People v. Jordan ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Jordan, 2013 IL App (2d) 120106
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JIMMIE R. JORDAN, Defendant-Appellant.–THE PEOPLE OF THE
STATE OF ILLINOIS, Plaintiff-Appellee, v. JIMMIE R. JORDAN,
Defendant-Appellant.
District & No. Second District
Docket Nos. 2-12-0106, 2-12-0108 cons.
Filed June 28, 2013
Held In consolidated proceedings involving jury convictions and pleas to
(Note: This syllabus multiple offenses where defendant’s counsel moved to reconsider only
constitutes no part of defendant’s sentence, the denial of the motion to reconsider the sentence
the opinion of the court was vacated and the cause was remanded to allow the filing of a valid
but has been prepared certificate under Supreme Court Rule 604(d), an opportunity to file a new
by the Reporter of motion to withdraw the guilty plea and/or reconsider the sentence, and for
Decisions for the a new motion hearing, since Rule 604(d) is intended to preserve
convenience of the defendant’s right to a direct appeal of both sentencing and pleading
reader.)
issues, which may be lost if not properly raised due to a failure to strictly
follow Rule 604(d).
Decision Under Appeal from the Circuit Court of Du Page County, Nos. 11-CF-1857, 10-
Review CF-2588; the Hon. John J. Kinsella, Judge, presiding.
Judgment Vacated and remanded with directions.
Counsel on Thomas A. Lilien and Bruce Kirkham, both of State Appellate Defender’s
Appeal Office, of Elgin, for appellant.
Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman and
Kristin M. Schwind, Assistant State’s Attorneys, of counsel), for the
People.
Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Hutchinson and Jorgensen concurred in the judgment and
opinion.
OPINION
¶1 A jury convicted defendant, Jimmie R. Jordan, of aggravated driving under the influence
of alcohol (625 ILCS 5/11-501(d)(1)(G) (West 2010)) and aggravated driving while his
license was revoked (625 ILCS 5/6-303(d-1) (West 2010)). He was sentenced to concurrent
30-month probation terms (case No. 10-CF-2588). Later, the State petitioned to revoke his
probation. In a separate prosecution, he was charged with aggravated battery (720 ILCS 5/12-
3.05(d)(4) (West 2010)) (case No. 11-CF-1857). At a consolidated hearing, the trial court
accepted defendant’s admission to the probation-revocation petition and his nonnegotiated
guilty plea to aggravated battery. At another hearing, defendant was resentenced to 36
months’ imprisonment for each traffic offense and 42 months’ imprisonment for aggravated
battery, all sentences to run concurrently. The trial court admonished defendant pursuant to
Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001). By counsel, defendant timely filed
separate motions to reconsider the sentences in both cases. In case No. 11-CF-1857, his
attorney filed a certificate of compliance with Illinois Supreme Court Rule 604(d) (eff. July
1, 2006). It stated, in pertinent part:
“1. I have consulted with the Defendant in person to ascertain his contentions of error
in the imposition of the sentence;
2. I have examined the trial court file and report of proceedings of the plea; and
3. I have made such amendments to the motion necessary for an adequate
presentation of any defects in the proceedings.”
The trial court denied the motions. Defendant timely appealed in both case No. 10-CF-2588
(appeal No. 2-12-0108) and case No. 11-CF-1857 (appeal No. 2-12-0106). We consolidated
the appeals.
¶2 On appeal, defendant contends that the orders denying his postjudgment motions must
be vacated, and the causes remanded, because counsel’s certificate did not comply strictly
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with Rule 604(d).1 We agree.
¶3 As pertinent here, Rule 604(d) states that counsel “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 [the] 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.” Ill. S. Ct. R. 604(d) (eff. July 1, 2006). Relying on People v.
Dryden, 2012 IL App (2d) 110646, defendant contends that the certificate was fatally
deficient because it failed to state that his attorney had consulted with him to ascertain his
contentions of error in the entry of the plea of guilty.
¶4 Rule 604(d) requires strict compliance. People v. Janes, 158 Ill. 2d 27, 33 (1994). Our
review is de novo. People v. Johnson, 363 Ill. App. 3d 356, 359 (2006).
¶5 In Dryden, the defendant pleaded guilty to aggravated driving under the influence of
alcohol and was sentenced to 20 years’ imprisonment. He filed a combined motion both to
withdraw the plea and to reconsider the sentence. His attorney filed a Rule 604(d) certificate
stating that he had consulted with the defendant to ascertain his contentions of error in the
entry of the plea of guilty. On appeal, we held that the certificate was defective, as it “did not
explicitly state that counsel ascertained [the] defendant’s contentions of error in the sentence,
even though the motion included a request to reconsider the sentence.” Dryden, 2012 IL App
(2d) 110646, ¶ 8. We continued:
“The State points out that the rule’s consultation requirement is phrased in the
disjunctive: counsel must certify that he sought ‘to ascertain defendant’s contentions of
error in the sentence or the entry of the plea of guilty.’ (Emphasis added.) [Citation.]
However, in this context, it is clear that ‘or’ means ‘and.’ [Citation.] It would be absurd
to suggest that where, as here, counsel moves both to withdraw the plea and to reconsider
the sentence, counsel may arbitrarily choose to consult with the defendant about only one
type of error.” Id. ¶ 9.
¶6 Dryden is arguably distinguishable in that the defendant there filed motions both to
withdraw the guilty plea and to reconsider the sentence. Here, as noted, defendant moved
only to reconsider his sentences. Nevertheless, we conclude that “or” still means “and.”
¶7 When we interpret a supreme court rule, our goal is to ascertain and effectuate the
supreme court’s intent. Friedman v. Thorson, 303 Ill. App. 3d 131, 135 (1999). We first look
to the rule’s language; if it is unambiguous, we must effectuate it without invoking extrinsic
aids. Id. However, if it is ambiguous–susceptible to more than one reasonable
interpretation–we may look beyond the language to the purpose it aims to serve. Id.
¶8 As Dryden noted, “or” is disjunctive. Elementary School District 159 v. Schiller, 221 Ill.
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Defendant concedes that no Rule 604(d) certificate was required in case No. 10-CF-2588,
a probation-revocation proceeding (see In re J.E.M.Y., 289 Ill. App. 3d 389, 391 (1997)), but he
notes that any Rule 604(d) violation in case No. 11-CF-1857 requires new proceedings in both cases,
as the potential modification of the sentence in case No. 11-CF-1857 might affect the trial court’s
decision in case No. 10-CF-2588. See In re Vincent Y., 337 Ill. App. 3d 752, 758 (2003).
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2d 130, 145 (2006). “As used in its ordinary sense, the word ‘or’ marks an alternative
indicating [that] the various parts of the sentence which it connects are to be taken
separately.” Id. However, the strict meaning of “or” “is more readily departed from than that
of other words.” John P. Moriarty, Inc. v. Murphy, 387 Ill. 119, 129 (1944). Where such a
construction is necessary to effectuate the drafters’ intent, “or” may be construed to mean
“and.” Id. As noted, this is precisely what we did in Dryden.
¶9 Where, as in Dryden, the defendant moves both to withdraw his plea and to reconsider
his sentence, “or” clearly means “and.” But where, as here, the defendant moves only to
reconsider his sentence, “or” becomes ambiguous. Of course it cannot be strictly disjunctive;
where the defendant moves to reconsider his sentence, counsel cannot satisfy Rule 604(d)
by certifying that he has ascertained the defendant’s contentions only as to his plea. See
Friedman, 303 Ill. App. 3d at 135 (“supreme court rules must be construed to avoid an
absurd result”). But on the question of whether counsel may ascertain the defendant’s
contentions only as to his sentence, or whether counsel must ascertain his contentions, if any,
as to both his sentence and his plea, reasonable minds can differ. Indeed, though without
specifically analyzing the issue, different courts have assumed both meanings. Compare
People v. Prather, 379 Ill. App. 3d 763, 768 (2008) (although defendant moved only to
reconsider his sentence, a certificate stating that counsel had ascertained defendant’s
contentions of “ ‘error and sentence’ ” did not strictly comply with the rule’s requirement that
he certify that he had ascertained defendant’s “contentions of error in the guilty plea hearing
as well as in the sentence” (emphasis added)), with People v. Packard, 259 Ill. App. 3d 681,
684 (1994) (where defendant “challenges only his sentence,” the rule “clearly requires that
defense counsel certify that he has consulted with defendant *** to ascertain his contentions
of error in the sentence”).
¶ 10 To us, the ambiguity is readily resolved by reference to the purpose of the certificate
requirement, and specifically the purpose of strict compliance. “The purpose of complying
strictly with Rule 604(d) is to safeguard a defendant’s right to a direct appeal, ‘a right which
may be forever lost under the waiver rule if any appealable issue is not properly raised
because Rule 604(d) has not been strictly followed.’ ” (Emphasis added.) People v. Heinz,
259 Ill. App. 3d 709, 711-12 (1994) (quoting People v. Davis, 255 Ill. App. 3d 647, 649
(1994)); see also Ill. S. Ct. R. 604(d) (eff. July 1, 2006) (“Upon appeal any issue not raised
by the defendant in the motion to reconsider the sentence or withdraw the plea of guilty and
vacate the judgment shall be deemed waived.”). Where a defendant enters a nonnegotiated
plea, “appealable issues” can fall into two categories: those as to the sentence and those as
to the plea. See Ill. S. Ct. R. 604(d) (eff. July 1, 2006). Counsel’s obligation is to avert the
forfeiture of any such issue, not just those issues that fall into one category or the other.
Obviously, counsel cannot avert the forfeiture of any such issue unless he consults with the
defendant to ascertain all such issues, be they related to the sentence, the plea, or both.
¶ 11 This is no less true where the defendant moves only to reconsider his sentence. To be
sure, where the defendant files the motion pro se and is appointed counsel thereafter (see id.),
counsel might be inclined to assume that the defendant has filed that motion because he has
no contentions as to his plea. This is a dangerous assumption. The defendant might simply
be unaware of the range of viable attacks on his plea. Or, ironically, he might have
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interpreted too strictly the trial court’s admonishments under Illinois Supreme Court Rule
605(b)(2) (eff. Oct. 1, 2001): that prior to taking an appeal the defendant must file a motion
“to have the trial court reconsider the sentence or to have the judgment vacated and for leave
to withdraw the plea of guilty.” (Emphasis added.) That is, he might have understood “or”
as strictly disjunctive–such that he believed that he could file only one motion or the
other–when of course he could file either motion or both. See People v. Lindsay, 239 Ill. 2d
522, 531 (2011) (remedy for certificate violation is remand for “the opportunity to file a new
motion to withdraw the guilty plea and/or reconsider the sentence” (emphasis added)). With
the right to a direct appeal at stake, counsel should not merely assume that the defendant has
knowingly challenged only his sentence; rather, he should consult with the defendant to
confirm that assumption, or to dispel it.
¶ 12 A certified consultation with the defendant as to both categories of potential issues is
even more important where, as here, the defendant’s motion to reconsider his sentence is
filed by counsel. In this case, counsel consulted with defendant to ascertain his contentions
of error as to the sentence on his plea, and counsel then filed a motion to reconsider that
sentence (as well as a motion to reconsider the sentence on his probation admission). For all
we know, defendant had viable contentions as to his plea but counsel failed to even consider
them. If we were to hold that counsel strictly complied with Rule 604(d), those contentions
would now be forfeited, in obvious contravention of the purpose that strict compliance exists
to serve. This is perhaps the strongest proof that strict compliance did not occur.
¶ 13 Accordingly, we reject any suggestion that which motion is filed will dictate the extent
of the consultation that the rule requires. To be sure, counsel must certify that he has made
any necessary amendments to “the motion.” Ill. S. Ct. R. 604(d) (eff. July 1, 2006). But we
do not read this requirement to indicate that, where “the motion” seeks only reconsideration
of the sentence, the consultation (and any resulting amendments) need pertain only to
sentencing issues. Obviously, a motion to reconsider the sentence may be amended (1) to
raise additional sentencing issues or (2) to add the substance of a motion to withdraw the
plea. And indeed, the rule states that the required amendments are those “necessary for
adequate presentation of any defects in those proceedings.” (Emphasis added.) Id. Here,
“those proceedings” can easily refer to the “proceedings of the plea of guilty,” the report of
which counsel was required to review. Id. Thus, the rule envisions that, even where the
motion filed seeks only reconsideration of the sentence, the consultation (and any resulting
amendments) will pertain to the plea as well. The phrase “those proceedings” can also be
read to refer to more than one proceeding, specifically the proceeding of the plea of guilty
and the proceeding of the sentencing hearing. If the phrase were intended to refer to only one
or the other, the rule would refer to “that proceeding,” not the plural “those proceedings.”
¶ 14 More importantly, a suggestion that the scope of the motion controls the scope of the
consultation–rather than vice versa–puts the cart before the horse. It is the consultation that
should determine which issues are pertinent and thus which motion (or motions) should be
filed. (For example, if the defendant has already filed a pro se motion only to reconsider the
sentence, it is the consultation that should determine whether the motion to reconsider the
sentence should be amended to include only additional sentencing issues or whether, in
addition, the substance of a motion to withdraw the plea should also be filed.) If it were the
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scope of the motion that determines the scope of the consultation, the purpose of the rule
would be seriously undermined. In this case, we would be forced to hold that counsel strictly
complied with the rule where he averted the forfeiture of any sentencing issues,
notwithstanding the forfeiture of any issues concerning the plea. We cannot imagine that the
supreme court designed the rule, and insisted on strict compliance therewith, to avert the
forfeiture of issues of only one type or the other, as opposed to the forfeiture of any and all.
¶ 15 That said, we note here that we are not presuming that counsel was ineffective. We are
not presuming that, had counsel consulted with defendant about his plea, counsel would have
discovered an issue of merit. Indeed, the consultation might have quickly revealed that
defendant had no desire to attack his plea, or that there was no basis to attack his plea. Thus,
although we hold that a consultation as to the plea was required, and that counsel was
required to certify such consultation in his Rule 604(d) certificate, we are not presuming that
the consultation would have borne fruit.
¶ 16 Nevertheless, without the certified consultation as to the plea, we are left to speculate that
defendant might have had such contentions of error and wished to pursue them, and thus
might have forfeited them. This prospect is wholly at odds with the assertion that counsel
strictly complied with the rule. Again, strict compliance enables us to know that a
defendant’s postplea motion contained every postplea contention he had, that no postplea
contention was lost. If we cannot feel secure in that knowledge, then, a fortiori, strict
compliance cannot have occurred. The point is that, where defendant could file both a motion
to reconsider the sentence and a motion to withdraw his plea in order to preserve all of his
appeal rights, but he filed only a motion to reconsider the sentence, we cannot know that the
decision not to move also to withdraw the plea was defendant’s decision based on proper
advice and “consultation” with counsel unless counsel’s Rule 604(d) certificate contains
language referring to consultation about the plea.
¶ 17 This, again, is the ultimate point: Rule 604(d) is designed to avert forfeiture. Of course,
if counsel consults with the defendant about both his sentence and his plea, and if they decide
to move only to reconsider the sentence, any contentions as to the plea are waived. Id. But
that is, they are literally waived; the defendant has voluntarily relinquished them after
consultation with counsel. What the rule is designed to avert, more technically, is forfeiture,
the loss of contentions that the defendant had no desire to abandon. See People v. Phipps,
238 Ill. 2d 54, 62 (2010) (“While forfeiture applies to issues that could have been raised but
were not, waiver is the voluntary relinquishment of a known right.”). If counsel consults with
the defendant about contentions of only one type, he has not ensured that the defendant has
no contentions of the other type, and thus any such contentions will be lost–without any
inquiry into their merits, without any voluntary decision to abandon them. Thus, to satisfy
the purpose of the rule, the consultation must extend to both.
¶ 18 In sum, where a defendant enters a nonnegotiated plea and moves only to reconsider his
sentence, Rule 604(d) requires counsel to consult with the defendant to ascertain his
contentions of error, if any, as to both his sentence and his plea. Counsel then must certify,
among other things, that he has consulted with the defendant “to ascertain [the] defendant’s
contentions of error in the sentence or the entry of the plea of guilty.” Ill. S. Ct. R. 604(d)
(eff. July 1, 2006). Although counsel’s use of “or” might be ambiguous, “we will not fault
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counsel for using the language of the rule.” People v. Mineau, 2012 IL App (2d) 110666,
¶ 16.
¶ 19 We vacate the orders of the circuit court of Du Page County denying defendant’s motions
to reconsider his sentences, and we remand the causes to allow “(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.” Lindsay, 239 Ill. 2d at 531.
¶ 20 Vacated and remanded with directions.
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