2026 IL App (2d) 240447-U No. 2-24-0447 Order filed March 3, 2026
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NIKKOLAS W. OLIVER, Defendant-Appellant.
Appeal from the Circuit Court of Lake County. Honorable D. Christopher Lombardo, Judge, Presiding. No. 17-CF-2442
JUSTICE HUTCHINSON delivered the judgment of the court. Justices Birkett and Mullen concurred in the judgment.
ORDER
¶1 Held: Following a remand for compliance with Illinois Supreme Court Rule 604(d): (1) a second remand was required because the record refuted postremand counsel’s certification that he made all necessary amendments to defendant’s claim that plea counsel was ineffective and misadvised defendant regarding the 2021 plea offer, which expired; and (2) no remand was required on defendant’s claim that plea counsel misadvised him about the terms of his 2022 plea agreement, because defendant had a full and fair hearing on the claim after the first remand, and the trial court properly found the claim was meritless.
¶2 Defendant, Nikkolas W. Oliver, pleaded guilty to being an armed habitual criminal, a Class
X felony (720 ILCS 5/24-1.7(a) (West 2016)). The agreed sentencing range for the plea was 6 to
60 years in prison at 85%. The trial court sentenced defendant to 24 years in prison. Defendant
contends that this cause must be remanded for a second time for compliance with Illinois Supreme Court Rule 604(d) (eff. Apr. 15, 2024) because the record refutes his counsel’s certification that
he made any amendments to the postplea motion necessary for an adequate presentation of
defendant’s claims of error. We affirm in part, vacate in part, and remand for further proceedings.
¶3 I. BACKGROUND
¶4 In October 2017, a grand jury indicted defendant on six counts, based on offenses
committed on September 10, 2017: armed violence (720 ILCS 5/33A-2(a) (West 2016)),
aggravated battery with a firearm (id. § 12-3.05(e)(1)), aggravated discharge of a firearm (id. § 24-
1.2(a)(2)); armed habitual criminal (AHC) (id. § 24-1.7(a)), unlawful use of weapons by a felon
(id. § 24-1.1(a)), and unlawful possession of a controlled substance (720 ILCS 570/402(c) (West
2016)). On November 13, 2018, the State filed a notice informing defendant that, because of his
previous Class X felonies, he would be eligible for a mandatory sentence of life in prison if
convicted of armed violence, aggravated battery with a firearm, or AHC.
¶5 Defendant was first represented by an assistant public defender and later retained private
counsel (plea counsel). Because the assistant public defender subsequently became chief of the
felony division for the Lake County State’s Attorney’s Office, defendant filed a motion requesting
a special prosecutor. On June 30, 2021, the court appointed the Illinois Attorney General’s Office
to represent the State.
¶6 On September 1, 2021, the State informed the trial court that it had made an offer to
defendant. Under the terms of the offer, defendant would plead guilty to AHC and serve 13 years
in prison at 85%. The court informed defendant that, if he proceeded to trial and was found guilty
of the most serious offenses, he would face a mandatory sentence of life in prison. The court then
asked defendant if he understood the State’s offer as well as the potential penalties if convicted at
-2- trial, and defendant replied, “Yes, I do, Your Honor.” The State told the court that it would keep
the offer open until October 4, 2021.
¶7 At a hearing held on October 4, 2021, with defendant present, plea counsel stated,
“Your Honor, if I may. [The State] gave me an offer in this matter, and in terms of the
offer, the statute keeps on changing so the offer that they gave me doesn’t reflect the statute,
what the statute is. *** I’m going to try to address that with the [State] to see if I can
probably resolve this case.”
¶8 At a case management hearing held on December 1, 2021, the State informed the trial court
that defendant was “not present due to a Covid break out at the jail.” When the court asked, “Where
are we at with case management?” plea counsel replied, “I gave the State a good offer to try to
resolve this case. He rejected it, [Y]our Honor. That’s the last time I talked to the State.” The court
then asked, “All right, what do you want to do regarding next dates?” and the State replied, “Judge,
I leave that to [plea counsel]. We are set for trial. ***.”
¶9 The parties appeared for trial on April 18, 2022. Defendant waived his right to a jury trial,
opting for a bench trial. The trial court asked the parties about possible sentencing ranges for the
offenses. The State argued that, for AHC, the base range was 6 to 30 years but that enhancements
could increase the term to 60 years or require a life sentence. In response, plea counsel argued that
defendant was not eligible for a mandatory life sentence. The parties also argued whether
defendant had committed the proper predicate offenses to be convicted of AHC. The court told
defendant, “I’m not at this time indicating whether I would *** find that you are eligible for a life
sentence. That is something that would only I think be relevant after the State has met its burden
to convict on [AHC]. You understand that?” Defendant replied, “Yes, Your Honor.”
-3- ¶ 10 The trial court then asked about prior plea negotiations. The State acknowledged the offer
of 13 years at 85% for a plea to AHC but said the offer had been revoked. No other State offers
were pending. With defendant’s agreement, attorneys for the parties met in the court’s chambers
for a conference under Illinois Supreme Court Rule 402 (eff. July 1, 2012). Following the
conference, plea counsel spoke privately to defendant, and then the hearing resumed. The court
explained the negotiated plea to defendant. The court began by noting that, if convicted at trial,
defendant “would be facing mandatory natural life in prison.” The State’s offer was that defendant
would plead guilty to AHC, but the State would adduce only one of defendant’s prior convictions,
so as not to trigger mandatory life sentencing. After further discussion of prior offenses and
possible enhancements, the following exchange ensued:
“THE COURT: *** Thus, the range of punishment would be 6 [years] as a
minimum, 60 [years] as a maximum, all requiring you to serve 85 percent of your sentence,
followed by a period of mandatory supervised release ***.
Is that your understanding of what your attorney shared with you of the negotiation,
that it would be an open plea 1 and the [c]ourt would sentence you between 6 [years] and
60 [years]?
THE DEFENDANT: Yes, sir, Your Honor.
THE COURT: Do you have any questions whatsoever about the possible penalties
that you face, the possible penalties you would face under this new negotiation?
1 Below, the plea was frequently described as an “open plea,” but this was incorrect. The plea was
a negotiated one in that the State made a sentencing concession by agreeing not to introduce evidence that
would have, as the parties agreed, triggered a mandatory life sentence. See Ill. S. Ct. R. 604(d) (eff. July 1,
2017).
-4- THE DEFENDANT: No, sir, Your Honor.
THE COURT: [Plea counsel], does your client wish to proceed with trial or has he
decided to enter a plea under the newest terms?
[PLEA COUNSEL]: We’re going to ask the [c]ourt to accept the plea to Count 4
[AHC] of this matter and continue it for sentencing.
THE COURT: So obviously, [defendant], this is a very important decision. Do you
have any questions about anything thus far?
THE DEFENDANT: No, sir, Your Honor.”
¶ 11 The trial court noted that defendant had signed a “Waiver of Trial” form. Before accepting
defendant’s plea, the trial court admonished defendant, detailing the rights he was giving up by
waiving his right to a trial.
“THE COURT: So you understand all of the rights that I’ve gone over with you
regarding the right to have a trial; is that right?
THE DEFENDANT: Yes, Your Honor.
THE COURT: At this time do you wish to give up those rights because you wish
to proceed with the plea of guilty under the negotiation we’ve heard about?
THE COURT: No one has forced you or promised you anything in exchange for
your Waiver of Trial?
THE DEFENDANT: No, sir, Your Honor.
THE COURT: [Defendant], I find that your Waiver is knowingly, intelligently
made and voluntarily given and I accept your Waiver of Trial and I will enter the order
now. ***.”
-5- ¶ 12 Similarly, the “Waiver of Trial” listed the rights defendant was giving up by pleading
guilty. At the top of the one-page form, a handwritten notation read: “Count 4 [AHC]/no life 6-
60.” At the bottom of the form, just above defendant’s signature, the following acknowledgment
appeared in all capital letters:
“I HAVE READ THE ABOVE AND KNOWINGLY, VOLUNTARILY, AND
UNDERSTANDINGLY WAIVE MY RIGHT TO TRIAL, AND STATE THAT,
OTHER THAN IN A PLEA AGREEMENT MADE KNOWN TO THE COURT, NO
PROMISES, THREATS, OR FORCE WERE USED TO OBTAIN THIS WAIVER.”
¶ 13 At the trial court’s request, the State recited the terms of the plea agreement: defendant was
pleading guilty to AHC; it was an “open plea” with a sentencing range of 6 to 60 years in prison,
served at 85%; and the State agreed not to present convictions that would trigger a life sentence.
The State also agreed to nolle pros all other counts in this case as well as all counts in a
misdemeanor domestic battery case pending against defendant. The court asked defendant if this
was his understanding of the plea, and defendant said yes.
¶ 14 The trial court asked defendant if he understood everything that had been discussed, and
defendant again said yes. Defendant confirmed that he was not under the influence of alcohol or
any controlled substance, and that he was not prescribed any controlled substance. Then the court
once again detailed the terms of the plea, and defendant again confirmed that he understood those
terms.
¶ 15 The State then provided a factual basis for the plea. If the case proceeded to trial, the State
would prove that, on September 10, 2017, police responded to an address in Waukegan after shots
were fired and a child was struck with a ricochet. Police obtained a description of the shooter’s
vehicle. Sergeant Fong was in the area at the time and heard the description of the vehicle over his
-6- radio. He saw a vehicle matching the description drive past him with its headlights, even though it
was night. Fong conducted a traffic stop and ordered defendant, the car’s only occupant, to exit.
As soon as defendant exited the car, the police found a gun on the driver’s seat. The gun was sent
to the crime lab and found to be in working condition. The State would also prove that defendant
had prior convictions of attempted armed robbery and unlawful possession of a controlled
substance with intent to deliver. The defense stipulated to the factual basis.
¶ 16 Next, the trial court asked defendant to state for the record if he was pleading guilty to
AHC based on the events of September 10, 2017, and defendant said yes. Before accepting the
plea, the court asked defendant to confirm that he had ample opportunity to confer with plea
counsel, that he did not have any questions, and that he believed the plea agreement was in his best
interests. Defendant agreed, and the court accepted the guilty plea.
¶ 17 Four months later, on August 26, 2022, a sentencing hearing was held, and the trial court
heard arguments in aggravation and mitigation. The State asked for an extended term of 30 to 60
years in prison, served at 85%. In his response, plea counsel stated,
“I don’t want to indicate to the State that their argument is a misrepresentation of what was
said in the 402 conference, but we thought that we had somewhat of a firm agreement and
a firm determination in terms of what we were going through in terms of sentencing.”
Plea counsel went on to argue that no extended term was discussed in the Rule 402 conference,
saying, “Didn’t we have a range at that particular time? I’m looking at a range [now]. I’m not
looking at 60 years.” And later, plea counsel stated that defendant had been convicted of “habitual
criminal offense,” which “carries a sentence between 6 and 30 [years in prison].” Plea counsel
asked for a sentence of less than 10 years.
¶ 18 In response to the parties’ arguments, the trial court stated:
-7- “[A]t the time of the plea, [defendant] was advised that he would plead guilty to the Class
X [AHC] count; and that the State would cap his sentence at 60 years. There was no
[sleight] of hand. That was the negotiation before the plea was entered, that the State would
be arguing between 6 and 60 years.
I find no misrepresentations were made. I think the defendant was most amply
notified of the negotiation. He accepted the negotiation. And he voluntarily entered his
plea.”
The court went on to discuss factors in aggravation and mitigation before sentencing defendant to
24 years in prison.
¶ 19 On September 14, 2022, plea counsel filed a “Motion to Vacate Plea, and Motion to
Reconsider Sentencing.” The motion alleged that, during the Rule 402 conference, plea counsel
argued that defendant was not eligible for a life sentence and that, to resolve the case, defendant
“would plead to a sentence of 9 years at 85%.” The motion went on to allege (1) that “the [c]ourt
after hearing [that offer] concurred and recommended a sentence [of] just more than 13 years ***,
and further stated [sic] to tell the defendant to accept what was recommended”; (2) that “at
sentencing, the [c]ourt sentenced the defendant for 24 years[,] [w]hich was outside of all
agreements and the [c]ourt recommendation”; and (3) that “at the time of [the] [p]lea, the false and
inaccurate recommendation caused the defendant to involuntary plea to the habitual criminal
offense.” Plea counsel filed a facially compliant Rule 604(d) certificate, dated September 9, 2022,
along with the motion. At the hearing on the motion, held September 16, 2022, plea counsel told
the court that he still needed “to order a transcript of [defendant’s] plea.” In response, the court
stated,
-8- “All right, the only concern I have about the 604(d) certificate is you have not yet reviewed
the report of the proceedings, so that’s the purpose of the certificate is that you affirm that
you have done so.
*** [You] [p]robably should file another 604(d) certificate that actually is consistent with
your review of the proceedings.”
The court continued the hearing.
¶ 20 On January 27, 2023, the trial court heard argument on the motion. Plea counsel asserted
that the court had indicated at the Rule 402 conference that defendant would be sentenced in the
range of 13 to 20 years. Plea counsel said he repeated that information to defendant. Because the
court ultimately sentenced defendant outside that range, defendant’s plea was “coerced” and
involuntary. In response, the State argued that plea counsel’s allegations misrepresented what was
said during the Rule 402 conference, that the record clearly established the details of the negotiated
plea, and that all parties agreed in open court as to the details of that plea. The court read aloud
parts of the transcript from the plea hearing, then asked plea counsel whether defendant had not
been advised in open court that the plea had a sentencing range of 6 to 60 years. Plea counsel stated
that, based on discussions during the Rule 402 conference, he “took it on [himself] to believe that
the sentence was going to be much, much less” than 24 years.
¶ 21 The trial court denied the motion to vacate the plea, stating, “There is absolutely nothing
in the record that would suggest either the [c]ourt or any attorney advised the [d]efendant that he
would be looking at a particular term of years.” The court also noted that it had asked defendant
on the record whether anyone had promised him anything beyond the terms of the plea as set out
by the court, and defendant said no.
-9- ¶ 22 The court also denied the motion to reconsider the sentence, noting that factors in
aggravation supported the sentence.
¶ 23 Defendant filed a notice of appeal that same day. Later, defendant filed an “Unopposed
Motion for Summary Vacatur and Remand,” arguing that the record refuted the validity of plea
counsel’s Rule 604(d) certificate because he told the trial court that he filed the certificate before
obtaining the transcript of the plea hearing. The motion also stated that plea counsel never filed a
new Rule 604(d) certificate, despite the trial court advising him that he should. This court granted
the motion, stating:
“The denial of appellant’s Rule 604(d) motion is vacated, and the cause is remanded for
‘(1) the filing of a [valid] 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
(2011).”
On remand, plea counsel withdrew, and the trial court appointed the public defender’s office to
represent defendant (postremand counsel).
¶ 24 Postremand counsel filed a Rule 604(d) certificate dated June 14, 2024, along with an
“Amended Petition for Post-Conviction Relief.” The petition alleged that, following the Rule 402
conference, plea counsel “failed to fully advise [defendant] of the [trial] [c]ourt’s posture and of
the range of outcomes if he were to proceed at a trial or an open plea.” It also alleged that defendant
“did not comprehend the ramifications” of rejecting the initial plea offer, which the State later
withdrew. The petition requested that the trial court vacate the conviction and grant defendant a
new trial. At a subsequent hearing, the court told postremand counsel that filing a postconviction
- 10 - petition did not comply with this court’s remand order. The court continued the case so that counsel
could file a Rule 604(d) motion.
¶ 25 On July 5, 2024, postremand counsel filed a new Rule 604(d) certificate along with an
“Amended Motion to Withdraw Guilty Plea or Reconsider Sentence.” By signing the Rule 604(d)
certificate, postremand counsel certified:
“1. I have consulted with the [d]efendant in person, by mail, by phone or by
electronic means to ascertain the defendant’s contentions of error in the entry of the plea
of guilty and in the sentence;
2. I have examined the trial court file and report of proceedings of the plea of guilty
and the report of proceedings in the sentencing hearing; and
3. I have made any amendments to the motion necessary for the adequate
presentation of any defects in those proceedings.”
The amended motion alleged that, after the Rule 402 conference, defendant had a private
conversation with plea counsel, who advised him that, if he agreed to the plea negotiation, the trial
court “would not sentence him to anything over 13 years” in prison; based on that information,
defendant chose to proceed with the plea, which then resulted in a sentence substantially higher
than 13 years. The motion also alleged that defendant “did not comprehend the ramifications of
rejecting the State’s earlier plea offer due to erroneous and/or incomplete information he received
from counsel.” No affidavit was filed along with the motion.
¶ 26 A hearing on the motion was held on July 12, 2024. Postremand counsel confirmed to the
trial court that he had already reviewed the transcripts from defendant’s guilty plea and the
sentencing hearing. Defendant testified that he agreed to the Rule 402 conference and that plea
counsel spoke to him immediately after the conference. Plea counsel advised him that, if he agreed
- 11 - to the plea, he would be sentenced to no more than 13 years “and that they all had a conversation
regarding that” during the conference. Defendant pleaded guilty and was later sentenced to 24
years in prison. When asked whether there had been a previous plea offer, defendant said there
had been an offer to plead guilty in exchange for a 13-year prison sentence. Postremand counsel
asked, “To your knowledge when was that offer revoked or taken off the table by the State?” and
defendant replied, “At sentencing.” When asked why he did not say anything when the trial court
asked him if anyone promised him anything to get him to sign the trial waiver, defendant said that,
during their meeting after the Rule 402 conference, plea counsel told him not to say anything.
Postremand counsel asked defendant if he would have accepted the 13-year offer had he “been
advised” by plea counsel, and defendant confirmed that he would have.
¶ 27 On cross-examination, the State asked defendant whether he was informed of all possible
penalties when he was arraigned, and defendant said yes. The State then turned to the day of the
guilty plea, and this exchange followed:
“Q. The judge informed you that you could be sentenced up to 60 years in the
Department of Corrections on this plea agreement; correct?
A. Yes, yes.
Q. And you told the judge that you had been made no other promises related to the
plea agreement; correct?
A. Right.
Q. And you would agree to [sic] me that 24 years in the Department of Corrections
falls within the range of 6 to 60 years in the Department of Corrections; correct?
A. Correct.
- 12 - Q. And you were given every opportunity to explain to the judge that you had been
told or promised something else by somebody else; correct?
A. My attorney told me not to say anything.
Q. Did I ever promise anything other than I would argue you were eligible for a
sentence of 6 to 60 years in the Department of Corrections?
A. No, we never had that discussion.
Q. And the judge never told you that there was going to be anything at the
sentencing other than you would be sentenced between 6 and 60 years in the Department
of Corrections; correct?
A. Correct.”
After the cross-examination concluded, postremand counsel told the court that he had no further
questions, and he presented no further evidence.
¶ 28 In his argument in support of the motion, postremand counsel asserted that, although the
record showed that both the trial court and the State advised defendant of the plea terms, defendant
would have understandably put more trust in his own attorney. Therefore,
“when his attorney tells him something that is totally different from what probably is the
truth of what happened in that 402-conference it puts [defendant] in a difficult position of
relying on that and he just didn’t have all the facts that he needed to make a decision, and
[defendant] alleged that that was because of [plea counsel’s] actions.”
Postremand counsel asked the court to grant the motion to withdraw the guilty plea or reconsider
the sentence, “in light of fact of how [sic] the sentence came about after the rejection of an offer
that he would have accepted.” In response, the State argued that the record clearly showed that
defendant was properly advised of the terms of the plea agreement, and he affirmed that he
- 13 - understood those terms. Therefore, defendant accepted the plea agreement “knowingly and
voluntarily.”
¶ 29 The trial court found that the record supported the determination that defendant entered the
plea knowingly and voluntarily. The court reasoned:
“I believe the transcript and record established on that day supported then and
supports today my determination that this defendant understood the possible range of
punishment, the benefit to the defendant to not be subject to a possible sentence of life
imprisonment, his right to a jury trial, his right to a bench trial, the consequences of his
plea, the voluntariness of his plea, and I find the plea was entered knowingly. The plea was
entered voluntarily. I do not find he was coerced, misled or pressured in any way to enter
his plea.
Respectfully, [defendant], I find that you understood all of your rights. It was a
situation you found yourself [sic] to unfortunately pass upon a much more favorable
negotiation, but these things happen as you assert your rights to trial. I find unfortunately
for you today that you found yourself in a situation in which the best possible outcome
[was] to enter an open plea on the date that you pled guilty and today find that you are
simply dissatisfied with the [c]ourt’s sentence.
I do not believe that you passed on each and every opportunity to tell the [c]ourt
that you had some expectation that was not put on the record. I find that not to be credible.
I find that you understood and hoped that the [c]ourt might lessen the sentence that you
received.” (Emphasis added.)
The court denied the motion. Defendant now appeals.
- 14 - ¶ 30 II. ANALYSIS
¶ 31 A. General Principles
¶ 32 At issue in this appeal is whether postremand counsel’s amended Rule 604(d) certificate,
filed on July 5, 2024, failed to comply with the requirements of Rule 604(d). Defendant contends
on appeal that plea counsel misadvised him regarding two plea offers: (1) the State’s 2021 plea
offer for 13 years in prison, which was revoked because defendant did not accept it by October 4,
2021, and (2) the plea offer for a sentence between 6 and 60 years, which defendant accepted
following the Rule 402 conference held on April 18, 2022. In response, the State argues that
defendant did not raise a claim of error regarding the 2021 plea offer. The State further argues that
“defendant had a full and fair hearing on the single issue he wished to raise in his postplea motion,”
namely plea counsel’s advice regarding the 2022 plea offer, “and the record demonstrates that
reconsideration of that issue would be a futile exercise.” Thus, according to the State, a second
remand is not required. We review de novo whether defense counsel has complied with Rule
604(d). People v. Brown, 2024 IL 129585, ¶ 48.
¶ 33 “Rule 604(d) governs the procedure to be followed when a defendant wishes to appeal from
a judgment entered upon a guilty plea.” Id. ¶ 47. One of the fundamental requirements under Rule
604(d) is that “[t]he motion shall be in writing and shall state the grounds therefor.” Ill. S. Ct. R.
604(d) (eff. Apr. 15, 2024). In addition, “[w]hen the motion is based on facts that do not appear of
record it shall be supported by affidavit.” Id. Rule 604(d) also imposes a certification requirement
on the defendant’s attorney. Counsel must certify, among other things, that he or she “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.
- 15 - ¶ 34 “The filing of a Rule 604(d) certificate allows the circuit court to ensure counsel has
reviewed the defendant’s claim and considered all relevant bases for moving to withdraw the guilty
plea or to reconsider the sentence.” Brown, 2024 IL 129585, ¶ 47. “The attorney certificate thereby
encourages the preservation of a clear record, both in the trial court and on appeal, of the reasons
why a defendant is moving to withdraw his plea or to reduce sentence.” People v. Shirley, 181 Ill.
2d 359, 361 (1998). And compliance with the motion requirement “permits the trial judge who
accepted the plea and imposed sentence to consider any allegations of impropriety that took place
dehors the record and correct any error that may have led to the guilty plea.” (Emphasis added.)
Id.
¶ 35 It is well established that the certificate must strictly comply with the requirements of Rule
604(d). See People v. Janes, 158 Ill. 2d 27, 35 (1994). Even when a 604(d) certificate is valid on
its face, the reviewing court “may consult the record to determine whether [counsel] actually
fulfilled [the] obligations under Rule 604(d),” i.e., whether the record confirms or refutes the
certificate. People v. Bridges, 2017 IL App (2d) 150718, ¶ 8. “Counsel’s failure to strictly comply
with the rule ‘requires “a remand to the circuit court for the filing of a new motion to withdraw
guilty plea or to reconsider sentence and a new hearing on the motion.” ’ ” Brown, 2024 IL 129585,
¶ 48 (quoting People v. Gorss, 2022 IL 126464, ¶ 19, quoting Janes, 158 Ill. 2d at 33). However,
multiple remands are not always necessary. See Shirley, 181 Ill. 2d at 369. As our supreme court
has explained,
“The point of Rule 604(d) is to ‘ “protect the defendant’s interests through adequate
consultation. The certificate serves as evidence that the requisite consultation has taken
place.” ’ [Citation.] This court has rejected arguments that the strict compliance standard
of Rule 604(d) ‘must be applied so mechanically as to require Illinois courts to grant
- 16 - multiple remands and new hearings following the initial remand hearing.’ [Citation.]
Where a defendant has been ‘afforded a full and fair second opportunity to present a motion
for reduced sentencing,’ there is ‘limited value in requiring a repeat of the exercise, absent
a good reason to do so.’ [Citation.]” Brown, 2024 IL 129585, ¶ 53.
Here, even if postremand counsel failed to strictly comply with the requirements of Rule 604(d),
a second remand is not required if defendant was afforded a full and fair opportunity to present his
amended motion to vacate his guilty plea. “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. Brown, 2023 IL App (4th) 220573, ¶ 50. “[I]t would be an exercise in futility and a waste
of judicial resources to remand for an attorney to replead a claim that has already been adjudicated
meritless.” Id.
¶ 36 B. 2021 Plea Offer
¶ 37 First, we consider whether defendant wished to raise a claim that plea counsel misadvised
him regarding the State’s plea offer in 2021. The State asserts that “[postremand counsel’s]
amended Rule 604(d) motion did not raise this claim at all, and defendant’s own testimony shows
that he did not want to raise it.” In reply, defendant argues that “the plain language of the amended
motion explicitly suggests otherwise,” pointing to paragraph five of the motion filed July 5, 2024.
The full text of paragraph five reads: “The [d]efendant did not comprehend the ramifications of
rejecting the State’s earlier plea offer due to erroneous and/or incomplete information he received
from counsel.” Defendant also points to testimony he gave during the hearing on the amended
motion. In response to the question on direct examination, “[I]s it your contention that you
you [sic] would have accepted the 13-year offer had you been advised by [plea counsel]?”
- 17 - Defendant replied, “Correct.” We agree with defendant that both the amended motion and the
transcript of the hearing on the amended motion support the contention that defendant wished to
raise a claim of ineffective assistance of counsel with respect to the lapsed 2021 plea offer. We
turn next to whether postremand counsel complied with Rule 604(d)’s certification requirement
with respect to that claim of ineffectiveness.
¶ 38 Defendant argues that postremand counsel did not amend the Rule 604(d) motion to
adequately present a claim alleging that plea counsel provided erroneous or incomplete advice to
defendant during the 2021 plea negotiations. We agree. As this court explained in People v.
Gallardo, 2024 IL App (2d) 230289, ¶ 22:
“A defendant has a constitutional right to elect what plea to enter [citation] and to
be reasonably informed as to the direct consequences of accepting or rejecting a plea offer
[citation]. Counsel’s performance is deficient if counsel fails to ensure that a defendant
accepts or rejects a plea voluntarily and intelligently. [Citation.] To establish prejudice
where a plea offer was rejected because of counsel’s deficient performance, a defendant
must demonstrate a reasonable probability that he would have accepted the plea offer
absent his attorney’s deficient advice. [Citation.] Such demonstration must include more
than a defendant’s own subjective, self-serving assertions. [Citation.] Instead, there must
be ‘ “independent, objective confirmation that [the] defendant’s rejection of the proffered
plea was based upon counsel’s erroneous advice,” and not on other considerations.’
[Citation.] Additionally, a defendant must demonstrate a reasonable probability that the
plea would have been entered without the prosecution withdrawing it or the trial court
refusing to accept it. [Citation.] ‘The disparity between the sentence a defendant faced and
- 18 - a significantly shorter plea offer can be considered supportive of a defendant’s claim of
prejudice.’ [Citation.]”
¶ 39 Here, although the amended motion to withdraw the guilty plea asserts that defendant
received “erroneous and/or incomplete information *** from [plea counsel]” regarding the 2021
plea offer, and defendant testified at the hearing that he would have accepted the plea offer if he
had “been advised” by plea counsel, the amended motion failed to allege the elements of a claim
of ineffective assistance of counsel, and no affidavit was filed to supply facts that do not appear in
the record. In fact, postremand counsel presented nothing beyond defendant’s “subjective, self-
serving assertions,” which, alone, cannot support such a claim. See id. Furthermore, the record
sheds no light on why the 2021 plea offer was not accepted. It reveals only that defendant was
informed at a hearing on September 1, 2021, that the 13-year plea offer would be revoked on
October 4, 2021, and that, at a hearing held on October 4, 2021, with defendant present, plea
counsel stated,
“Your Honor, if I may. [The State] gave me an offer in this matter, and in terms of the
offer, the statute keeps on changing so the offer that they gave me doesn’t reflect the statute,
what the statute is. *** I’m going to try to address that with the [State] to see if I can
¶ 40 Plea counsel’s statement seems to suggest that—at a hearing held on the last day before
the offer was revoked—plea counsel had still neither accepted nor rejected the offer, and that he
intended to resolve the case through a plea rather than by going to trial, where defendant would
have been exposed to the risk of a mandatory life sentence. Then, at a case management hearing
held on December 1, 2021, when defendant was not present, the court asked, “Where are we at
with case management?” and plea counsel replied, “I gave the State a good offer to try to resolve
- 19 - this case. He rejected it, [Y]our Honor. That’s the last time I talked to the State.” Thus, the amended
Rule 604(d) motion insinuates the ineffective assistance of counsel regarding the 2021 plea, yet it
provides no facts or argument to support such a claim. Nor was the claim developed at the motion
hearing. Postremand counsel mentioned only in passing that defendant’s “sentence came about
after the rejection of an offer that he would have accepted.” Because the trial court did not—and
indeed could not meaningfully—consider the merits of an ineffectiveness claim concerning the
2021 plea offer, we conclude that defendant was not afforded a full and fair opportunity to present
the claim. Therefore, we must remand for compliance with Rule 604(d) regarding this claim.
¶ 41 C. 2022 Plea Agreement
¶ 42 Defendant next argues that postremand counsel did not amend the Rule 604(d) motion to
adequately present the claim that, after the Rule 402 conference, plea counsel provided erroneous
advice, on which defendant relied when he pleaded guilty. The amended motion alleged that plea
counsel informed defendant “that if he were to proceed to a sentencing hearing, the [c]ourt would
not sentence him to anything over 13 years in [the] IDOC.” The State concedes that “[postremand
counsel] did not allege certain facts necessary to establish that [plea counsel’s] alleged deficiency
in advising [defendant] after the Rule 402 conference prejudiced defendant or file an affidavit from
defendant supporting such allegations.” However, the State argues that “a second remand to correct
these defects is unnecessary because defendant was afforded a full and fair opportunity to present
this claim,” and that the claim “was refuted by the court’s clear admonishments and defendant’s
statements on the record.” We agree with the State.
¶ 43 During the hearing on the amended Rule 604(d) motion, the trial court heard defendant’s
testimony and postremand counsel’s arguments. The court reviewed the transcript of the plea
hearing and gave a detailed basis for its ruling. The court found that the record supported the
- 20 - determination that defendant entered the plea knowingly and voluntarily. The court “[did] not find
[defendant] was coerced, misled or pressured in any way to enter his plea.” The court concluded
that defendant found himself “in a situation in which the best possible outcome [was] to enter an
open plea on the date that [he] pled guilty,” and he later found himself “simply dissatisfied with
the [c]ourt’s sentence.” The court went on to state, “I do not believe that you passed on each and
every opportunity to tell the [c]ourt that you had some expectation that was not put on the record.
I find that not to be credible.”
¶ 44 We find that the trial court gave defendant a full and fair hearing on this claim and
concluded that it was meritless. Even though postremand counsel failed to present legal argument
or evidence (beyond defendant’s own testimony) to support a claim of ineffective assistance of
counsel, such a claim is refuted by the record. Defendant cannot credibly assert that he was
prejudiced by plea counsel’s ineffectiveness on the day he pleaded guilty because—regardless of
what was said during defendant’s private consultation with plea counsel—the court subsequently
explained the plea offer multiple times on the record, defendant affirmed on the record that he
understood the offer, and defendant also affirmed that plea counsel presented the same terms that
the court presented. “It is well settled that a defendant must alert the court at the guilty plea
proceeding if his decision to plead guilty was influenced by something counsel told him that
differed from the terms of the plea as described in court.” People v. Diaz, 2021 IL App (2d)
191040, ¶ 24. Because this claim has already been adjudicated meritless, “it would be an exercise
in futility and a waste of judicial resources” to require an attorney to replead it. See Brown, 2023
IL App (4th) 220573, ¶ 50.
¶ 45 III. CONCLUSION
- 21 - ¶ 46 For the foregoing reasons, with respect to defendant’s apparent claim of ineffective
assistance of counsel regarding the 2021 plea offer, we vacate the denial of defendant’s motion to
withdraw his plea and remand the cause to the circuit court of Lake County for: (1) the filing of a
[valid] Rule 604(d) certificate; (2) the filing of a new Rule 604(d) motion that adequately presents
the claim that plea counsel provided erroneous or incomplete advice to defendant during the 2021
plea negotiations; and (3) a new motion hearing. See generally Lindsay, 239 Ill. 2d at 531. In all
other respects, including the trial court’s conclusions regarding the 2022 plea agreement, the
judgment is affirmed.
¶ 47 Affirmed in part; vacated in part and remanded.
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