2016 IL App (3d) 140262
Opinion filed May 6, 2016 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Tazewell County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-14-0262 v. ) Circuit No. 13-CF-282 ) DAVID JORDAN, ) Honorable ) Kevin R. Galley, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court, with opinion. Presiding Justice O'Brien and Justice Schmidt concurred in the judgment and opinion. _____________________________________________________________________________
OPINION
¶1 Defendant, David Jordan, pled guilty to first degree murder. Defendant subsequently
filed a motion to withdraw his guilty plea, which the trial court denied. Defendant appeals
arguing that postplea counsel failed to strictly comply with Illinois Supreme Court Rule 604(d)
(eff. Feb. 6, 2013) because he did not certify that he consulted with defendant to ascertain
defendant's contentions of error in the entry of the guilty plea. We reverse and remand for new
postplea proceedings.
¶2 FACTS ¶3 The State charged defendant by indictment with three counts of first degree murder (720
ILCS 5/9-1(a)(1), (a)(2) (West 2012)). Count I alleged that defendant, with the intent to kill or
do great bodily harm, shot and killed Larry Vandyke with a firearm. The trial court appointed
two attorneys to represent defendant.
¶4 Ultimately, defendant pled guilty to the first count (intentional murder). 1 The parties
agreed to a negotiated plea of 50 years' imprisonment. The term included 25 years'
imprisonment for murder, plus 25 years for the firearm enhancement. In addition, the State
agreed not to file any drug charges against defendant.
¶5 Subsequently, defendant filed five pro se motions to withdraw his guilty plea. Defendant
also filed several pro se notices of appeal. Defendant's attorneys subsequently filed a motion
that requested the trial court to strike the notices of appeal without prejudice as being premature.
The motion also asked for leave to file an amended motion to withdraw defendant's guilty plea.
The trial court granted the requests.
¶6 Postplea counsel appeared on defendant's behalf and filed an amended motion to
withdraw the guilty plea. Along with that motion, postplea counsel filed a Rule 604(d)
certificate. The certificate states:
"Defense Counsel in the current case has consulted with the Defendant in
person to ascertain defendant's contentions of error in the sentence. Further,
Defense Counsel has examined the court file and reviewed the report of the
proceedings to determine if any additional amendments needed to be added for
the adequate presentation of any defects in the proceedings to perfect the
Defendant's right to appeal."
1 Counts II and III were dismissed.
2 ¶7 The State filed a response to defendant's motion. After a hearing, the trial court denied
defendant's motion to withdraw his guilty plea.
¶8 ANALYSIS
¶9 On appeal, defendant argues that postplea counsel's Rule 604(d) certificate failed to
strictly comply with Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013). Because postplea
counsel failed to certify that he consulted with defendant to ascertain his contentions of error in
the guilty plea, we find remand for new postplea proceedings is necessary.
¶ 10 Rule 604(d) requires a defendant seeking to appeal from a judgment entered upon a guilty
plea to first file a motion to withdraw the guilty plea and vacate the judgment. Ill. S. Ct. R.
604(d) (eff. Feb. 6, 2013). The version of Rule 604(d) in effect at the time defendant moved to
withdraw his guilty plea required that upon the filing of such a motion,
"[t]he defendant's attorney shall file with the trial court a certificate stating that
the attorney has consulted with the defendant either by mail or in person to
ascertain defendant's contentions of error in the sentence or the entry of the plea
of guilty, has examined the trial court file and report of proceedings of the plea of
guilty, and has made any amendments to the motion necessary for adequate
presentation of any defects in those proceedings." Id. 2
¶ 11 In this case, postplea counsel only certified that he consulted with defendant to ascertain
his contentions of error in the sentence. Postplea counsel did not certify that he consulted with
2 During the pendency of this appeal, Rule 604(d) was amended to require postplea
counsel to certify that counsel has consulted with defendant "to ascertain defendant's contentions
of error in the sentence and the entry of the plea of guilty." (Emphasis added.) Ill. S. Ct. R.
604(d) (eff. Dec. 3, 2015).
3 defendant to ascertain his contentions of error in his guilty plea. Although the version of Rule
604(d) in effect at the time used the term "or," our supreme court has held that "counsel is
required 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. Because postplea counsel's certificate only certified that he
consulted with defendant regarding defendant's contentions of error in the sentence, we find he
did not strictly comply with the rule. Id. ¶ 23. The remedy for failure to strictly comply with the
rule is remand for the filing of a new postplea motion (if defendant so desires), a hearing on that
motion, and strict compliance with the rule. Id. ¶¶ 5, 23.
¶ 12 In reaching this conclusion, we reject the State's argument that remand is unnecessary
because the deficiency in postplea counsel's certificate was merely an oversight. Specifically,
the State argues that remand would be a waste of judicial resources because the record from the
hearing on the motion shows that postplea counsel consulted with defendant regarding his
contentions of error in the guilty plea. In other words, the State emphasizes the fact that
defendant does not argue that he had objections to his plea that postplea counsel did not raise or
that he was prejudiced by counsel's deficient certificate. In support, the State relies on People v.
Montag, 2014 IL App (4th) 120993, and People v. Scarbrough, 2015 IL App (3d) 130426.
¶ 13 In Montag the reviewing court found that postplea counsel's Rule 604(d) certificate was
technically deficient, but did not remand for strict compliance with the rule because defendant
did not argue that postplea counsel failed to comply with the substantive requirements of the rule
or argue how the technically deficient certificate undermined the purpose of Rule 604(d).
Montag, 2014 IL App (4th) 120993, ¶ 25. We note, however, that Montag was decided prior to
our supreme court's decision in Tousignant. Therefore, we disregard Montag as precedential in
4 light of our supreme court's directive in Tousignant that postplea counsel must strictly comply
with the provisions of Rule 604(d) and failure to do so requires remand for strict compliance
with the rule. Tousignant, 2014 IL 115329, ¶¶ 5, 23.
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2016 IL App (3d) 140262
Opinion filed May 6, 2016 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Tazewell County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-14-0262 v. ) Circuit No. 13-CF-282 ) DAVID JORDAN, ) Honorable ) Kevin R. Galley, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court, with opinion. Presiding Justice O'Brien and Justice Schmidt concurred in the judgment and opinion. _____________________________________________________________________________
OPINION
¶1 Defendant, David Jordan, pled guilty to first degree murder. Defendant subsequently
filed a motion to withdraw his guilty plea, which the trial court denied. Defendant appeals
arguing that postplea counsel failed to strictly comply with Illinois Supreme Court Rule 604(d)
(eff. Feb. 6, 2013) because he did not certify that he consulted with defendant to ascertain
defendant's contentions of error in the entry of the guilty plea. We reverse and remand for new
postplea proceedings.
¶2 FACTS ¶3 The State charged defendant by indictment with three counts of first degree murder (720
ILCS 5/9-1(a)(1), (a)(2) (West 2012)). Count I alleged that defendant, with the intent to kill or
do great bodily harm, shot and killed Larry Vandyke with a firearm. The trial court appointed
two attorneys to represent defendant.
¶4 Ultimately, defendant pled guilty to the first count (intentional murder). 1 The parties
agreed to a negotiated plea of 50 years' imprisonment. The term included 25 years'
imprisonment for murder, plus 25 years for the firearm enhancement. In addition, the State
agreed not to file any drug charges against defendant.
¶5 Subsequently, defendant filed five pro se motions to withdraw his guilty plea. Defendant
also filed several pro se notices of appeal. Defendant's attorneys subsequently filed a motion
that requested the trial court to strike the notices of appeal without prejudice as being premature.
The motion also asked for leave to file an amended motion to withdraw defendant's guilty plea.
The trial court granted the requests.
¶6 Postplea counsel appeared on defendant's behalf and filed an amended motion to
withdraw the guilty plea. Along with that motion, postplea counsel filed a Rule 604(d)
certificate. The certificate states:
"Defense Counsel in the current case has consulted with the Defendant in
person to ascertain defendant's contentions of error in the sentence. Further,
Defense Counsel has examined the court file and reviewed the report of the
proceedings to determine if any additional amendments needed to be added for
the adequate presentation of any defects in the proceedings to perfect the
Defendant's right to appeal."
1 Counts II and III were dismissed.
2 ¶7 The State filed a response to defendant's motion. After a hearing, the trial court denied
defendant's motion to withdraw his guilty plea.
¶8 ANALYSIS
¶9 On appeal, defendant argues that postplea counsel's Rule 604(d) certificate failed to
strictly comply with Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013). Because postplea
counsel failed to certify that he consulted with defendant to ascertain his contentions of error in
the guilty plea, we find remand for new postplea proceedings is necessary.
¶ 10 Rule 604(d) requires a defendant seeking to appeal from a judgment entered upon a guilty
plea to first file a motion to withdraw the guilty plea and vacate the judgment. Ill. S. Ct. R.
604(d) (eff. Feb. 6, 2013). The version of Rule 604(d) in effect at the time defendant moved to
withdraw his guilty plea required that upon the filing of such a motion,
"[t]he defendant's attorney shall file with the trial court a certificate stating that
the attorney has consulted with the defendant either by mail or in person to
ascertain defendant's contentions of error in the sentence or the entry of the plea
of guilty, has examined the trial court file and report of proceedings of the plea of
guilty, and has made any amendments to the motion necessary for adequate
presentation of any defects in those proceedings." Id. 2
¶ 11 In this case, postplea counsel only certified that he consulted with defendant to ascertain
his contentions of error in the sentence. Postplea counsel did not certify that he consulted with
2 During the pendency of this appeal, Rule 604(d) was amended to require postplea
counsel to certify that counsel has consulted with defendant "to ascertain defendant's contentions
of error in the sentence and the entry of the plea of guilty." (Emphasis added.) Ill. S. Ct. R.
604(d) (eff. Dec. 3, 2015).
3 defendant to ascertain his contentions of error in his guilty plea. Although the version of Rule
604(d) in effect at the time used the term "or," our supreme court has held that "counsel is
required 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. Because postplea counsel's certificate only certified that he
consulted with defendant regarding defendant's contentions of error in the sentence, we find he
did not strictly comply with the rule. Id. ¶ 23. The remedy for failure to strictly comply with the
rule is remand for the filing of a new postplea motion (if defendant so desires), a hearing on that
motion, and strict compliance with the rule. Id. ¶¶ 5, 23.
¶ 12 In reaching this conclusion, we reject the State's argument that remand is unnecessary
because the deficiency in postplea counsel's certificate was merely an oversight. Specifically,
the State argues that remand would be a waste of judicial resources because the record from the
hearing on the motion shows that postplea counsel consulted with defendant regarding his
contentions of error in the guilty plea. In other words, the State emphasizes the fact that
defendant does not argue that he had objections to his plea that postplea counsel did not raise or
that he was prejudiced by counsel's deficient certificate. In support, the State relies on People v.
Montag, 2014 IL App (4th) 120993, and People v. Scarbrough, 2015 IL App (3d) 130426.
¶ 13 In Montag the reviewing court found that postplea counsel's Rule 604(d) certificate was
technically deficient, but did not remand for strict compliance with the rule because defendant
did not argue that postplea counsel failed to comply with the substantive requirements of the rule
or argue how the technically deficient certificate undermined the purpose of Rule 604(d).
Montag, 2014 IL App (4th) 120993, ¶ 25. We note, however, that Montag was decided prior to
our supreme court's decision in Tousignant. Therefore, we disregard Montag as precedential in
4 light of our supreme court's directive in Tousignant that postplea counsel must strictly comply
with the provisions of Rule 604(d) and failure to do so requires remand for strict compliance
with the rule. Tousignant, 2014 IL 115329, ¶¶ 5, 23.
¶ 14 In Scarbrough (decided after Tousignant) postplea counsel filed a Rule 604(d) certificate
that tracked verbatim the language of the version of Rule 604(d) at the time. Scarbrough, 2015
IL App (3d) 130426, ¶ 37. On review, this court found that postplea counsel's Rule 604(d)
certificate was technically deficient, but went on to state:
"That said, we find in the instant case that the defendant does not contend
that he had objections to the entry of his guilty plea—independent of the
sentencing issues that have been raised—that his counsel failed to include in his
postplea proceedings. Rather he raises only a claim of a technical semantic defect
in the Rule 604(d) certificate.
We agree that the language used in the certificate was insufficiently
precise and technically noncompliant, but defendant has raised no claim of
omitted legal contentions or of prejudice. Accordingly we reject defendant's
prayer for a remand for a more compliant Rule 604(d) certificate." Id. ¶¶ 40-41.
¶ 15 To the extent that Scarbrough suggests that a defendant on appeal challenging postplea
counsel's technically deficient Rule 604(d) certificate must also show prejudice to obtain remand,
it is incorrect. See People v. Mason, 2015 IL App (4th) 130946, ¶¶ 13-14 (agreeing with
Scarbrough to the extent that a Rule 604(d) certificate which tracks the language of the rule is
technically deficient, but holding that Tousignant requires remand for strict compliance); See
also O'Casek v. Children's Home & Aid Society of Illinois, 229 Ill. 2d 421, 440 (2008) ("the
opinion of one district, division, or panel of the appellate court is not binding on other districts,
5 divisions, or panels"). Again, Tousignant requires postplea counsel to strictly comply with the
provisions of Rule 604(d) and failure to do so requires remand for strict compliance with the
rule. Tousignant, 2014 IL 115329, ¶¶ 5, 23.
¶ 16 Thus, the holding in Scarbrough, which I authored, should not have included any
reference to prejudice. Here, postplea counsel's certificate fails to reference any effort he made
to ascertain defendant's contentions of error in his guilty plea. We will not excuse this oversight.
See People v. Willis, 2015 IL App (5th) 130020, ¶ 23 (refusing to look beyond the four corners
of a Rule 604(d) certificate).
¶ 17 CONCLUSION
¶ 18 The judgment of the circuit court of Tazewell County is reversed and remanded for new
¶ 19 Reversed and remanded.