2021 IL App (2d) 180732-U No. 2-18-0732 Order filed January 8, 2021
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 ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 15-CF-2038 ) DERRICK ORR, ) Honorable ) John J. Kinsella, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court. Presiding Justice Bridges and Justice Zenoff concurred in the judgment.
ORDER
¶1 Held: Cause was remanded for postplea counsel to comply with Rule 604(d). While it was suggested at points that defendant wished to proceed pro se on his motion to withdraw, he never formally waived counsel. Therefore, postplea counsel retained her obligation to comply with Rule 604(d).
¶2 Defendant, Derrick Orr, appeals from his conviction of retail theft (720 ILCS 5/16-25(a)(1)
(West 2014)) entered upon his negotiated guilty plea. Defendant complains of error during the
hearing on his motion to withdraw his plea. We vacate the trial court’s denial of defendant’s motion
to withdraw and remand for further proceedings.
¶3 I. BACKGROUND 2021 IL App (2d) 180732-U
¶4 Defendant entered his plea on June 4, 2018. Pursuant to his agreement with the State, he
was sentenced to a one-year prison term. Defendant subsequently filed, by mail, a motion to
withdraw his plea. He argued, inter alia, that he was unfit when he entered his plea because he had
taken himself off psychotropic medication. He alleged that he told his attorney, Deputy Chief
Public Defender Ruth Walstra, about his concern that he was unfit. The motion was file-stamped
July 10, 2018. However, there were two postage meter labels on the envelope; one was dated June
22, 2018, and the other was dated June 27, 2018.
¶5 On July 24, 2018, the prosecutor appeared before the trial court and asked that the motion
be stricken because it was not filed within 30 days after defendant’s sentence was imposed.
Although the trial court stated that the motion was untimely, the court reappointed Walstra to “give
her a chance to take a look at it if she wishes just to address any errors that may have occurred.”
Walstra appeared in court on August 6, 2018, and argued that the motion was timely because it
was “postmarked” June 27, 2018. The court agreed and asked Walstra if she was “prepared to go
to hearing on [the motion] now.” Walstra responded that she was not; she needed to order the
transcript of the plea and sentencing proceedings and file a certificate of compliance with Illinois
Supreme Court Rule 604(d) (eff. July 1, 2017). The court continued the matter to September 10,
2018 for a hearing on the motion.
¶6 At the hearing, Walstra advised the court that defendant had indicated that “his basis to try
to withdraw his plea is his claim that he is unfit.” Walstra related that she told defendant that he
was not unfit and that the claim of unfitness was not a basis for withdrawing his plea. Walstra
added that she did not believe that there was a bona fide doubt as to defendant’s fitness and that
she could not present the motion. Walstra further advised the court, “I believe [defendant] is trying
-2- 2021 IL App (2d) 180732-U
to go, in essence, pro se because I don't believe there is a bona fide doubt as to his fitness in the
three years that I have been dealing with him.”
¶7 The trial court stated that defendant’s argument that he was unfit to enter a plea “indirectly
suggests ineffective assistance of counsel.” The court indicated that, pursuant to People v. Krankel,
182 Ill. 2d 181 (1984), it would allow defendant “to articulate how it is that he feels that his plea
was not entered knowingly and voluntarily because that is sort of the implication.” Defendant
explained that he had stopped taking psychotropic medication and was having withdrawal
symptoms including hallucinations and suicidal thoughts. Walstra advised the court that, on the
day defendant entered his plea, he said nothing “about having hallucinations, about having
anything.” The trial court found that defendant was not unfit when he entered his plea and that he
received the effective assistance of counsel. The court denied defendant’s motion to withdraw his
plea and this appeal followed.
¶8 II. ANALYSIS
¶9 Defendant argues that the proceedings below did not conform to Illinois Supreme Court
Rule 604(d) (eff. July 1, 2017). Defendant also argues that the trial court erred by conducting an
inquiry pursuant to Krankel and its progeny to determine whether a new attorney should have been
appointed to represent him in connection with his postplea motion. See People v. Winston, 2020
IL App (2d) 180289, ¶ 20. We conclude that the proceedings below were not conducted in
compliance with Rule 604(d) (eff. July 1, 2017) and that, therefore, this appeal is not properly
before us. Accordingly, we need not consider whether the trial court erred by conducting a Krankel
inquiry.
¶ 10 Rule 604(d) provides, in pertinent part, as follows:
-3- 2021 IL App (2d) 180732-U
“No appeal from a judgment entered upon a plea of guilty shall be taken unless the
defendant, within 30 days of the date on which sentence is imposed, files in the trial court
a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea
is being challenged, a motion to withdraw the plea of guilty and vacate the judgment.
***
*** The motion shall be presented promptly to the trial judge by whom the defendant was
sentenced[.] *** The trial court shall then determine whether the defendant is represented
by counsel, and if the defendant is indigent and desires counsel, the trial court shall appoint
counsel.
*** The defendant’s attorney shall 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).
¶ 11 It is well established that the attorney’s certificate must strictly comply with the
requirements of Rule 604(d). See People v. Janes, 158 Ill. 2d 27, 35 (1994). If the certificate does
not satisfy this standard, a reviewing court must remand the case to the trial court for proceedings
that strictly comply with Rule 604(d). See id. Here, counsel did not file a Rule 604(d) certificate.
¶ 12 The State argues that “it is apparent from the record that, although the Public Defender was
initially appointed to review defendant’s post-plea motion, the trial court, *** Walstra, and
defendant all understood that defendant was proceeding pro se on his motion to vacate his guilty
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2021 IL App (2d) 180732-U No. 2-18-0732 Order filed January 8, 2021
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 ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 15-CF-2038 ) DERRICK ORR, ) Honorable ) John J. Kinsella, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court. Presiding Justice Bridges and Justice Zenoff concurred in the judgment.
ORDER
¶1 Held: Cause was remanded for postplea counsel to comply with Rule 604(d). While it was suggested at points that defendant wished to proceed pro se on his motion to withdraw, he never formally waived counsel. Therefore, postplea counsel retained her obligation to comply with Rule 604(d).
¶2 Defendant, Derrick Orr, appeals from his conviction of retail theft (720 ILCS 5/16-25(a)(1)
(West 2014)) entered upon his negotiated guilty plea. Defendant complains of error during the
hearing on his motion to withdraw his plea. We vacate the trial court’s denial of defendant’s motion
to withdraw and remand for further proceedings.
¶3 I. BACKGROUND 2021 IL App (2d) 180732-U
¶4 Defendant entered his plea on June 4, 2018. Pursuant to his agreement with the State, he
was sentenced to a one-year prison term. Defendant subsequently filed, by mail, a motion to
withdraw his plea. He argued, inter alia, that he was unfit when he entered his plea because he had
taken himself off psychotropic medication. He alleged that he told his attorney, Deputy Chief
Public Defender Ruth Walstra, about his concern that he was unfit. The motion was file-stamped
July 10, 2018. However, there were two postage meter labels on the envelope; one was dated June
22, 2018, and the other was dated June 27, 2018.
¶5 On July 24, 2018, the prosecutor appeared before the trial court and asked that the motion
be stricken because it was not filed within 30 days after defendant’s sentence was imposed.
Although the trial court stated that the motion was untimely, the court reappointed Walstra to “give
her a chance to take a look at it if she wishes just to address any errors that may have occurred.”
Walstra appeared in court on August 6, 2018, and argued that the motion was timely because it
was “postmarked” June 27, 2018. The court agreed and asked Walstra if she was “prepared to go
to hearing on [the motion] now.” Walstra responded that she was not; she needed to order the
transcript of the plea and sentencing proceedings and file a certificate of compliance with Illinois
Supreme Court Rule 604(d) (eff. July 1, 2017). The court continued the matter to September 10,
2018 for a hearing on the motion.
¶6 At the hearing, Walstra advised the court that defendant had indicated that “his basis to try
to withdraw his plea is his claim that he is unfit.” Walstra related that she told defendant that he
was not unfit and that the claim of unfitness was not a basis for withdrawing his plea. Walstra
added that she did not believe that there was a bona fide doubt as to defendant’s fitness and that
she could not present the motion. Walstra further advised the court, “I believe [defendant] is trying
-2- 2021 IL App (2d) 180732-U
to go, in essence, pro se because I don't believe there is a bona fide doubt as to his fitness in the
three years that I have been dealing with him.”
¶7 The trial court stated that defendant’s argument that he was unfit to enter a plea “indirectly
suggests ineffective assistance of counsel.” The court indicated that, pursuant to People v. Krankel,
182 Ill. 2d 181 (1984), it would allow defendant “to articulate how it is that he feels that his plea
was not entered knowingly and voluntarily because that is sort of the implication.” Defendant
explained that he had stopped taking psychotropic medication and was having withdrawal
symptoms including hallucinations and suicidal thoughts. Walstra advised the court that, on the
day defendant entered his plea, he said nothing “about having hallucinations, about having
anything.” The trial court found that defendant was not unfit when he entered his plea and that he
received the effective assistance of counsel. The court denied defendant’s motion to withdraw his
plea and this appeal followed.
¶8 II. ANALYSIS
¶9 Defendant argues that the proceedings below did not conform to Illinois Supreme Court
Rule 604(d) (eff. July 1, 2017). Defendant also argues that the trial court erred by conducting an
inquiry pursuant to Krankel and its progeny to determine whether a new attorney should have been
appointed to represent him in connection with his postplea motion. See People v. Winston, 2020
IL App (2d) 180289, ¶ 20. We conclude that the proceedings below were not conducted in
compliance with Rule 604(d) (eff. July 1, 2017) and that, therefore, this appeal is not properly
before us. Accordingly, we need not consider whether the trial court erred by conducting a Krankel
inquiry.
¶ 10 Rule 604(d) provides, in pertinent part, as follows:
-3- 2021 IL App (2d) 180732-U
“No appeal from a judgment entered upon a plea of guilty shall be taken unless the
defendant, within 30 days of the date on which sentence is imposed, files in the trial court
a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea
is being challenged, a motion to withdraw the plea of guilty and vacate the judgment.
***
*** The motion shall be presented promptly to the trial judge by whom the defendant was
sentenced[.] *** The trial court shall then determine whether the defendant is represented
by counsel, and if the defendant is indigent and desires counsel, the trial court shall appoint
counsel.
*** The defendant’s attorney shall 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).
¶ 11 It is well established that the attorney’s certificate must strictly comply with the
requirements of Rule 604(d). See People v. Janes, 158 Ill. 2d 27, 35 (1994). If the certificate does
not satisfy this standard, a reviewing court must remand the case to the trial court for proceedings
that strictly comply with Rule 604(d). See id. Here, counsel did not file a Rule 604(d) certificate.
¶ 12 The State argues that “it is apparent from the record that, although the Public Defender was
initially appointed to review defendant’s post-plea motion, the trial court, *** Walstra, and
defendant all understood that defendant was proceeding pro se on his motion to vacate his guilty
-4- 2021 IL App (2d) 180732-U
plea on September 10, 2018.” The argument is meritless. Defendant’s motion postplea motion was
filed on July 10, 2018. On July 24, 2018, the trial court entered a written order appointing the
public defender to represent defendant. The written order did not express any limitation on the
scope of the public defender’s representation. Walstra appeared in court on August 6, 2018. After
Walstra responded to concerns about the timeliness of the motion, the trial court continued the
matter for a hearing on the motion. It was at that hearing that Walstra explained to the court that
she did not believe that there was any basis for defendant to withdraw his plea. Walstra stated “I
believe he is trying to go, in essence, pro se.” The State contends that, “[a]t no time after ***
Walstra’s explanation did defendant indicate that he did not wish to proceed pro se nor did he
request different counsel.” The argument is unavailing. Before allowing a defendant for whom
counsel has been appointed to proceed pro se on a postplea motion, the trial court must ensure that
the defendant knowingly and voluntarily waived the right to counsel under Rule 604(d). People v.
Ledbetter, 174 Ill. App. 3d 234, 238 (1988). That did not occur here. Thus, defendant was entitled
to representation by an attorney who complied with Rule 604(d). Because defendant’s attorney
failed to comply with that rule, the case must be remanded for further proceedings.
¶ 13 III. CONCLUSION
¶ 14 For the foregoing reasons, we vacate the denial of defendant’s postplea motion and remand
the case for proceedings in full compliance with Rule 604(d).
¶ 15 Vacated and remanded.
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