2015 IL App (2d) 140173 No. 2-14-0173 Opinion filed January 9, 2015 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) Nos. 10-CF-905 ) 10-CF-1425 ) ORVILLE AXELSON, ) Honorable ) Rosemary Collins, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Birkett and Spence concurred in the judgment and the opinion.
OPINION
¶1 Defendant, Orville Axelson, pleaded guilty to one count each of burglary (720 ILCS
5/19-1(a) (West 2010)) and unlawful possession of a stolen motor vehicle (625 ILCS 5/4-
103(a)(1) (West 2010)) and was sentenced to concurrent 10-year prison terms. The trial court
denied his postjudgment motion, and he appeals. On appeal, defendant argues that, because his
attorney failed to file a proper certificate of compliance with Illinois Supreme Court Rule 604(d)
(eff. July 1, 2006), the order denying his motion must be vacated and the cause must be
remanded. 2015 IL App (2d) 140173
¶2 The State confesses error and agrees that the cause must be remanded. The parties
disagree, however, on the proper procedure on remand. Defendant contends that, because he
entered a nonnegotiated plea, Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001) applies. The
State contends that defendant’s plea was negotiated, so that Illinois Supreme Court Rule 605(c)
(eff. Oct. 1, 2001) applies. We agree with the State and remand the cause with directions.
¶3 In case No. 10-CF-905, defendant was charged with two counts of burglary and one
count of possession of burglary tools (720 ILCS 5/19-2(a) (West 2010)). In case No. 10-CF-
1425, he was charged with one count of unlawful possession of a stolen motor vehicle. The
cases were consolidated.
¶4 On April 17, 2012, the parties presented an agreement under which defendant would
plead guilty to one count of burglary and the count of unlawful possession of a stolen motor
vehicle, and the other charges would be dismissed. In questioning defendant, the judge asked,
“Is there any agreement about what the sentencing would be?” Defendant said, “No.” The judge
then stated, “That’s correct, too. What we call an open plea.” After further admonishments, the
judge stated, “[B]ecause this is what’s called an open plea that means that there is no agreement
about what the sentence will be.”
¶5 The judge then stated, “And it’s my understanding that the sentences will be concurrent.”
Defendant’s attorney, Wendell Coates, responded, “That’s correct.” The judge explained to
defendant what “concurrent” meant but did not specifically inform him that the law allowed
consecutive sentencing in his case. After further admonishments and the presentation of the
factual basis, the court accepted the plea. On June 13, 2012, defendant was sentenced to
concurrent 10-year prison terms.
-2- 2015 IL App (2d) 140173
¶6 Coates later withdrew from the case. On January 13, 2014, defendant’s new counsel,
Michael Phillips, filed an amended motion to withdraw his guilty plea and, alternatively, to
reduce his sentences. It alleged defects in the guilty-plea hearing and in the sentencing process.
¶7 On January 13, 2014, at a status hearing without defendant present, Phillips stated that
the motion was “defendant’s motion to withdraw his guilty plea. *** And to—and/or in the
alternative to reduce sentence.” The judge noted, “Actually, Counsel, this was a cap case. So
when there’s a cap, it’s a motion to withdraw plea. At least that’s my understanding of the law.”
Phillips responded, “That’s my understanding too. If there’s an agreed sentence on the plea
agreement [sic], then you have to make a motion to withdraw.”
¶8 On February 7, 2014, Phillips submitted a certificate stating that he had consulted with
defendant “to ascertain [his] contentions of error regarding the entry of a Plea of Guilty”; that he
had examined the trial court file and the report of proceedings of the guilty-plea hearing; and that
he had made any amendments to the motion necessary to present any defects in the proceedings.
¶9 On February 11, 2014, the trial court denied defendant’s motion. He timely appealed.
¶ 10 On appeal, the parties agree that the ruling on the postjudgment motion must be vacated,
and the cause remanded, because Phillip’s certificate did not strictly comply with Rule 604(d).
See People v. Janes, 158 Ill. 2d 27, 35 (1994) (strict compliance required). Rule 604(d) requires
an attorney to certify that he has consulted with the defendant “to ascertain [the] defendant’s
contentions of error in the sentence or the entry of the plea of guilty.” Ill. S. Ct. R. 604(d) (eff.
July 1, 2006). As interpreted, this language requires counsel to certify that “he has consulted
with the defendant ‘to ascertain defendant’s contentions of error in the sentence and the entry of
the plea of guilty.’ ” (Emphasis in original.) People v. Tousignant, 2014 IL 115329, ¶ 20; see
Ill. S. Ct. R. 604(d) (eff. July 1, 2006). Here, Phillips’ certificate stated that he had consulted
-3- 2015 IL App (2d) 140173
with defendant “to ascertain [his] contentions of error regarding the entry of a Plea of Guilty” but
did not mention contentions of error regarding defendant’s sentences. Thus, it did not strictly
comply with Rule 604(d).
¶ 11 The parties agree that the order denying defendant’s motion must be vacated, and the
cause remanded, so that defendant may (1) file a new postjudgment motion if he wishes; (2) have
counsel file a complete and correct Rule 604(d) certificate; and (3) have the motion heard, all in
strict compliance with Rule 604(d). See Tousignant, 2014 IL 115329, ¶¶ 5, 23. We agree.
¶ 12 The parties disagree, however, on one matter. Defendant asserts that, on remand, he must
be allowed to move either to withdraw his guilty plea, to reconsider his sentences, or both.
Accordingly, he requests that we direct the trial court first to admonish him per Rule 605(b),
which applies when “a judgment is entered on a plea of guilty, other than a negotiated plea of
guilty.” Ill. S. Ct. R. 605(b) (eff. Oct. 1, 2001). Rule 605(c), by contrast, applies when a
judgment is entered on a negotiated plea of guilty, i.e., “one in which the prosecution has bound
itself to recommend a specific sentence, or a specific range of sentence, or where the prosecution
has made concessions relating to the sentence to be imposed and not merely to the charge or
charges then pending.” Ill. S. Ct. R. 605(c) (eff. Oct. 1, 2001). Defendant notes that, at the
guilty-plea hearing, he stated that there was no agreement on his sentences, and the trial judge
stated that he was entering an “open” plea. Defendant concludes that, because his plea was not
negotiated, the proceedings on remand must follow Rule 605(b).
¶ 13 The State responds that the proceedings on remand must follow Rule 605(c), under which
defendant may move only to withdraw his guilty plea and vacate the judgment. The State
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2015 IL App (2d) 140173 No. 2-14-0173 Opinion filed January 9, 2015 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) Nos. 10-CF-905 ) 10-CF-1425 ) ORVILLE AXELSON, ) Honorable ) Rosemary Collins, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Birkett and Spence concurred in the judgment and the opinion.
OPINION
¶1 Defendant, Orville Axelson, pleaded guilty to one count each of burglary (720 ILCS
5/19-1(a) (West 2010)) and unlawful possession of a stolen motor vehicle (625 ILCS 5/4-
103(a)(1) (West 2010)) and was sentenced to concurrent 10-year prison terms. The trial court
denied his postjudgment motion, and he appeals. On appeal, defendant argues that, because his
attorney failed to file a proper certificate of compliance with Illinois Supreme Court Rule 604(d)
(eff. July 1, 2006), the order denying his motion must be vacated and the cause must be
remanded. 2015 IL App (2d) 140173
¶2 The State confesses error and agrees that the cause must be remanded. The parties
disagree, however, on the proper procedure on remand. Defendant contends that, because he
entered a nonnegotiated plea, Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001) applies. The
State contends that defendant’s plea was negotiated, so that Illinois Supreme Court Rule 605(c)
(eff. Oct. 1, 2001) applies. We agree with the State and remand the cause with directions.
¶3 In case No. 10-CF-905, defendant was charged with two counts of burglary and one
count of possession of burglary tools (720 ILCS 5/19-2(a) (West 2010)). In case No. 10-CF-
1425, he was charged with one count of unlawful possession of a stolen motor vehicle. The
cases were consolidated.
¶4 On April 17, 2012, the parties presented an agreement under which defendant would
plead guilty to one count of burglary and the count of unlawful possession of a stolen motor
vehicle, and the other charges would be dismissed. In questioning defendant, the judge asked,
“Is there any agreement about what the sentencing would be?” Defendant said, “No.” The judge
then stated, “That’s correct, too. What we call an open plea.” After further admonishments, the
judge stated, “[B]ecause this is what’s called an open plea that means that there is no agreement
about what the sentence will be.”
¶5 The judge then stated, “And it’s my understanding that the sentences will be concurrent.”
Defendant’s attorney, Wendell Coates, responded, “That’s correct.” The judge explained to
defendant what “concurrent” meant but did not specifically inform him that the law allowed
consecutive sentencing in his case. After further admonishments and the presentation of the
factual basis, the court accepted the plea. On June 13, 2012, defendant was sentenced to
concurrent 10-year prison terms.
-2- 2015 IL App (2d) 140173
¶6 Coates later withdrew from the case. On January 13, 2014, defendant’s new counsel,
Michael Phillips, filed an amended motion to withdraw his guilty plea and, alternatively, to
reduce his sentences. It alleged defects in the guilty-plea hearing and in the sentencing process.
¶7 On January 13, 2014, at a status hearing without defendant present, Phillips stated that
the motion was “defendant’s motion to withdraw his guilty plea. *** And to—and/or in the
alternative to reduce sentence.” The judge noted, “Actually, Counsel, this was a cap case. So
when there’s a cap, it’s a motion to withdraw plea. At least that’s my understanding of the law.”
Phillips responded, “That’s my understanding too. If there’s an agreed sentence on the plea
agreement [sic], then you have to make a motion to withdraw.”
¶8 On February 7, 2014, Phillips submitted a certificate stating that he had consulted with
defendant “to ascertain [his] contentions of error regarding the entry of a Plea of Guilty”; that he
had examined the trial court file and the report of proceedings of the guilty-plea hearing; and that
he had made any amendments to the motion necessary to present any defects in the proceedings.
¶9 On February 11, 2014, the trial court denied defendant’s motion. He timely appealed.
¶ 10 On appeal, the parties agree that the ruling on the postjudgment motion must be vacated,
and the cause remanded, because Phillip’s certificate did not strictly comply with Rule 604(d).
See People v. Janes, 158 Ill. 2d 27, 35 (1994) (strict compliance required). Rule 604(d) requires
an attorney to certify that he has consulted with the defendant “to ascertain [the] defendant’s
contentions of error in the sentence or the entry of the plea of guilty.” Ill. S. Ct. R. 604(d) (eff.
July 1, 2006). As interpreted, this language requires counsel to certify that “he has consulted
with the defendant ‘to ascertain defendant’s contentions of error in the sentence and the entry of
the plea of guilty.’ ” (Emphasis in original.) People v. Tousignant, 2014 IL 115329, ¶ 20; see
Ill. S. Ct. R. 604(d) (eff. July 1, 2006). Here, Phillips’ certificate stated that he had consulted
-3- 2015 IL App (2d) 140173
with defendant “to ascertain [his] contentions of error regarding the entry of a Plea of Guilty” but
did not mention contentions of error regarding defendant’s sentences. Thus, it did not strictly
comply with Rule 604(d).
¶ 11 The parties agree that the order denying defendant’s motion must be vacated, and the
cause remanded, so that defendant may (1) file a new postjudgment motion if he wishes; (2) have
counsel file a complete and correct Rule 604(d) certificate; and (3) have the motion heard, all in
strict compliance with Rule 604(d). See Tousignant, 2014 IL 115329, ¶¶ 5, 23. We agree.
¶ 12 The parties disagree, however, on one matter. Defendant asserts that, on remand, he must
be allowed to move either to withdraw his guilty plea, to reconsider his sentences, or both.
Accordingly, he requests that we direct the trial court first to admonish him per Rule 605(b),
which applies when “a judgment is entered on a plea of guilty, other than a negotiated plea of
guilty.” Ill. S. Ct. R. 605(b) (eff. Oct. 1, 2001). Rule 605(c), by contrast, applies when a
judgment is entered on a negotiated plea of guilty, i.e., “one in which the prosecution has bound
itself to recommend a specific sentence, or a specific range of sentence, or where the prosecution
has made concessions relating to the sentence to be imposed and not merely to the charge or
charges then pending.” Ill. S. Ct. R. 605(c) (eff. Oct. 1, 2001). Defendant notes that, at the
guilty-plea hearing, he stated that there was no agreement on his sentences, and the trial judge
stated that he was entering an “open” plea. Defendant concludes that, because his plea was not
negotiated, the proceedings on remand must follow Rule 605(b).
¶ 13 The State responds that the proceedings on remand must follow Rule 605(c), under which
defendant may move only to withdraw his guilty plea and vacate the judgment. The State
reasons that defendant’s plea was in reality a negotiated one, because, as part of the agreement,
-4- 2015 IL App (2d) 140173
the prosecution elected not to recommend consecutive sentences. The parties implied this at the
hearing, and, indeed, the trial judge later recognized that this was a “cap” case.
¶ 14 The resolution of this issue turns on the construction of Rule 605. We must effectuate the
intent of the rule’s drafters, the best evidence of which is the rule’s language, given its plain
meaning. Tousignant, 2014 IL 115329, ¶ 8.
¶ 15 Rule 605(c) applies when “the prosecution has made concessions relating to the sentence
to be imposed and not merely to the charge or charges then pending.” Ill. S. Ct. R. 605(c) (eff.
Oct. 1, 2001). This language is plain, and it applies here. Whatever defendant and the trial judge
said at one point, the guilty-plea hearing as a whole proves that the prosecution did make a
concession relating to the sentences to be imposed—it agreed to forgo any recommendation that
defendant receive consecutive sentences. That objective fact controls. Whether to apply Rule
605(b) or 605(c) depends on the character of the plea and the agreement, if any, underlying it,
and not on the defendant’s subjective understanding of his plea. Of course, any inconsistency
between the actual plea and the defendant’s understanding thereof might support a claim of error
to be raised later in a postjudgment motion. That is a separate matter, and we intimate no
opinion on whether any such misunderstanding might provide grounds for relief on remand.
¶ 16 For the foregoing reasons, we (1) vacate the order denying defendant’s postjudgment
motion; and (2) remand the cause for postjudgment proceedings in accordance with this opinion
and Rules 604(d) and 605(c).
¶ 17 Vacated and remanded with directions.
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