Filed 8/24/10 NO. 4-10-0124

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

 v.

DESMOND TURNER, 

Defendant-Appellant.

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Appeal from

Circuit Court of

Champaign County

No. 09CF1654

 

Honorable

Thomas J. Difanis,

Judge Presiding.

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JUSTICE KNECHT delivered the opinion of the court:

This appeal comes to us on the motion of defendant's

counsel, the office of the State Appellate Defender (OSAD), for

remand for strict compliance with Supreme Court Rule 604(d) (210

Ill. 2d R. 604(d)).

I. BACKGROUND

In September 2009, the State charged defendant, Desmond

Turner, with three counts of aggravated battery committed

September 22, 2009, against a teacher’s assistant (count I), the

school principal (count II), and a teacher at his school (count

III), all Class 3 felonies, based on an incident on the school

grounds wherein the three school employees attempted to break up

an altercation between defendant and another student. 

On November 29, 2009, defendant was admonished and

entered an open plea of guilty to count II (720 ILCS 5/12-4(b)(3)

(West 2008)), involving the school principal, and the State

agreed to dismiss the remaining two counts. The factual basis
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for the plea was as follows:

"Judge, in this case if called to

testify witnesses would include the named

victim, Mr. McFarling, as well as other

school employees. They would testify that on

September 22, 2009, shortly before 2:00

o’clock in the afternoon they were present at

Pathways School located at 200 South

Frederick in Rantoul. At that time this

defendant and a minor student got into an

argument during PE class. The victims

attempted to separate the parties. At one

point they had the parties separated but the

Defendant pushed through a set of doors to

continue the fight with the other student. 

All three victims then got between the

Defendant and the other student, tried to

keep them apart. The defendant pushed and

shoved all three victims until they got him

wrestled to the ground. They held him there

until police arrived."

The court accepted defendant's plea and entered judgment on count

II.

On January 29 2010, the trial court sentenced

defendant, having turned 18 on January 8, 2010, after summarizing
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the background of defendant in cases from Peoria County:

"The Defendant, starting with [No.] 03-

JD-296, in Peoria County, in 03-JD-404, two

separate aggravated[-]battery petitions, was

ordered to serve a sentence of probation,

complete mental[-]health and anger[-]

management counseling and attend school. 

Petitions to revoke were filed alleging new

offense of aggravated battery. He admitted

to the allegations, and again, [15] months of

probation, mental[-]health counseling. Then

in [No.] 05-JD-376, another aggravated[-]

battery petition was filed. Same sentence of

probation. Same order for anger management. 

Criminal damage in [No.] 05-JD-408. Was

adjudicated on the same date, with the same

directions.

Then in [No.] 08-JD-82, again,

aggravated battery, school employee. Attend

school, complete anger[-]management

counseling, get substance[-]abuse evaluation. 

And now, we have this offense, involving more

school employees.

The Defendant has been given numerous

opportunities to hopefully deal with his
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anger issues. ***

The bottom line is, the Court has to

make a determination as to whether or not the

Defendant needs to be incarcerated because

he’s dangerous. He is literally a walking

time bomb and nothing that has been tried

through the Juvenile Court Act has deterred

him at all."

The court sentenced defendant to a 5-year prison term with credit

for 64 days as time served and dismissed the remaining counts.

On February 1, 2010, defense counsel filed a motion to

reconsider sentence. The record on appeal contains an undated,

un-file-stamped Rule 604(d) certificate immediately preceding the

motion to reconsider, stating as follows:

"I, George Vargas, Senior Assistant

Public Defender, appointed counsel for

defendant, pursuant to Supreme Court Rule

604(d), hereby certify that I have consulted

with the defendant in person to ascertain

defendant’s contentions of error in the

sentence; have examined the court file and

the report of proceedings."

At hearing on February 9, 2010, the trial judge stated:

"The Appellate Court literally requires

that the I’s be dotted, the T’s crossed, and
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the 604(d) certificate, the Rule says you

have examined the trial court file and report

of proceedings with the guilty plea. You’ve

got that. And you’ve made any amendments to

the motion necessary for adequate

presentation of any defects in those motions. 

This motion was filed by you, and it wasn’t a

pro se motion by the defendant; is that

correct?

[DEFENSE COUNSEL]: Correct, Judge.

THE COURT: I’m going to take a chance

and assume that this will pass muster then by

the Appellate Court."

The docket entries do not show when defense counsel presented the

certificate, although it is mentioned in the court’s February 9

hearing entry. Defendant appealed, and the court appointed OSAD

to represent defendant on appeal the same day. 

II. ANALYSIS

OSAD has filed a motion for remand, contending

defendant’s counsel failed to file a certificate strictly

complying with Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)).

The transcript of the guilty-plea hearing shows it was prepared

and dated by the court reporter on February 8, 2010, while the

motion to reconsider was filed February 1, 2010, and the hearing

on the motion was held February 9. Rule 604(d) provides as
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follows: 

"(d) Appeal by Defendant From a Judgment

Entered Upon a Plea of Guilty. *** The

defendant's attorney shall file with the

trial court a certificate stating that the

attorney [(1)] has consulted with the

defendant either by mail or in person to

ascertain defendant's contentions of error in

[(a)] the sentence or [(b)] the entry of the

plea of guilty[,] [(2)] has examined the

[(a)] trial court file and [(b)] report of

proceedings of the plea of guilty[,] and

[(3)] has made any amendments to the motion

necessary for adequate presentation of any

defects in those proceedings. *** Upon

appeal any issue not raised by the defendant

in a motion to reconsider the sentence or

withdraw the plea of guilty and vacate the

judgment shall be deemed waived." 210 Ill.

2d R. 604(d).

OSAD quotes People v. Hopkins, 256 Ill. App. 3d 203, 205, 629

N.E.2d 780, 782 (1994), wherein this court rejected "any

suggestion that examination of the report of proceedings from the

plea of guilty is useless or irrelevant to matters which occur at

sentencing." OSAD states because counsel filed the motion before
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reviewing the report of proceedings of the plea of guilty,

counsel was required to certify he made any amendments to the

motion necessary for adequate presentation of any defects in the

proceedings, as "[w]ithout counsel’s certification there is no

assurance that any errors which occurred during the guilty[-]plea

proceedings were incorporated into [defendant’s] motion to

reconsider sentence. See People v. Prather, 379 Ill. App. 3d

763, 768, 887 N.E.2d 44, 47 ([4th Dist.] 2008) (noting the [Rule]

604(d) compliance cannot be presumed)." OSAD further asserts: 

"By omitting this affirmation, counsel’s

certificate also fails to strictly comply

with the requirements of Supreme Court Rule

604(d). People v. Dismuke, 355 Ill. App. 3d

606, 609, 823 N.E.2d 1131, 1134 ([2d Dist.]

2005) ([']Rule 604(d) sets forth the duties

of a defense counsel and provides a simple,

straightforward, and mandatory procedure

designed to insure that those duties are

performed[']); People v. Cloyd, 397 Ill. App.

3d 1084, [1089, ___ N.E.2d ___, ___] ([4th

Dist.] 2010) (finding attorney’s certificate

insufficient for failing to certify that he

had reviewed the report of proceedings of the

plea of guilty even though counsel was

present for the hearing)."
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OSAD claims defendant is entitled to remand for the

filing of a new postplea motion under the controlling precedent

of People v. Janes, 158 Ill. 2d 27, 33, 630 N.E.2d 790, 792

(1994). See also Prather, 379 Ill. App. 3d at 769, 887 N.E.2d at

47-48. The State concedes error, quoting the certificate

requirements this court stated in People v. Grice, 371 Ill. App.

3d 813, 817, 867 N.E.2d 1143, 1146-47 (2007), and we agree. 

The record suggests defense counsel had not read the

report of proceedings when he filed the the motion to reconsider 

on February 1, as the court reporter did not certify it until

February 8. The record does not show precisely when defense

counsel prepared the purported Rule 604(d) certificate. We again

emphasize the following: (1) supreme court rules are meant to be

followed, as written, and are not mere suggestions or guidelines

from which deviations may be made; (2) postplea motions have real

consequences for each guilty-plea defendant as the rule expressly

provides any issue not included in the postplea motion is

forfeited; and (3) the rule requirements are there to ensure the

best chance defense counsel will note and include any issue in

reviewing the transcripts of the hearings, so as not to rely on

memory alone or lesser records. In Grice, this court stated it

will not examine the record to determine whether defense

counsel’s conduct satisfied the rule’s requirements but will look

to the certificate itself. Grice, 371 Ill. App. 3d at 816, 867

N.E.2d at 1146. We hold because the record shows counsel filed
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his motion before reviewing the report of proceedings of the plea

of guilty, counsel was required to certify he made any amendments

to the motion necessary for adequate presentation of any defects

in the proceedings.

III. CONCLUSION

Accordingly, we grant OSAD's motion and remand the

cause for the appointment of counsel, the filing of a new motion

to reconsider sentence, a new hearing on the motion, and strict

compliance with Rule 604(d) in the filing of any future

certificates under the rule. 

Remanded with directions.

POPE and McCULLOUGH, JJ., concur.