People v. Maciewski

2022 IL App (3d) 200147-U

Opinion

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).

2022 IL App (3d) 200147-U

Order filed September 22, 2022 ____________________________________________________________________________

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. 3-20-0147 v. ) Circuit No. 18-CF-766 ) DANIEL D. MACIEWSKI, ) Honorable ) Michael D. Risinger, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

PRESIDING JUSTICE O’BRIEN delivered the judgment of the court. Justices Holdridge and Hauptman concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: Postplea counsel complied with the requirements of Illinois Supreme Court Rule 604(d), and the circuit court did not consider any improper factors at sentencing.

¶2 Defendant, Daniel D. Maciewski, appeals the denial of his motion to withdraw his guilty

plea. He argues that new postplea proceedings are required because counsel failed to comply with

Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). Defendant also argues the Tazewell County

circuit court improperly considered the victim’s psychological and mental harm as an aggravating

factor, because such harm is inherent in the offense. We affirm. ¶3 I. BACKGROUND

¶4 The State charged defendant by indictment with two counts of criminal sexual assault (720

ILCS 5/11-1.20(a)(3) (West 2018)) and three counts of aggravated criminal sexual abuse (id. § 11-

1.60(b)). The court appointed counsel to represent defendant. On September 24, 2019, the second

day of defendant’s jury trial, defendant agreed to plead guilty to count I, criminal sexual assault.

In exchange, the State agreed to dismiss all other charges.

¶5 The parties agreed that the testimony presented at trial prior to the plea would serve as the

factual basis for the plea. The testimony revealed that defendant lived with his girlfriend, Karen

W., and her daughter, S.W., and that on September 21, 2018, defendant touched S.W.’s vagina

with his tongue. S.W. was 13 years old at the time of the offense. The court accepted defendant’s

plea to criminal sexual assault, and the State dismissed the remaining charges.

¶6 Before sentencing, defendant filed a motion as a self-represented litigant arguing he

received ineffective assistance of counsel. In response, the court appointed new counsel to review

the case and represent defendant at the sentencing hearing. Postplea counsel filed a motion to

withdraw plea on November 22, 2019.

¶7 The court held the sentencing hearing on December 19, 2019. At the hearing, postplea

counsel stated that he was aware he prematurely filed a motion to withdraw defendant’s guilty

plea. He further stated that if defendant requested it, he was prepared to refile the motion after the

hearing.

¶8 Defendant’s presentence investigation report included a victim impact letter from S.W.,

who stated that she developed trust issues because of defendant’s actions and that defendant “took

[her] mental innocences [sic] away.” The court sentenced defendant to 9½ years’ imprisonment.

The court considered the statutory factors in mitigation and aggravation, stating:

2 “On the mitigation factors I did strongly count Factor No. 2. I did not count No. 3.

I’m trying to put myself there, and I just can’t. No. 6, compensating the victim. I

mean, he did testify to that. I actually put Factor No. 7 in there because I read this

for the first time, I guess I hadn’t seen it before ***.

As to aggravation, certainly, No. 1, in fact, because of you [the State], I had

to go do some research—you know, this goes back a year—as to the emotional and

mental and that is definitely considered harm, so that certainly is a fair argument.

And the Factor 3 you mentioned, criminal history, that butts up against Factor 7 in

mitigation, and I would find that 7 overrules 3. Factor No. 7 on aggravation,

deterrence, that is always a factor.”

¶9 On January 2, 2020, postplea counsel filed a motion to withdraw defendant’s plea and/or

reconsider sentence. On January 13, 2020, counsel filed a Rule 604(d) certificate. The certificate

stated that counsel (1) consulted with defendant, (2) examined the circuit court file and report of

proceedings for both the plea and sentencing hearings, and (3) made any necessary amendments

to the postplea motions.

¶ 10 Before the hearing on defendant’s motions began, postplea counsel stated he had

procedural matters to address:

“That even though the certificate of counsel pursuant to 604(d) was filed January

13, 2020, and I received the electric [sic] transcript prior to that I believe, I’m sorry,

subsequent to that, I had reviewed everything with him about that. I actually let him

read the entire transcripts. I have the guilty plea and the trial. I also—we also went

through the entire transcript for the sentencing hearing. So the certificate of service

is appropriate and was filed in compliance with the rule after everything was

3 reviewed and that as of this morning there are no additional issues that [defendant]

directed me to file with regards to either withdrawing his guilty plea or

reconsidering his sentence.”

¶ 11 In response to postplea counsel’s statement, the circuit court questioned defendant, who

confirmed that counsel was correct and that they had reviewed all the transcripts together. The

court then held a hearing on defendant’s motion, which it ultimately denied. Defendant appeals.

¶ 12 II. ANALYSIS

¶ 13 A. Illinois Supreme Court Rule 604(d)

¶ 14 Defendant argues the cause must be remanded for new postplea proceedings because

postplea counsel failed to comply with Rule 604(d). Specifically, defendant argues that the record

impeaches defense counsel’s certificate, thereby indicating noncompliance.

¶ 15 Rule 604(d) requires, in relevant part, that defendant’s attorney

“[S]hall 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).

Rule 604(d) ensures that any improper conduct or alleged improprieties that may have resulted in

the entry of a guilty plea are brought to the court’s attention before an appeal is taken. People v.

Tousignant, 2014 IL 115329, ¶ 16. The rule is intended to make clear that counsel “has reviewed

4 the defendant’s claim and considered all relevant bases for the motion to withdraw the guilty plea

or to reconsider the sentence.” (Emphasis omitted.) Id.

¶ 16 Strict compliance with Rule 604(d) is required. In re H.L., 2015 IL 118529, ¶ 8. The failure

to strictly comply with the provisions of Rule 604(d) requires remand to the circuit court for a new

hearing on the motion to withdraw or reconsider. People v. Janes, 158 Ill. 2d 27, 33 (1994). It is

not our role to pore over the record to determine whether counsel has complied with the rule.

People v. Dismuke, 355 Ill. App. 3d 606, 609 (2005). Unless the record undermines the certificate,

we only consider the certificate itself to determine compliance. People v. Neal, 403 Ill. App. 3d

757, 760 (2010). The question of whether counsel complied with Rule 604(d) is subject to de novo

review. People v. Herrera, 2012 IL App (2d) 110009, ¶ 10.

¶ 17 Here, counsel complied with the requirements of Rule 604(d). His statement at the

subsequent hearing did not impeach counsel’s certificate. Counsel’s certificate specifically attested

that he (1) consulted with defendant, (2) examined the circuit court file and report of proceedings

for both the plea and sentencing hearings, and (3) made any necessary amendments to the postplea

motions. Nevertheless, defendant contends that counsel’s statement to the court rebuts the

affirmations in the certificate because counsel stated he received the electronic transcript

“subsequent to” filing the certificate. Defendant argues that counsel’s remark indicates that he filed

the Rule 604(d) certificate before reading the transcripts. In making his argument, defendant

ignores the rest of counsel’s statement, where he specifically told the court that his certificate “was

filed in compliance with the rule after everything was reviewed.”

¶ 18 Defendant further relies on People v. Love, 385 Ill. App. 3d 736, 737 (2008), in support of

his argument, but that case is readily distinguishable. In Love, counsel filed a certificate that was

facially compliant but made certain statements to the court indicating that she had not finished

5 compliance before filing it. Id. Specifically, counsel stated to the court that she needed “to review

the transcript of the plea itself in order to proceed,” indicating that she had not yet reviewed the

transcripts as required under Rule 604(d). (Emphasis omitted.) Id. However, unlike Love, counsel’s

statement here does not leave us with “the distinct impression that defense counsel had not, in fact,

examined the transcript.” Id. Indeed, counsel affirmatively stated that the certificate “was filed ***

after everything was reviewed.” Counsel’s statement is not inconsistent with his certificate, as he

made a clear and direct statement that he complied with the rule. Counsel indicated that he filed

his certificate in compliance with Rule 604(d) and that he had reviewed the transcripts with

defendant, not that he did not receive the transcripts after filing the certificate, as defendant argues.

Accordingly, because the Rule 604(d) certificate is not impeached by the record, we find that it

complies with the rule.

¶ 19 B. Sentencing

¶ 20 Defendant also argues that the court abused its discretion when it considered the victim’s

emotional and mental harm as a factor in aggravation because harm is an inherent factor of criminal

sexual assault.

¶ 21 It is well established that a factor inherent in the offense should not be considered as a

factor in aggravation at sentencing. People v. Conover, 84 Ill. 2d 400, 404 (1981). There is a strong

presumption, however, that the circuit court based its sentencing determination on proper legal

reasoning. People v. Bowman, 357 Ill. App. 3d 290, 303-04 (2005). We therefore review the court’s

sentencing decision for an abuse of discretion. People v. Stacey, 193 Ill. 2d 203, 209 (2000).

¶ 22 The charge defendant pled guilty to states that “[a] person commits criminal sexual assault

if that person commits an act of sexual penetration and *** is a family member of the victim, and

the victim is under 18 years of age.” 720 ILCS 5/11-1.20(a)(3) (West 2018). We note that harm is

6 not an explicit element. Defendant’s only argument is that harm is implicit in the offense and

therefore may not be factored into any sentencing decisions.

¶ 23 Even so, People v. Saldivar, 113 Ill. 2d 256, 269 (1986), holds the degree of harm may be

considered as an aggravating factor, even if that factor is arguably implicit in the offense. Case

law further supports a finding that it is proper to consider the psychological or emotional harm

suffered by minor victims of sexual assault. See People v. Nevitt, 228 Ill. App. 3d 888, 892 (1992);

People v. Ulmer, 158 Ill. App. 3d 148, 151 (1987).

¶ 24 Applying these principles to the instant case, we find that an offense of criminal sexual

assault can result in varying degrees of psychological harm, and the court did not err when

considering this as a factor at sentencing.

¶ 25 III. CONCLUSION

¶ 26 The judgment of the circuit court of Tazewell County is affirmed.

¶ 27 Affirmed.