NO. 4-01-0386

	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

RODNEY LITTLE,			 			)	No. 00CF1558

	Defendant-Appellant.		)	

	                     		)	Honorable

							)	Thomas J. Difanis,

							)	Judge Presiding.

_______________________________________________________________

	JUSTICE KNECHT delivered the opinion of the court:

	Defendant, Rodney Little, appeals from the trial

court's denial of his motion to reduce sentence following a

guilty plea contending the proceedings surrounding the filing and

hearing of the motion were pro forma only and, therefore, vio lated Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)).  We

reverse and remand with directions.

	In February 2001, defendant pleaded guilty to one count

of predatory criminal sexual assault of a child, a violation of

section 12-14.1(a)(1) of the Criminal Code of 1961 (720 ILCS

5/12-14.1(a)(1) (West 2000)).  On or about August 30, 2000,

defendant, who was over 17 years of age, committed an act of

sexual penetration of T.D.D., who was under 13 years of age, by

placing his penis in her anus.  At the time this occurred, the

victim's mother was picking up the victim's older sister at work. 

Defendant was the father of the victim's little sister and the

victim had lived with defendant her entire life.  She considered

him to be a father to her, the only father she had ever known.

	On April 6, 2001, the trial court sentenced defendant

to 15 years' imprisonment for predatory criminal sexual assault

of a child.  The court stated the sentence was necessary because

the offense was incredibly serious, constituted a brutal act, and

had a profound impact on both the victim and her family.

	At the close of the sentencing hearing, defense counsel

stated:

	"Since we're all here, Your Honor, this may

expedite it.  As I'm required by statute

before he can take an appeal to file a motion

to reconsider under the statute, Your Honor,

I'll file one Monday.  I'm gonna be here,

Your Honor, in this courtroom on April 25th at 10:45.  This'll be a five-minute motion,

Your Honor.  It is a four-minute motion, only

requiring that time.  There'll be no argu

ment."

	The motion to reduce sentence was filed on April 9,

2001, and stated in its entirety:

	"Comes now defendant by his attorney [(de

fense counsel)] and moves for a reduction of

his sentence pursuant to 730 ILCS 5/5-8-

1(c)."

	At the hearing on the motion to reconsider sentence the

following exchange occurred:

	"[DEFENSE COUNSEL]: As you remember, we sent

the [d]efendant to [prison].  This motion is

here, your Honor, only for one reason, and that is, I must statutorily comply when

there's a plea, to move to reconsider. 

That's a form argument only, your Honor.  And

that's it.  Thank you, your Honor.

		THE COURT: [Defense counsel], do I need a

	[Rule] 604(d) certificate?  This was a plea of 

	guilty wasn't it?  I think I need a [Rule] 604(d) 

	certificate.

		[DEFENSE COUNSEL]: I think you do, Judge, 

	and I'll prepare one and have it on file.

		THE COURT: I'll rule as soon as you have 

	that on file."

	On April 27, 2001, defense counsel filed a certificate

pursuant to Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)). 

On April 30, 2001, the trial court denied defendant's motion to

reconsider sentence.  This appeal followed.

	Our supreme court, without exception, requires strict

compliance with Rule 604(d).  People v. Foster, 171 Ill. 2d 469,   474, 665 N.E.2d 823, 826 (1996).  The rule requires more than the

mere pro forma filing of a motion to reduce sentence.  People v. Keele, 210 Ill. App. 3d 898, 902, 569 N.E.2d 301, 303 (1991).

	Rule 604(d) requires, in pertinent part, that before an appeal may be taken from a judgment entered upon a plea of

guilty, a defendant must file a motion to reconsider sentence

within 30 days of the date on which the sentence is imposed if

only the sentence is being challenged on appeal.  The motion is

required to be in writing and must state all the grounds upon

which it is brought.  A transcript of the hearing at which the guilty plea was entered is required to be prepared and furnished

to the defendant at no cost if he is indigent.  Defendant's

attorney must also file with the trial court a certificate

stating the attorney has consulted with the defendant either by

mail or in person to ascertain the defendant's contentions of

error in the sentence, 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.  Finally, upon appeal, any

issue not raised by the defendant in the motion to reconsider

sentence shall be deemed waived, i.e., forfeited.  188 Ill. 2d R. 604(d). 

	We find defense counsel did not comply with Rule

604(d).  Defense counsel filed a certificate pursuant to Rule

604(d) stating he consulted with defendant in person to ascertain

his contentions of error in the sentence, examined the trial

court file and report of proceedings of the plea of guilty, and

made any amendments necessary for adequate presentation of any

defects in those proceedings.  The certificate was dated April

26, 2001, and filed with the trial court on April 27, 2001.  A

review of the record, however, indicates the transcript of the

proceedings on the plea of guilty was both prepared and filed

with the trial court on May 24, 2001, making it impossible for

defense counsel to have reviewed the report of proceedings prior

to filing his Rule 604(d) certificate.  

	In addition, the motion to reconsider sentence filed by

defense counsel did not state any reasons to support his request

for reduction of sentence.  According to Rule 604(d), any issues not stated in the motion have been waived for purposes of appeal. 

Thus, while defense counsel stated he was filing the motion in

order to preserve defendant's appeal rights, he left defendant

with no issues upon which to appeal.  The mere act of filing a

motion to reconsider sentence, a condition precedent to filing an

appeal (see People v. Jackson, 239 Ill. App. 3d 165, 168, 606 N.E.2d 809, 811 (1992)), without including any grounds in support

of the motion, cannot be considered strict compliance with Rule

604(d) because defendant is left with no appealable issues.   

	Therefore, in this case, counsel's motion was not in 

strict compliance with Rule 604(d) and defendant received only

pro forma representation on his motion to reconsider sentence, thus requiring reversal and remand in order to obtain proper

compliance with Rule 604(d) and the representation necessary to

preserve issues for appeal.

	We note in this case, not only was the transcript of

the guilty plea proceeding not transcribed or filed with the

trial court until long after the hearing on the motion to recon

sider sentence, but the transcript of the sentencing proceeding

was not filed until after that hearing either.  Therefore,

defense counsel could not have reviewed it prior to the hearing

on the motion to reconsider sentence.  As we have previously

stated in People v. Munetsi, 283 Ill. App. 3d 326, 669 N.E.2d 1258 (1996), overruled by People v. Fitzgibbon, 184 Ill. 2d 320, 325-26, 704 N.E.2d 366, 369 (1998), such an omission hinders a

"trial court's ability to rule on a motion to reconsider sentence

because the trial court will be lacking defense counsel's

scrutinization of defendant's sentencing hearing for errors" (Munetsi, 283 Ill. App. 3d at 336, 669 N.E.2d at 1265) and directly conflicts with the clear and express policy behind Rule 604(d), which is "to ensure errors in a defendant's trial court

proceedings are 'easily and readily corrected, if called to the

attention of the trial court,' so as to 'eliminate needless trips

to the appellate court.'" Munetsi, 283 Ill. App. 3d at 336, 669 N.E.2d at 1265, quoting People v. Wilk, 124 Ill. 2d 93, 106, 529 N.E.2d 218, 223 (1988).  Although Rule 604(d) does not explicitly

require defense counsel to certify transcripts of a defendant's

sentencing hearing have been reviewed, Rule 605(c)(5) requires an

indigent defendant be provided with a transcript of his sentenc

ing hearing and also that counsel be appointed to assist the

defendant with the preparation of motions (188 Ill. 2d R.

605(c)(5)).  We held in Munetsi, that Rule 604(d) should be interpreted to require such certification when a defendant has

filed only a motion to reconsider sentence and has not filed a

motion to withdraw guilty plea.  Munetsi, 283 Ill. App. 3d at 334-35, 669 N.E.2d at 1264.    

	Our supreme court, although stating it was not unmind

ful of the concerns raised in Munetsi, declined to add this additional certification requirement to Rule 604(d).  People v. Fitzgibbon, 184 Ill. 2d at 325-26, 704 N.E.2d at 369.  The court found it was not a "legal necessity" to require defense counsel

to certify review of a transcribed copy of a defendant's sentenc

ing hearing when filing a motion to reconsider sentence in

addition to the requirement of Rule 604(d) that defense counsel

certify review of a transcribed copy of a defendant's guilty plea

hearing because of the fundamental differences between the plea proceeding and the sentencing hearing.  Fitzgibbon, 184 Ill. 2d at 326, 704 N.E.2d at 369.  The court stated the plea proceeding

results in a conviction and is the point at which a defendant

foregoes his or her right to trial and the certification require

ment of Rule 604(d), with respect to review of a transcript of

the plea proceeding, serves as a review of the trial court's

compliance with Rule 402 regarding admonishment of a defendant in

open court regarding the consequences of a plea of guilty. 

Fitzgibbon, 184 Ill. 2d at 327, 704 N.E.2d at 369-70.  The court found, although a sentencing hearing deserves careful scrutiny,

the fundamental constitutional concerns regarding a plea proceed

ing are not present in a sentencing hearing.  Fitzgibbon, 184 Ill. 2d at 327, 704 N.E.2d at 370.

	However, the Illinois Constitution grants a defendant

the right to appeal after a conviction.  Ill. Const. 1970, art.

VI, §6.  Without reading the transcript of the sentencing hear

ing, a defense counsel may not be able to properly preserve

issues for appeal.  As noted earlier, Rule 604(d) provides any

issue not raised in the motion to reconsider sentence shall be

deemed forfeited.  If issues are forfeited because defense

counsel is not required to review the transcript of the sentenc

ing hearing, a defendant's constitutional right to appeal is

worthless.  Thus, the requirement that defense counsel certify

review of the transcript of the sentencing hearing would help to

preserve a defendant's constitutional rights to appeal after a

conviction.  Therefore, upon remand, as part of defense counsel's

strict compliance with Rule 604(d), we conclude it is necessary

to review the transcript for the sentencing hearing to preserve all of the available issues and guarantee defendant's full

constitutional rights to appeal.

	Finally, defendant also contends he is entitled to an

additional day of credit for time served in custody prior to

sentencing.  Pursuant to the presentence report, the trial court

gave defendant credit for 218 days.  He was in custody from

August 31, 2000, to the date of his sentencing, April 6, 2001. 

This is actually 219 days.  The State does not contest this

contention and, on remand, the trial court should amend the

sentencing order to award defendant one additional day of credit

for time served. 

	We reverse and remand to the trial court to require

defense counsel to review transcripts of defendant's sentencing

hearing, amend his motion to reconsider sentence to provide

reasons for a reduction in sentence and to have a meaningful hearing on the motion.  In addition, the written judgment of

sentence should be amended to reflect an additional day of

sentence credit (219 days' credit).

	Reversed and remanded with directions.

	COOK, J., concurs.

	TURNER, J., partially specially concurs inpart part and partially dissents in

paret.

  	J	JUSTICE TURNER, specially concurring in part and dissenting in part:

		I concur in the majority opinion reversing and remanding

for compliance with Rule 604(d).  I dissent in the portion of the

majority opinion directing the trial judge to require defense

counsel to review a transcript of the sentencing hearing.  Although

I find merit in the majority's position, its opinion appears to

sidestep our supreme court's decision in Fitzgibbon, 184 Ill. 2d at 326-27, 704 N.E.2d at 369.  Accordingly, I respectfully and

partially dissent.