People v. Grigalanz

2020 IL App (4th) 180313-U

• Court: Appellate Court of Illinois
• Decided: April 20, 2020
• Docket: 4-18-0313
• Status: Unpublished

Opinion

NOTICE 2020 IL App (4th) 180313-U This order was filed under Supreme FILED Court Rule 23 and may not be cited NO. 4-18-0313 April 20, 2020 as precedent by any party except in Carla Bender the limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate under Rule 23(e)(1). Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Jersey County PHILLIP S. GRIGALANZ, ) No. 15CF188 Defendant-Appellant. ) ) Honorable ) Eric S. Pistorius, ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justices Knecht and DeArmond concurred in the judgment.

ORDER ¶1 Held: The appellate court reversed and remanded for strict compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017).

¶2 Defendant, Phillip S. Grigalanz, who had pleaded guilty to child pornography

(720 ILCS 5/11-20.1(a)(1)(vii) (West 2014)), filed a timely motion to withdraw his guilty plea,

which the trial court denied. Defendant appeals, arguing (1) defense counsel failed to strictly

comply with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017), (2) the trial court failed to

substantially comply with Illinois Supreme Court Rule 402(a) (eff. July 1, 2012), or,

alternatively, (3) defense counsel was ineffective for failing to amend defendant’s motion to

withdraw his guilty plea. Because we agree with defendant’s first argument, we address only the

facts relevant to that issue and remand for strict compliance with Rule 604(d). ¶3 I. BACKGROUND

¶4 On November 27, 2017, defendant pleaded guilty to one count of child

pornography (720 ILCS 5/11-20.1(a)(1)(vii) (West 2014)). The trial court sentenced him to 17

years’ imprisonment.

¶5 Defendant pro se filed a motion to withdraw his guilty plea, requesting “that the

matter be reset for trial (allowing sufficient time for compulsory process of newly discovered

evidence).” The trial court conducted a hearing on defendant’s motion, at which the following

exchange occurred:

“THE COURT: *** Do you wish to proceed on [the motion to withdraw

guilty plea]?

DEFENDANT: Yes I do Your Honor. I left it pretty vanilla at the time.

I’ve learned—well I’ve legally discovered new evidence from several different

avenues that would have exculpated me had I gone to trial.

THE COURT: Given the fact that you filed this pro se, I’m gonna give

your attorney leave to discuss whatever issues you think you may have in terms of

withdrawing your plea and then set this for further hearing about 30 days down

the road. Do you understand that?

DEFENDANT: Yes Your Honor.

THE COURT: Okay. I’ll allow him to prepare a more formal Petition

based upon his conversation with you.”

¶6 The next month, the trial court conducted another hearing on defendant’s motion

to withdraw his guilty plea. Defense counsel informed the trial court that he had spoken to

defendant about the motion and concluded the “issue related to potential outstanding evidence”

-2- was “moot.” However, counsel neglected to file a Rule 604(d) certificate. Ultimately, the trial

court denied defendant’s motion.

¶7 This appeal followed.

¶8 II. ANALYSIS

¶9 Defendant first argues defense counsel failed to comply with Rule 604(d) by

neglecting to file a Rule 604(d) certificate, and, consequently, we must remand for further

postplea proceedings in strict compliance with the rule. The State concedes this issue and agrees

remand is necessary. We review de novo whether counsel complied with Rule 604(d). People v.

Grice, 371 Ill. App. 3d 813, 815, 867 N.E.2d 1143, 1145 (2007).

¶ 10 “Rule 604(d) governs the procedure to be followed when a defendant wishes to

appeal from a judgment entered upon a guilty plea.” In re H.L., 2015 IL 118529, ¶ 7, 48 N.E.3d

1071. It provides that the defendant who wishes to appeal must first file a motion to withdraw the

guilty plea. See Ill. S. Ct. R. 604(d) (eff. July 1, 2017). If the defendant is indigent, the trial court

appoints counsel, who is then required to do the following:

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

certificate stating that the attorney has consulted with the

defendant *** 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.” Id.

-3- Defense counsel must strictly comply with Rule 604(d)’s certification requirement. H.L., 2015 IL

118529, ¶ 8. “[W]hen defense counsel neglects to file a Rule 604(d) certificate, the appropriate

remedy is a remand for (1) the filing of a Rule 604(d) certificate; (2) the opportunity to file a new

motion to withdraw the guilty plea and/or reconsider the sentence, if counsel concludes that a

new motion is necessary; and (3) a new motion hearing.” People v. Lindsay, 239 Ill. 2d 522, 531,

942 N.E.2d 1268, 1274 (2011).

¶ 11 Here, we agree with the parties and find defense counsel failed to strictly comply

with Rule 604(d) by neglecting to file a Rule 604(d) certificate. As a result, we must remand to

the trial court for strict compliance with the rule. See id. (articulating the appropriate remedy

when defense counsel neglects to file a Rule 604(d) certificate). Because we must remand for

further postplea proceedings, we do not reach the merits of defendant’s remaining arguments.

¶ 12 III. CONCLUSION

¶ 13 For the reasons stated, we reverse the trial court’s judgment and remand for

(1) the filing of a Rule 604(d) certificate, (2) the opportunity to file a new postplea motion, and

(3) a new motion hearing.

¶ 14 Reversed and remanded with directions.

-4-