People v. Taylor

2023 IL App (1st) 171631, 218 N.E.3d 465, 467 Ill. Dec. 130

Opinion

2023 IL App (1st) 171631 No. 1-17-1631

FIRST DIVISION March 20, 2023 ____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ____________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 11 CR 19367 ) DAVID TAYLOR, ) ) The Honorable Defendant-Appellant. ) Alfredo Maldonado, ) Judge Presiding.

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JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justices Lavin and Coghlan concurred in the judgment and opinion.

OPINION

¶1 After he entered a negotiated guilty plea to two counts of attempted murder, the trial court

sentenced defendant to two concurrent sentences of 31 years’ imprisonment. Subsequently,

defendant filed a pro se motion to withdraw his guilty plea. His postplea counsel filed a certificate

pursuant to Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016). Defendant now challenges

whether his postplea counsel’s certification complied with Rule 604(d). We reverse and remand

for further proceedings.

¶2 BACKGROUND 1-17-1631

¶3 Defendant David Taylor was charged with multiple counts of attempted murder, armed

robbery, attempted armed robbery, and aggravated battery for shooting Oben Pilado and his father,

Jose Pilado, in September 2011. On May 6, 2014, defendant agreed to plead guilty to two counts

of attempted murder in exchange for a negotiated sentence of two concurrent sentences of 31 years’

imprisonment.

¶4 On June 17, 2014, defendant filed a timely pro se motion to withdraw his guilty plea,

arguing that his attorneys falsely informed him that, if he did not plead guilty, he would spend the

rest of his life in prison and could not appeal and that his guilty plea, consequently, was

involuntary. The trial court heard arguments from counsel and defendant regarding this motion but

failed to appoint new counsel to represent defendant. Defendant appealed the failure to appoint

new counsel, and we summarily remanded the case in March 2016 to comply with Illinois Supreme

Court Rule 401(a) (eff. July 1, 1984) and Rule 604(d) (eff. Mar. 8, 2016).

¶5 Upon remand, the trial court appointed an attorney from the public defender’s office, who

filed a certificate in September 2016 averring that he had complied with Rule 604(d). In December

2016, a different attorney from the public defender’s office took over defendant’s case.

¶6 Then, in March 2017, the new counsel filed a superseding Rule 604(d) certificate averring

that he had (1) consulted with defendant by mail and in person about his contentions of error

concerning his guilty plea, (2) examined the trial court file and transcripts of the plea hearing, and

(3) declined to amend defendant’s pro se motion to withdraw his plea because it adequately stated

defendant’s grounds for relief. On March 22, 2017, at a status hearing, the new public defender

stated that he was aware that prior counsel had filed a certificate but that his superseding certificate

followed his “own assessment” of defendant’s case.

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¶7 On June 14, 2017, the court held a hearing on defendant’s motion. Defendant’s new public

defender represented to the trial court that defendant was proceeding on his contention that his trial

counsel lied to him and told him that he could not appeal if he was convicted and that he would

spend the rest of his life in prison. Defendant testified in support of his contention. The State

presented the testimony of Assistant Public Defenders Wendy Steiner and Kyan Keenan,

defendant’s trial counsel. Both attorneys denied telling defendant that he could not appeal from a

jury verdict and that, if he were found guilty by a jury, he would spend the rest of his life in prison.

¶8 The trial court denied defendant’s motion, finding that Assistant Public Defender Steiner

credibly testified that she had explained defendant’s right to appeal and had not told him that he

could not exercise those rights if found guilty by a jury. The trial court also found Assistant Public

Defender Keenan credible in all respects and determined that neither counsel had threatened or

coerced defendant’s plea. The trial court found that defendant’s recollection of his meetings with

counsel, in which he testified his attorneys told him that he could not appeal a jury verdict and

that he would lose his case, was not credible.

¶9 ANALYSIS

¶ 10 Defendant argues that his postplea counsel’s Rule 604(d) certification did not strictly

comply with the rule because it failed to state that counsel had consulted with defendant about his

contentions of error in his sentence and that he reviewed the report of proceedings for his

sentencing hearing. In response, the State argues that his counsel’s certification complied in all

respects with Rule 604(d) and that counsel was not obligated to certify that he had consulted with

defendant on sentencing issues where defendant’s fully negotiated plea barred counsel from raising

sentencing issues as a basis for withdrawing the plea.

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

a judgment entered upon a guilty plea.” (Internal quotation marks omitted.) People v. Curtis, 2021

IL App (4th) 190658, ¶ 29. The rule provides, in pertinent part, as follows:

“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 in writing and shall state the grounds

therefor. *** 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. Mar. 8, 2016).

¶ 12 It is well established that counsel must strictly comply with the certificate requirements of

Rule 604(d). See People v. Gorss, 2022 IL 126464, ¶ 19; People v. Janes, 158 Ill. 2d 27, 33 (1994).

However, “[t]he certificate need not recite word for word the verbiage of the rule.” People v. Wyatt,

305 Ill. App. 3d 291, 297 (1999). If counsel does not comply, we must remand the matter to the

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trial court “for the filing of a new Rule 604(d) certificate, for the filing of a new motion to withdraw

guilty plea or to reconsider sentence, and for a new hearing on the motion.” See Gorss, 2022 IL

126464, ¶ 31. “Whether counsel complied with Rule 604(d) is a legal question that we review

de novo.” Id. ¶ 10.

¶ 13 Before 2015, Rule 604(d) instructed that, when a pro se defendant filed a motion to

withdraw his guilty plea and before proceedings on the motion could commence, counsel must, in

pertinent part, “ascertain defendant’s contentions of error in the sentence or the entry of the plea

of guilty” (Emphasis added.) Ill. S. Ct. R. 604(d) (eff. Dec. 11, 2014).

¶ 14 The language of the rule changed after our supreme court interpreted this particular clause

in People v. Tousignant, 2014 IL 115329. While the State argued that the use of the word “or” was

disjunctive and meant that an attorney did not need to certify consultation about both the sentence

and the plea, the supreme court disagreed. Id. ¶ 11. The supreme court found that the purpose of

the rule was “to enable the trial court to ensure that counsel has reviewed the defendant’s claim

and considered all relevant bases for the motion to withdraw the guilty plea or to reconsider the

sentence.” (Emphasis in original.) Id. ¶ 16. This would enable the trial court to correct possible

errors at an earlier opportunity. Id. ¶ 19. The court determined that the word “or” should be read

as “and,” requiring attorneys to certify consultation about both the guilty plea and the sentence. Id.

¶ 20.

¶ 15 After Tousignant, the supreme court amended Rule 604(d), effective December 3, 2015, to

read that counsel must consult with the defendant regarding the “contentions of error in the

sentence and the entry of the plea of guilty.” Ill. S. Ct. R. 604(d) (eff. Dec. 3, 2015).

¶ 16 Here, postplea counsel certified that he consulted with defendant about errors in the guilty

plea and reviewed the report of proceedings of the plea of guilty, but he did not certify that he

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consulted with defendant about alleged errors in his sentence or examined the report of proceedings

of the sentencing hearing. The State argues that remand is not necessary where the certificate filed

by postplea counsel contained all relevant information mandated for inclusion by that rule in fully

negotiated plea cases.

¶ 17 We find that postplea counsel did not comply with the certification requirements pursuant

to Rule 604(d). Our supreme court has determined that compliance with Rule 604(d) requires that

postplea counsel certify that he consulted with a defendant regarding his contentions of error both

in the entry of his plea and also in his sentence. Gorss, 2022 IL 126464, ¶ 26. In Gorss, our supreme

court addressed whether postplea counsel strictly complied with Rule 604(d) where the counsel

did not certify that he consulted with the defendant to ascertain his contentions of error with the

entry of the plea of guilty. The defendant entered an open plea of guilty to aggravated DUI and

was sentenced to 11 years’ imprisonment. Id. ¶ 4. On appeal, the supreme court held, “The

language of the rule is clear—counsel must certify that a consultation to ascertain the defendant’s

contentions of error as to both the sentence and entry of the guilty plea took place. This is to ensure

that the defendant’s interests are protected.” Id. ¶ 26 (citing People v. Easton, 2018 IL 122187,

¶ 32). “[W]here the language used [in a statute] is plain and unambiguous, [a reviewing court] may

not ‘depart from its terms’ or read into the rule exceptions, limitations, or conditions that conflict

with the drafters’ intent.” Id. ¶ 10 (citing Acme Markets, Inc. v. Callanan, 236 Ill. 2d 29, 38

(2009)).

¶ 18 We recognize that the defendant in Gorss entered an open plea of guilty, as opposed to

defendant in the instant case who entered a negotiated plea of guilty. In People v. Gillespie, 2017

IL App (1st) 152351, however, we addressed the factual situation present in the instant case. In

Gillespie, the defendant pled guilty pursuant to a negotiated plea and later moved to withdraw his

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plea. Counsel filed a Rule 604(d) certificate, stating, in relevant part, that he consulted with the

defendant about his contentions of error in the entry of the guilty plea. Id. ¶ 1. Following a hearing,

the trial court denied the motion to withdraw. Id. ¶ 4.

¶ 19 On appeal, we held that former Rule 604(d), which Tousignant had explained required

postplea counsel to certify counsel consulted with a defendant regarding contentions of error in

the entry of plea and sentence, along with the other requirements, applies equally to both open and

negotiated pleas. Id. ¶ 12. Relying on People v. Martell, 2015 IL App (2d) 141202, ¶ 9, which

rejected the proposition that Tousignant applied only to open pleas, we found “Tousignant and the

rule’s language are not limited to open pleas, and if our supreme court intends that it be so limited,

it will say so explicitly.” Gillespie, 2017 IL App (1st) 152351, ¶ 12. We also noted the rule’s

purpose, which was an attorney’s duty to consult with his or her client, regardless of whether the

consultation affects the content of the motion. Id. Regarding the State’s contention that if the plea

is negotiated, counsel will not be able to challenge the sentence through a written motion, we

recognized that Rule 604(d) “focuses on the attorney’s duty to consult with his or her client, and

that consultation has value even if it does not ultimately affect the content of the motion” and there

still exists a “concern that a fully negotiated plea might include an improper sentence is real.” Id.;

see Martell, 2015 IL App (2d) 141202, ¶ 9.

¶ 20 In addressing the State’s argument, neither party pointed to cases in which the Third

District found that postplea counsel’s failure to certify that he examined the report of proceedings

of the sentencing hearing does not render the Rule 604(d) certificate noncompliant. See People v.

Stefanski, 2019 IL App (3d) 160140, ¶¶ 22-25; People v. Jackson, 2018 IL App (3d) 170125, ¶ 49.

In both cases, the reviewing courts found that, because the defendant entered into a negotiated plea

of guilty, there was no sentencing hearing and, instead, the trial court accepted the defendant’s

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guilty plea and sentenced him to the agreed-upon sentence. Stefanski, 2019 IL App (3d) 160140,

¶ 23; Jackson, 2018 IL App (3d) 170125, ¶ 49. “Thus, by certifying that she had reviewed the

report of proceedings of the plea of guilty, counsel also certified that she had reviewed the

transcript of the court’s discussion of defendant’s sentence.” Jackson, 2018 IL App (3d) 170125,

¶ 49. However, the facts in the instant case are distinguishable where postplea counsel not only

failed to certify that she examined the report of the proceedings of the sentencing hearing, but

counsel also failed to certify that she consulted with defendant to ascertain defendant’s contentions

of error as to his sentence.

¶ 21 Accordingly, we follow Gillespie and reject the State’s argument that the Rule 604(d)

requirement that postplea counsel certify that counsel consulted with the defendant regarding the

entry of the plea of guilty and sentence applies only to open pleas. Postplea counsel did not file a

substantively compliant certificate. A second remand to the trial court for de novo postplea

proceedings and compliance with Rule 604(d) is thus necessary. See People v. Hagerstrom, 2016

IL App (3d) 140559, ¶ 13 (finding that a second remand for compliance with Rule 604(d)

admonishments is permissible).

¶ 22 CONCLUSION

¶ 23 We vacate the trial court’s judgment denying defendant’s motion to withdraw his guilty

plea and remand for (1) the filing of a new postplea motion (if defendant so wishes), (2) a new

hearing on defendant’s postplea motion, and (3) compliance with the requirements of Rule 604(d).

¶ 24 Vacated and remanded.

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People v. Taylor, 2023 IL App (1st) 171631

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 11-CR- 19367; the Hon. Alfredo Maldonado, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, Manuel S. Serritos, and Linda for Olthoff, of State Appellate Defender’s Office, of Chicago, for Appellant: appellant.

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Douglas P. Harvath, Janet C. Mahoney, and David H. Appellee: Iskowich, Assistant State’s Attorneys, of counsel), for the People.

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