People v. Cervantes

2020 IL App (1st) 180613-U

• Court: Appellate Court of Illinois
• Decided: November 13, 2020
• Docket: 1-18-0613
• Status: Unpublished

Opinion

2020 IL App (1st) 180613-U No. 1-18-0613 Order filed November 13, 2020 Fifth Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 13 CR 6375 ) MARCOS CERVANTES, ) Honorable ) Thomas V. Gainer Jr., Defendant-Appellee. ) Judge, presiding.

JUSTICE ROCHFORD delivered the judgment of the court. Presiding Justice Delort and Justice Hoffman concurred in the judgment.

ORDER

¶1 Held: We affirm the trial court’s denial of defendant’s motion to withdraw his guilty plea over his contention that postplea counsel failed to strictly comply with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017).

¶2 Defendant Marcos Cervantes appeals from the trial court’s denial of his motion to withdraw

his guilty plea. On appeal, he contends that the case should be remanded for compliance with

Illinois Supreme Court Rule 604(d) (eff. July 1, 2017), when although postplea counsel filed a No. 1-18-0613

“facially valid” Rule 604(d) certificate, the record shows that she did not consider all of the bases

for defendant’s motion. We affirm.

¶3 Following his February 23, 2013 arrest, defendant was charged with armed robbery, home

invasion, aggravated vehicular hijacking, aggravated kidnaping, aggravated criminal sexual

assault, and aggravated criminal sexual abuse. Defendant was 16 years old at the time of his arrest.

¶4 Defendant’s answer to discovery stated that the defense would rely on the State’s inability

to prove his guilt beyond a reasonable doubt and the defense of consent. Defendant then filed a

motion to suppress statements, which was denied after a hearing. Defendant also filed a motion

seeking a transfer to juvenile court, which was denied.

¶5 At a proceeding on July 13, 2017, defendant told the court that he and plea counsel no

longer saw “eye to eye” and he no longer felt “comfortable” with her as his attorney. He further

stated that he had “been here five years” and counsel was not making progress on the case. The

trial court told defendant to write out his problems and bring the paper to the next court date.

¶6 On July 21, 2017, plea counsel told the court that “after extensive discussions” the parties

were close to an agreement, but defendant wanted to speak to his mother before entering a plea.

¶7 On August 2, 2017, defendant entered a plea of guilty to aggravated criminal sexual assault

(720 ILCS 5/11-1.30(a)(4) (West 2012)) and was sentenced to 23 years in prison.

¶8 As the factual basis for the plea, the State explained that on February 24, 2013, defendant

entered the backyard of D.P.’s home in Chicago and forced his way into the home by threatening

her with a firearm. D.P. did not know defendant, who then forced D.P. to perform oral sex,

vaginally penetrated D.P., and ejaculated on her stomach. Defendant wiped himself and D.P. with

her sweater, took items from her home including her cellular phone, forced D.P. into her vehicle,

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and then drove away with her inside. Defendant ultimately released D.P. but kept the vehicle.

When police found defendant in D.P.’s vehicle, the cellular phone and sweater were inside. Tests

upon the sweater revealed that semen found on the sweater matched defendant’s DNA. Plea

counsel stipulated to the factual basis.

¶9 The trial court accepted the factual basis and entered a guilty finding. The State presented

D.P.’s victim impact statement which stated she lived “in hell for the past four years waiting for

justice,” suffered from Post-Traumatic Stress Disorder, and believed defendant was a “wild

animal” who should “be locked up in a cage.” The trial court then sentenced defendant and

admonished him of his appeal rights.

¶ 10 Defendant asked whether he had to file a motion to withdraw his guilty plea at a “specific

time” or “just like *** whenever,” and the court stated that he had 30 days. Defendant then asked

whether he could appeal to determine whether “this juvenile thing” was retroactive. The trial court

reiterated that before defendant could appeal, he had to file a motion to withdraw the guilty plea.

Defendant replied that the court would not grant a motion. The trial court asked whether defendant

understood his appeal rights. Defendant stated that “within 30 days from now” he had to write a

motion explaining “why I feel like I feel,” and asked for an example and where to mail the motion.

The court told defendant to write that he wanted to withdraw his guilty plea and why he thought

he was entitled to do so, to mail the motion to the courthouse, and that he would be appointed an

attorney. Defendant then stated:

“This does *** give me time to, you know, [converse] more with my mother, you know

what I am saying? Then I get to see what the joint life is. You know what I mean? If I ain’t

feeling it, then you might be getting a letter from me. Hey, yo, ***, man, send me back.”

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¶ 11 Plea counsel reminded defendant that if his plea were withdrawn, all the other charges

would be reinstated. Defendant asked the court whether plea counsel would be appointed if he

sought to withdraw his plea, as she was “an excellent lawyer” and he “might need her back.” When

the court and plea counsel said they did not know, defendant stated, “She going to dodge that as

soon as she hear I put a motion. She’s going to be like hell, [no].”

¶ 12 On August 31, 2017, defendant filed a pro se letter seeking to withdraw his plea because

he was drunk on “moonshine” and high on prescription drugs that were not prescribed to him at

the time of the plea. The letter also alleged that plea counsel did not have his “best interest in mind”

because she failed to subpoena D.P.’s phone records when he asked her to do so and told him

“many times” that “ ‘we do not have a defense.’ ” On September 7, 2017, defendant filed a pro se

motion for extension of time because he was recently transferred to another prison and could not

visit the law library. He signed and attached a form titled “petition to withdraw guilty plea and

vacate sentence,” which did not list any reasons for withdrawing his plea.

¶ 13 The trial court appointed new counsel (postplea counsel) for defendant. On March 1, 2018,

postplea counsel filed a certificate pursuant to Rule 604(d) stating that she consulted with

defendant in person and by mail to ascertain his contentions of error in the entry of his plea and

sentence, reviewed the trial court file and report of proceedings from the guilty plea and sentencing

hearings, and found no amendments to the pro se motion were necessary for an adequate

presentation of any defects in the proceedings.

¶ 14 Also on March 1, 2018, the trial court held a hearing on defendant’s letter, which the court

noted postplea counsel described as a motion. First, the court swore defendant to the facts of the

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letter. Postplea counsel told the court that the defense stood on defendant’s pro se allegations. The

State then presented plea counsel.

¶ 15 Plea counsel testified that she represented defendant between October 2013 and August

2017. She did not subpoena D.P.’s phone records because she had “no reason to believe” anything

helpful to the defense would have been obtained and that decision was trial strategy. Plea counsel

did not tell defendant that “ ‘We have no defense.’ ” However, she advised him that, in her opinion

and the opinion of other attorneys who reviewed the case, they had a “weak defense” in that there

were no witnesses or other evidence to present in defense. Plea counsel and defendant’s prior

attorney investigated possible witnesses, defenses, and other information that could assist the

defense. Prior to the entry of defendant’s guilty plea, a conference was held pursuant to Illinois

Supreme Court Rule 402 (eff. July 1, 2012), and plea counsel spoke to defendant “numerous times”

about the guilty plea process both at the courthouse and the jail. On the day of the plea, she spoke

to defendant about the plea for approximately 45 minutes in a small private conference room. She

observed no indications that defendant was under the influence of alcohol or drugs at that time.

Defendant did not raise any of the issues mentioned in his letter, which she reviewed. The trial

court denied defendant’s motion for leave to withdraw the guilty plea.

¶ 16 On appeal, defendant contends that although postplea counsel filed a facially valid Rule

604(d) certificate, the record shows that counsel did not, in fact, consider all the bases for the

motion to withdraw the plea because she failed to review D.P.’s phone records. He argues that the

cause should be remanded for strict compliance with the rule.

¶ 17 Whether counsel’s certificate complied with the requirements of Rule 604(d) presents a

question of law that we review de novo. People v. Easton, 2018 IL 122187, ¶ 25. Rule 604(d) lists

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the procedures to be followed when, after pleading guilty, a defendant files either a motion to

reconsider the sentence or a motion to withdraw the plea. People v. Grice, 371 Ill. App. 3d 813,

815 (2007). In relevant part, the rule provides:

“The defendant’s attorney shall file with the trial court a certificate stating that the

attorney has consulted with the defendant either by phone, mail, electronic means or in

person to ascertain defendant’s contentions of error in the sentence and the entry of the

plea of guilty, has examined the trial court file and both the report of proceedings of the

plea of guilty and the report of proceedings in the sentencing hearing, and has made any

amendments to the motion necessary for adequate presentation of any defects in those

proceedings.” Ill. S. Ct. R. 604(d) (eff. July 1, 2017).

¶ 18 Our supreme court has held that “the certificate filed by counsel must strictly comply with

the requirements of Rule 604(d).” Easton, 2018 IL 122187, ¶ 26. The court further stated that “[i]f

the certificate fails to meet this standard, a reviewing court must remand the case to the trial court

for proceedings that strictly comply with Rule 604(d).” Id.

¶ 19 The certificate requirement in Rule 604(d) ensures that counsel has reviewed the

defendant’s claims and considered all of the relevant bases for a motion to withdraw the guilty

plea or reconsider the sentence. People v. Tousignant, 2014 IL 115329, ¶ 16. “The certificate itself

is all this court will consider to determine compliance with Rule 604(d). People v. Neal, 403 Ill.

App. 3d 757, 760 (2010). That being said, “we may consider the record where it undermines the

certificate filed.” Id.; see also People v. Herrera, 2012 IL App (2d) 110009, ¶ 13 (“Unless the

record undermines the certificate, *** the only thing we consider in determining compliance with

Rule 604(d) is the certificate itself.”).

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¶ 20 In the case at bar, the parties correctly agree that postplea counsel’s Rule 604(d) certificate

was facially valid. Here, counsel’s Rule 604(d) certificate states that she consulted with defendant

in person and by mail to ascertain his contentions of error in the entry of his plea and sentence,

reviewed the trial court file and report of proceedings from the guilty plea and sentencing hearings,

and found no amendments to the pro se motion were necessary for an adequate presentation of any

defects in the proceedings. As such, the certificate was facially valid. See Ill. S. Ct. R. 604(d) (eff.

July 1, 2017); Easton, 2018 IL 122187, ¶ 26.

¶ 21 Defendant contends, however, that the record “casts considerable doubt” upon postplea

counsel’s compliance with the rule despite the filing of a facially valid certificate. He argues that

postplea counsel’s failure to obtain and review D.P.’s phone records means that she could not have

reviewed all relevant bases for his motion to withdraw the guilty plea. He further argues that

postplea counsel failed to provide any supporting evidence or argument in support of his claim at

the hearing on the motion. We disagree.

¶ 22 Here, the record reveals that the parties stipulated that D.P. did not know defendant on the

date of the offense, and although defendant’s pro se letter stated that plea counsel did not subpoena

D.P.’s phone records when he told counsel to do so, defendant did not explain the importance of

the phone records or include any facts in support of this issue. The record also rebuts defendant’s

claim, as plea counsel testified defendant never mentioned any of the issues raised in his pro se

letter; that is, he never asked her to subpoena D.P.’s phone records and she saw no tactical

importance in those records. Most importantly, however, postplea counsel consulted with

defendant in person and by mail to ascertain his claims, and after such consultation, did not either

obtain the phone records or amend his pro se letter. Under these circumstances, defendant cannot

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show that postplea counsel’s decision to not obtain D.P.’s phone records, standing alone,

undermines the validity of postplea counsel’s Rule 604(d) certificate.

¶ 23 We are unpersuaded by defendant’s reliance on People v. Love, 385 Ill. App. 3d 736 (2008).

In that case, defense counsel filed a Rule 604(d) certificate that complied with the requirements of

the rule. However, the following day, counsel stated, in pertinent part, “ ‘I have prepared a motion

to file today; however, I think I need to review the transcript of the plea itself in order to proceed.’ ”

(Emphasis in original.) Id. at 737. The State then asked whether counsel would be ready to proceed

the following week and noted that the report of proceedings from the guilty plea hearing was

readily available. Id. The record also revealed that the State offered courtesy copies to the trial

court and counsel. Id. The circuit court ultimately denied the defendant’s motion to withdraw the

guilty plea.

¶ 24 On appeal, the court concluded, after reviewing the record, that counsel’s statement left the

distinct impression that she had not examined the transcript from the defendant’s guilty plea

hearing. Id. Although this court acknowledged there was no “conclusive proof” that counsel had

filed her Rule 604(d) certificate without first examining the report of proceedings from the hearing,

counsel’s remark was enough to “shake” the court’s confidence as to her “compliance with the

substantive requirements of the rule.” Id. at 738. The court further noted that the purpose of the

certification requirement was to show actual compliance with the rule, rather than merely the

“intent to comply.” Id. The court therefore found that “a Rule 604(d) certificate filed before

counsel has actually complied with the substantive requirements of Rule 604(d) is ineffective,”

and “[w]here, as here, the record impeaches the Rule 604(d) certificate, a remand for further

proceedings is necessary.” Id. at 739.

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¶ 25 In the case at bar, unlike Love, the record does not impeach postplea counsel’s certification

that she fulfilled her duties under Rule 604(d). Under the circumstances, we cannot agree with

defendant’s conclusion that postplea counsel’s decision not to obtain D.P.’s phone records, made

following her consultation with him and her review of the trial court file and report of proceedings

from the guilty plea and sentencing hearings, demonstrated noncompliance with Rule 604(d).

¶ 26 For the reasons listed above, we affirm the judgment of the circuit court of Cook County.

¶ 27 Affirmed.

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