce , “o r” clea

rly means “and.” But wher e, as here
, the defe ndant moves only to

rec onsider his sentenc e, “or” become s ambiguous. Of course it cannot be strictly disjunctive; wher e the defe ndant m oves t o rec onsider h i s s entence, counsel cannot satisfy Rule 604(d) by cer ti fy i n g t h at he has asce rtained the defe ndant’s contentions only as to his plea. See Friedman
, 303 I ll. App. 3d at 135 (“supr eme court rules must be construed to avoid an absurd result”)

. But on the question of whether counsel may as ce rtain the defe ndant’s contentions only as to his sentenc e , or whether counsel must asce rtain his contentions, if any , as to both his sentenc e and his plea, rea sonable minds can differ

. I n d eed, though without specific ally analy

zing the issue, differ ent courts have assumed both meaning s. Compare People v. Prather
, 37 9 I l l

. App. 3d 763, 768 (2008) (although defe ndant moved only to

rec onsider his sentenc e, a cer tificate stating that counsel had asce rtained defe ndant’s contentions of “ ‘er

ror and sentenc e’ ” did not strictly comply with the rule’s require ment that he cer tify that he had asce rtained defe ndant’s “conte ntions of err or in the guilty plea hearing

as well as in the sentenc e” (empha sis added) ), with People v. Pack ard
, 259 I ll. App. 3d 681, 684 (1994) (whe re defe ndant “cha lleng es only his se ntence ,” the rule “cle arly require s that defe nse counsel cer

tify that he has consulted with defe ndant *** to asce rtain his contentions of er ror in the se ntence ”). ¶ 10 To us, the ambiguity is rea dily resolv ed b y refere nce to the purpose of the ce rtificate require ment, and specific ally the purpose of strict compliance

. “The purpose of complying strictly with Rule 604(d) is to safe guard a defe ndant’s right to a direc t appea l, ‘a right which
may be fore ver lost under the waiver rule if any appealable issue is not prop erly raised beca use Rule 604(d) ha s not been strictly followed.’ ” (Emphasis adde d.) People v . Heinz
, 259 I ll. App. 3d 7 0 9
, 7 1 1 -1 2 (1994) (quoting People v. Davis
, 255 I ll. App. 3d 647, 649 (1994)) ; se e also I ll. S. Ct. R. 604(d) (ef f. J uly 1, 2006) (“U

pon appea l any issue not r aised by the defe ndant in the motion to rec onsider the sentenc e or withdraw the plea of guilty and

vacate the judgme nt sha ll be deeme d waived.” ). Where a defe ndant enter s a nonneg otiated plea, “appe alable issues” ca n fall into two cate g ories: those as to the se ntence and those a s to the plea. See I ll. S. Ct. R. 604(d) ( eff . July 1, 2006). Counsel’s oblig ation is to avert the forf eit u re o f a n

y such issue, not just those issues that fall into one cate g ory or the other. Obviously
, counsel cannot aver t the forf eiture of any such issue unless he consults with the defe ndant to asce rtain all such issues, be they

rela ted to the sentenc e, the plea , or both. ¶ 11 T h i s is no less true wher e the defe ndant moves only to rec onsider his sentenc e. To be
sure, wher e the defe ndant files the motion pro se and is appointed counsel there afte r (see id. ), counsel might be inclined to assume that the defe ndant has filed that motion beca use he has

no contentions as to his plea. This is a dang erous assumption. The defe ndant might simply be unawa re of the rang e of viable attacks on his plea. Or, ironically
, h e m ight have

-4-interpre ted t oo strictly the t rial court’s admonishments under I l l i n o i s S upreme Court Rule

605(b)( 2) (ef

f. Oct. 1, 2001): that prior to taking an appea l the defe ndant must file a motion “to have the trial court rec onsider the sentenc e or to have the judgme nt vacated and for leave to withdraw the plea of guilty .” (Empha sis added.) That is, he might have understood “or ”

as strictly disjunctive–such that he believed that he could file o n l y o n e motion or the other–whe n of course he could file either motion or both

. See People v. Lindsay
, 239 I ll. 2d 522, 531 (2011) (re medy for cer tificate violation is rema

nd for “the opportunity to file a new motion to withdraw the guilty plea and/or rec onsider the sentenc e” (empha sis added) ). Wit h the right to a direc t appea l at stake, counsel should not mere ly assume that the defe ndant has knowing ly challeng ed only his sentenc e; rathe r, h e s h o uld consult with the defe ndant to confirm that a ssumption, or to di spel it. ¶ 12 A cer

tified consultation with the d ef en d an t as to both cate g ories of potential issues is

even more important wher e, as here
, the def endant’s motion to rec onsider his sentenc e is filed by counsel. In this case , counsel consulted with defe ndant to asce rtain his contentions of error as to the sentenc e on his plea, and counsel then filed a motion to rec onside r t h at sentenc e (as well as a motion to rec onsider the sentenc e on his probation admission). For all

we know, defe ndant had viable contentions as to his plea but counsel failed to even consider them. I f we wer e to hold that counsel strictly complied with Rule 604(d), those contentions would now be forf

eited, in obvious contravention of the purpose that strict compliance exis ts to serve. T his is perhaps the strong est proof that strict compliance did not occ ur. ¶ 13 Acc ording ly
, we reje ct any sug g estion that which motion is filed will dictate the extent of the consultation that the rule r equire s. To be sure, counsel must c ertify that he has made
any nece ssary amendments to “the motion.” I ll. S. Ct. R. 604(d) (ef f. J uly 1, 2006). But we do not rea d this require ment to indicate that, wher e “the motion” seeks only rec onsideration of the sentenc e, the consultation (and any resulting amendments) need perta in only to sentenc ing issues. Obviously
, a motion to rec onsider the sentenc e may b e amende d (1) to raise additional sentenc ing is s ues or (2) to add the substance of a motion to withdraw the plea. And indeed, the rule states that the re qu i red amendments are those “nec essar y for adequate prese ntation of any defe cts in those proce eding s.” (Emphasis added

. ) Id. Her e, “those proce eding s” can easily ref er to the “proc eeding s of the plea of guilty ,” the repor t of which counsel was require d to revie w. Id. Thus, t h e ru l e en v isions that, even wher e the motion filed seeks only rec onsideration of the sentenc e, the consultation (and any resulting amendments) will perta in to the plea as well. The p h rase “those proce eding s” can also be

rea d to ref

er to m ore than one procee ding, specifica lly the proceeding of t he plea of guilty and the proce eding of the sentenc ing hearing. I f the phrase wer e intended to ref er to only one

or the other, the rule would re fer to “that proc eeding ,” not the plura l “those proc eeding s.” ¶ 14 More importantly
, a su gges t i o n that the scope of the motion controls the scope of the consultation–rather than vice versa –puts the car

t befor e the horse. It is the consultation that should deter

mine which issues are pertinent and thus which motion (or motions) should be filed. (F or example, if the defe ndant has alre ady filed a pro se motion only to rec onsider the
sentenc e, it is the consult ation that should deter mine whether the m otion to rec onsider the
sentenc e should be amende d to include only additional s en t en cing issues or whether
, in addition, the substance of a motion to withdraw the plea should also be filed.) I f it wer e the

-5-scope of the motion that deter mines the scope of the consultation
, t h e p u rpose of the rule would be seriously undermined. In this case , we would be forc ed to hold that counsel strictly

co mplied with the rule wher e he aver ted the forf

eiture of any sentenc in g i s s u es , notwithstanding the forf

eiture of any issues conce rning the plea. We cannot imag ine that the
supreme court designed the rule, and insisted on strict compliance there with, to aver t the forf eiture of issues of only one ty pe or the other, as opposed to the forf eiture of any and all. ¶ 15 That said, we note here that we are not pr esuming that counsel wa s ineffe ctive. We ar e not presuming that, had counsel consulted with defe ndant about his plea, counsel would have discovere d an issue of merit. Indeed, t he consultation might have quickly reve aled that defe ndant had no desire to attack his plea, or that there was no basis to attack his plea. Thus, althoug h we hold that a consultation as to the p l ea was require d, and that counsel was require d to cer

tify such consultation in his Rule 604(d) cer tificate, we are not presuming that the consultation would have borne f ruit. ¶ 16 Neve rtheless, without the cer tified consultation as to the plea, we are left to specula te that defe ndant might have had s u ch co n t entions of err or and wished to pursue them, and thus might have forf

eited them. This prospec t is wholly at odds with the asser tion that co unsel strictly complied with the rule. Ag ain, stri ct co mp l i ance enable s us to know that a defe ndant’s postplea motion contained eve ry postplea contention he had, that no postplea contention was lost. I f we ca n n o t fee l secur e in that knowledg e, then, a fortiori
, strict compliance cannot have occur red. The point is that, wher e defe ndant could file both a motion
to rec onsider the se ntence and a motion to withdraw his plea in order to pr eser

ve all of his
appea l rights, but he filed only a motion to rec onsider the sentenc e, we cannot know that the decision not to move also to withdraw the plea was defe ndant’s d ecision based on proper advice and “consultation” with counsel unles s counsel’s Rule 604(d) cer tificate contains languag e re fer

ringto consultation about the plea. ¶ 17 This, ag ain, is the ultimate point: Rule 604(d) is designed to aver t forf eiture. Of c ourse, if counsel consults with the defe ndant about both his sentenc e and his plea, and if they decide to move only to rec onsider the sentenc e, any contentions as to the plea arewaived. Id. But that is, they are literally waived ; the defe ndant has voluntarily relinqui s h ed t h em afte r consultation with counsel. What the rule is designed to aver t, more technica lly
, is forfeiture
, the l oss of contentions that the defendant had no desire to abandon. See Peo p l e v. Phipps
, 238 I ll. 2d 54, 62 (2010) (“While forf eiture applies to issues that could have been raised but

wer e not, waiver is the voluntary relinquishment of a known right.”). I f counsel consults with the defe ndant about contentions of only one ty pe, he has not ensure d that the defe ndant has

no contentions of the other ty pe, and thus any s u ch contentions will be lost–without any inquiry into their m erits, wit hout any voluntary decision t o abandon them. Thus, to satisfy the purpose of

the rule, the consultation must ex tend to both. ¶ 18 In sum, wher e a defe ndant enter s a nonneg otiated plea and moves only to rec onsider his
sentenc e, Rule 604(d) require s counsel to consult wit h the defe ndant to asce rtain his contentions of err or, if any , as to both his se ntence and his ple a. Counsel the n must c ertify
, among other things, that he has consulted with the defe ndant “to asce rtain [t he] defe ndant’s contentions of err or in the sentenc e or the entry of the plea of gu i l ty .” I ll. S. Ct. R. 604(d) (ef f. Jul y 1, 2006). Although counsel’s use of “or” mig ht be ambiguous, “we will not fault

-6-counsel for using the language o f the rule.” People v. Mineau
, 2012 I L App (2d) 110666,

¶ 16. ¶ 19 We vacate the order s of the circ uit court of Du Pag e County denying defe ndant’s motions
to rec onsider his sentenc es, and we rema nd the cause s to allo w “(1) the filing of a [valid] Rule 604(d) cer

tificate; (2) the opportunity 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 motion hearing .” Lindsay , 239 I ll. 2d at 531.

¶ 20 Vac ated a

nd rema nded with direc tions.

-7-