People v. Gately

2024 IL App (1st) 221461-U

• Court: Appellate Court of Illinois
• Decided: February 9, 2024
• Docket: 1-22-1461
• Status: Unpublished

Opinion

2024 IL App (1st) 221461-U No. 1-22-1461 Order filed February 9, 2024 Fifth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent 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-Appellee, ) Cook County. ) v. ) No. 18 CR 12960 ) JOHN GATELY, ) Honorable ) Anjana M.J. Hansen, Defendant-Appellant. ) Judge, presiding.

JUSTICE NAVARRO delivered the judgment of the court. Justices Mikva and Lyle concurred in the judgment.

ORDER

¶1 Held: We vacate and remand for new postplea proceedings where postplea counsel failed to strictly comply with Supreme Court Rule 604(d) (eff. July 1, 2017).

¶2 On August 19, 2022, defendant John Gately pled guilty to first degree murder (720 ILCS

5/9-1(a)(1) (West Supp. 2017)) in exchange for a sentence of 23 years’ imprisonment and the

nolle prosequi of other charges. Through counsel, defendant filed a motion to vacate his guilty

plea pursuant to Supreme Court Rule 604(d) (eff. July 1, 2017) and the court denied the motion. No. 1-22-1461

On appeal, defendant argues his counsel failed to strictly comply with Rule 604(d) by not

supporting the motion with an affidavit. For the following reasons, we agree. We therefore vacate

the court’s order denying defendant’s motion to vacate his plea and remand for new postplea

proceedings.

¶3 The State charged defendant in an 80-count indictment with first degree murder, attempted

murder, home invasion, residential burglary, aggravated discharge of a firearm, and aggravated

unlawful restraint.

¶4 On August 18, 2022, the State advised the court that it had tendered a plea offer to

defendant for 20 years’ imprisonment for murder and 6 years’ consecutive imprisonment for

attempted murder. Defense counsel noted defendant was considering the offer. Counsel further

requested the court sign an order allowing defendant to see a dentist for “an issue he’s having with

a tooth.” The court agreed and continued the case to the next day.

¶5 During proceedings on August 19, 2022, counsel indicated that defendant wished to accept

a plea offer from the State. The State explained the offer was for 23 years’ imprisonment for

murder, with the nolle prosequi of all other counts.

¶6 As to the sentencing range, the State explained that murder had a range of 20 to 60 years’

imprisonment, plus a potential firearm enhancement of 25 years to life. The plea offer was for

murder without a firearm enhancement in exchange for 23 years’ imprisonment. The court

indicated that defendant would also have to serve three years’ mandatory supervised release

(MSR). Defendant asked, “3 plus another 3?” The court asked the State to repeat the sentencing

range, and defendant asked, “What is the three years?” Defense counsel responded that it was

MSR, or what had previously been known as parole. Defendant said, “Okay. That is all I didn’t

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understand.” The State repeated that murder carried a sentencing range of 20 to 60 years’

imprisonment plus 25 years to life for a firearm enhancement and the offer was for 23 years’

imprisonment.

¶7 Defendant confirmed that he understood the possible sentencing range and wished to plead

guilty. He also confirmed that he understood he had the right to plead not guilty and have a trial

before a judge or jury, what a jury trial was, and that he was giving up his right to a jury trial. He

agreed that he had signed a written jury waiver and had discussed it with counsel. He confirmed

he understood he was giving up his right to a trial, to see and hear witnesses against him, ask them

questions, present his own witnesses, remain silent, and hold the State to its burden of proving his

guilt beyond a reasonable doubt. He denied that anyone had threatened him or promised him

anything to plead guilty or that he was under the influence of alcohol or drugs. He confirmed he

was pleading guilty of his own free will.

¶8 As a factual basis, the State provided its evidence would show that on August 13, 2018,

defendant drove to the home of his sister and brother-in-law, Joan and Stephen Shapiro. 1 He rang

the doorbell and Stephen answered. Defendant asked for Joan and Stephen said she was

unavailable. Defendant shot Stephen in the arm and chest, killing him. He entered the home and

threatened to kill Joan, who hid behind furniture. She escaped from the home when defendant’s

firearm apparently jammed. Defendant returned to his home and told a neighbor he had shot

someone. Police officers found ammunition in defendant’s home that matched the firearm

evidence recovered from Joan and Stephen’s home.

1 The name of defendant’s brother-in-law appears in the record as both Stephen and Steven Shapiro.

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¶9 Counsel stipulated that would be the testimony at trial and defendant stated, “I don’t agree

with that.” After an off-the-record discussion, defendant stated he agreed that is what the witnesses

would say at trial. The court accepted defendant’s plea, finding that he understood the nature of

the charge against him and the possible penalties, and that his plea was free and voluntary. The

court asked if there was anything defendant wished to say before being sentenced, and defendant

thanked the court for its “diligence” and said he was “sorry” the court would not be “judging the

trial” as “it would have been interesting.” The court sentenced defendant to 23 years’

¶ 10 On September 12, 2022, defendant, through counsel, filed a motion to vacate his guilty

plea as “[his] judgment was impaired due to an apparent migraine.” On September 27, 2022,

counsel filed a certificate, pursuant to Rule 604(d) (eff. July 1, 2017), providing that she consulted

with defendant by phone to ascertain his contentions of error in the entry of his plea and the

sentence, examined the trial court file and report of proceedings of the plea and sentencing hearing,

and made any amendments to the motion necessary to adequately present any defects in the

¶ 11 At a hearing on September 27, 2022, the State noted that defendant’s motion lacked an

affidavit supporting the allegation that defendant had a migraine that impaired his judgment, a fact

that was outside the record. The State argued the absence of an affidavit violated Rule 604(d) (eff.

July 1, 2017). Counsel responded:

“I can’t sign an affidavit attesting to the fact that he had migraine [sic] during the

plea proceedings because was [sic] not known to me at this time.

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I only learned of that allegation when Mr. Gately sent me a letter and called me,

letter dated September 5th on a phone conversation with few days after that, [sic] and based

on his desire to file this motion. I said in order to preserve his issue, I would file it for him.”

¶ 12 The court granted defendant permission to speak and he stated that he believed the record

would reflect that, when the parties discussed his guilty plea, counsel had asked the court to order

the jail to provide him with something to alleviate a migraine. Counsel said she thought defendant

was referring to the order the court signed for him to see a dentist, and defendant stated, “That is

incorrect.” Counsel stated she had no other orders besides the one for a dentist.

¶ 13 The court confirmed with counsel that the basis of defendant’s motion was that he was

impaired by a migraine when he pled guilty. The court asked if there were any other arguments on

defendant’s behalf, and counsel said no. The State argued it was defendant’s burden to show a

manifest injustice to withdraw his plea but the only information supporting his request to do so

was the allegation that he was impaired from a migraine, which was not supported by affidavit.

The State contended that nothing in defendant’s demeanor, comportment, or appearance on August

19, 2022, indicated he was suffering from a migraine, and plea negotiations had occurred before

that date. The court asked counsel if she wished to argue in rebuttal and counsel stated the record

of the plea hearing was clear and she would rely on it.

¶ 14 Defendant asked to speak and the court gave permission. He asked if the State would have

withdrawn the plea offer had he not accepted it on the day he pled guilty. The court stated it was

inappropriate for defendant to ask questions but he could add to the argument in his motion.

Defendant stated he believed the State would have withdrawn the plea offer had he not accepted it

at that hearing, meaning there had been pressure for him to accept it. Defendant explained that he

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had a headache and migraine problem that had been “compounded due to oral surgery.” The doctor

at the jail would not give him anything for it as he “was already taking Tylenol for the tooth

infection.” When he returned to jail on August 18, 2022, the doctor refused to see him. Thus, on

August 19, 2022, he “was extremely bothered by this headache.”

¶ 15 Defendant continued that “years ago, [he] would go to Diamond Headache Clinic on

Western and Devon,” for “clustered migraine[s]” that were so bad he was given a 24-hour number

to call. The court indicated that his history of migraine problems was “somewhat relevant but not

particularly relevant” to whether he was impaired when he entered his plea. Defendant stated he

had been trying to see someone for migraine treatment but was told that he did not look like he

was in pain. On August 19, 2022, he was in pain and “truly wanted to get this over with and get

everything done.” When the pain subsided he realized he had made a mistake.

¶ 16 The court stated that it recalled counsel explaining that defendant had a tooth issue and

asking for an order for him to see a dentist. No one ever indicated that defendant was in discomfort

from a migraine. The case had been continued from August 18, 2022, to August 19, 2022, for

defendant to consider the State’s plea offer. Defendant had not indicated on August 19, 2022, that

he did not feel well or was suffering from a migraine. Defendant had indicated he understood the

nature of the charge, the sentencing range, and the offer.

¶ 17 The court found that defendant did not meet his burden to withdraw his plea and denied

the motion. The court stated:

“In addition, with regards to not having supporting affidavit [sic] to support his

motion to vacate his plea of guilty with regards to having a migraine that day.

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I already made my record with regards to the facts that occurred on that day. There

is no affidavit attached to the motion.”

¶ 18 Defendant now appeals, arguing that we must remand for new postplea proceedings as

counsel failed to strictly comply with Rule 604(d) by not attaching to the motion to vacate his plea

an affidavit supporting his allegation that his judgment had been impaired by a migraine.

¶ 19 Rule 604(d) provides that before a defendant can appeal from a judgment entered upon a

guilty plea he must, within 30 days of being sentenced, move to withdraw the plea or reconsider

the sentence. Ill. S. Ct. R. 604(d) (eff. July 1, 2017). The rule is intended to eliminate unnecessary

appeals by allowing the trial court to hear and decide claims of impropriety in the entry of the plea,

including those that occurred outside the record. People v. Gorss, 2022 IL 126464, ¶ 15; People v.

Merriweather, 2013 IL App (1st) 113789, ¶ 14. The rule stipulates that, “[w]hen the motion is

based on facts that do not appear of record it shall be supported by affidavit.” Ill. S. Ct. R. 604(d)

(eff. July 1, 2017).

¶ 20 Rule 604(d) also requires a defendant’s counsel to file a certificate stating that counsel has

(1) consulted with the defendant to ascertain his contentions of error in the sentence and entry of

the guilty plea, (2) examined the trial court file and report of proceedings of the guilty plea and

sentencing hearing, and (3) made any amendments to the motion necessary to adequately present

any defects in the proceedings. Id. Counsel’s duty to amend the motion includes the duty to attach

an affidavit substantiating any allegations that do not appear of record. People v. Bridges, 2017 IL

App (2d) 150718, ¶ 9.

¶ 21 Counsel must strictly comply with Rule 604(d). Gorss, 2022 IL 126464, ¶ 19. Failure to

do so requires remand for the filing of a new motion and a new hearing. Id. Even where counsel

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files a facially valid certificate indicating counsel complied with the rule, the record may

demonstrate counsel did not actually fulfill her obligations. Bridges, 2017 IL App (2d) 150718,

¶ 8. We review whether counsel complied with Rule 604(d) de novo. Gorss, 2022 IL 126464, ¶ 10.

¶ 22 After reviewing the record, we conclude that counsel failed to strictly comply with Rule

604(d). Defendant filed a motion through counsel to vacate his plea. Counsel filed a facially valid

certificate providing that she consulted with defendant to ascertain his contentions, examined the

court file and report of proceedings of the guilty plea, and made any amendments to the motion

necessary to adequately present any defects in the proceedings. However, the motion claimed that

defendant had a migraine when he pled guilty, a fact that did not appear in the record. Thus, Rule

604(d) required the motion to be supported by an affidavit. Ill. S. Ct. R. 604(d) (eff. July 1, 2017).

Counsel did not attach an affidavit to the motion. Moreover, at the hearing on the motion, the State

noted the absence of an affidavit. Counsel responded that she could not have signed an affidavit

attesting that defendant had a migraine during the plea proceedings because she did not know it at

the time of the plea. Notwithstanding, counsel also failed to provide an affidavit from defendant

or call him to testify at the hearing.

¶ 23 Bridges is instructive. There, the defendant’s amended motion to withdraw his guilty plea

contained allegations that were not supported by the record. Bridges, 2017 IL App (2d) 150718,

¶ 9. Counsel filed a certificate of compliance with Rule 604(d) but failed to support the defendant’s

allegations with any affidavits. Id. ¶¶ 8-9. At the hearing on the motion, counsel also failed to

present any testimony, evidence, or argument in support of defendant’s motion. Id. ¶¶ 9-11. The

appellate court found that, functionally, counsel therefore “conce[ded] that the motion was without

merit,” and the hearing “served little purpose other than to clear a procedural hurdle” to an appeal.

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Id. ¶ 11. Accordingly, the appellate court concluded that the record showed counsel’s conduct and

the hearing had not satisfied Rule 604(d)’s strict-compliance standard. Id. ¶¶ 9-11.

¶ 24 Here, counsel likewise did not provide a supporting affidavit, call defendant to testify,

present any other evidence, or make any argument on his behalf. Rather, counsel indicated that she

had no record of defendant seeking migraine treatment, only filed the motion to “preserve his

issue,” and would rely on the record of the plea hearing, which included no discussion of

defendant’s migraine. Thus, as in Bridges, counsel essentially conceded that defendant’s claim

lacked merit and she was merely preserving it for a potential appeal.

¶ 25 The State argues that Bridges is distinguishable as the court there had only its own

recollection of the proceedings on which to base its decision on the defendant’s postplea motion

(see id. ¶ 9), whereas defendant here provided details about his migraine. The State therefore

contends that the absence of a supporting affidavit was a technical, nonsubstantive error that does

not require remand. In support, the State cites cases where counsel failed to file supporting

affidavits but remand was still deemed unnecessary as the defendants received full and fair

hearings to present evidence. See People v. Brown, 2023 IL App (4th) 220573, ¶ 50 (“Where

postplea counsel files a facially compliant Rule 604(d) certificate and the trial court determines

after a full and fair hearing that the defendant’s claims are meritless, defects in the pleadings do

not justify a remand for further proceedings.”); People v. Kocher, 2021 IL App (4th) 200610-U,

¶¶ 31-32 (same); People v. Jones, 2021 IL App (4th) 180497-U, ¶¶ 21-25 (same); see also People

v. Jackson, 2022 IL App (5th) 200042-U, ¶ 37 (remand unnecessary despite alleged inadequacy in

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motion where counsel developed claims at hearing and argued as to why defendant had a potential

defense). 2

¶ 26 However, the State’s cases are distinguishable, where in each one the defendants’ counsels

presented evidence, including calling the defendants to testify as to the allegations underlying their

claims. Brown, 2023 IL App (4th) 220573, ¶¶ 16-21; Jackson, 2022 IL App (5th) 200042-U, ¶¶ 20-

24; Kocher, 2021 IL App (4th) 200610-U, ¶ 14; Jones, 2021 IL App (4th) 180497-U, ¶¶ 9-10.

Again, counsel here did not call defendant to testify, present other evidence, or make any argument

in support of the motion to vacate.

¶ 27 The State is correct that the court here allowed defendant leeway to make his own

argument. However, we find it significant that defendant’s explanation about his migraine was

made as argument rather than sworn testimony and, in denying defendant’s motion, the court twice

noted that his motion lacked a supporting affidavit, wherein defendant could have sworn to the

truth of his allegation. Additionally, defendant stated counsel was incorrect that his claim referred

to his request to see a dentist, a difference that he and counsel could have clarified while preparing

an affidavit or during a prepared examination of him as a witness. Given the court’s statements

and counsel and defendant’s disagreement about the basis of defendant’s claim, we disagree with

the State that an affidavit could not have provided the court with any additional details on which

to base its decision.

¶ 28 We are likewise unpersuaded by the State’s argument that we should not remand because

defendant’s claim lacked merit and a supporting affidavit therefore would not have changed the

2 Unpublished cases filed under Rule 23(b) after January 1, 2021, may be cited as persuasive authority. Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023).

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court’s ruling. The State notes that, as a different plea offer was discussed on August 18, 2022,

plea negotiations were ongoing and did not solely occur on August 19, 2022. Moreover, the record

contains no indication that defendant was suffering from migraines. On August 19, 2022, he did

not indicate he was not feeling well. He also actively engaged in the proceedings, requesting

clarifications about the MSR term, initially stating he did not agree with the factual basis, and

thanking the court before it imposed sentence. The court noted when denying defendant’s motion

that he had indicated he understood the charge, the possible sentence, and the offer. Thus,

according to the State, an affidavit reiterating defendant’s contention that he had a migraine on

August 19, 2022, would not have persuaded the court to grant the motion.

¶ 29 However, the question here is not whether the court correctly found defendant’s motion

without merit but whether counsel strictly complied with Rule 604(d). As noted, the State argued

at the hearing that defendant’s allegation was not supported by an affidavit and the court twice

stated when denying the motion that it lacked a supporting affidavit. On this record, we cannot say

that the court’s judgment would necessarily have been the same had counsel supported defendant’s

claim with an affidavit, as Rule 604(d) required. Ill. S. Ct. R. 604(d) (eff. July 1, 2017).

¶ 30 Accordingly, we conclude that counsel failed to strictly comply with Rule 604(d). We

therefore vacate the court’s judgment denying defendant’s motion to vacate his guilty plea and

remand for new postplea proceedings. See Gorss, 2022 IL 126464, ¶ 19 (remedy for non-strict

compliance with Rule 604(d) is remand for the filing of new postplea motion and new hearing).

¶ 31 For the foregoing reasons, we vacate the judgment of the circuit court of Cook County.

¶ 32 Vacated and remanded.

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