People v. Zendejas

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Appellate Court Date: 2017.09.25
08:48:22 -05'00'
People v. Zendejas, 2017 IL App (2d) 160565
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption RUBEN ZENDEJAS, Defendant-Appellant.
District & No. Second District
Docket No. 2-16-0565
Filed August 8, 2017
Decision Under Appeal from the Circuit Court of McHenry County, 15-CF-108; the
Review Hon. Sharon L. Prather, Judge, presiding.
Judgment Vacated and remanded.
Counsel on Bruce E. Brandwein and David M. Smolin, of Brandwein & Smolin,
Appeal of Chicago, for appellant.
Patrick D. Kenneally, State’s Attorney, of Woodstock (Patrick
Delfino, Lawrence M. Bauer, and Aline B. Dias, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel PRESIDING JUSTICE HUDSON delivered the judgment of the
court, with opinion.
Justices Schostok and Birkett concurred in the judgment and opinion.
OPINION
¶1 Defendant, Ruben Zendejas, appeals the denial of his motion to reconsider his sentence of
10 years’ incarceration after he pleaded guilty to aggravated driving under the influence (625
ILCS 5/11-501(a)(6), (d)(1)(C) (West 2014)). Defendant was sentenced on May 27, 2016, and
he moved to reconsider on June 10, 2016. On June 24, 2016, defendant’s counsel filed an
amended motion to reconsider and a certificate under Illinois Supreme Court Rule 604(d) (eff.
Mar. 8, 2016), stating in part:
“2. That [counsel] discussed with the Defendant either by mail or in person his plea
of guilty, his sentence of ten years IDOC and the Defendant’s contentions of error in
his sentence or the entry of the plea of guilty.
***
4. That [counsel] 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.” (Emphasis added.)
¶2 Defendant contends that his sentence was excessive. The State, however, observes that a
remand might be required because the certificate did not strictly comply with Rule 604(d). We
agree.
¶3 Our review is de novo. People v. Prather, 379 Ill. App. 3d 763, 768 (2008). Rule 604(d)
requires strict compliance. People v. Janes, 158 Ill. 2d 27, 35 (1994). If the certificate did not
strictly comply with the rule, we must remand the cause for the filing of a proper certificate and
the opportunity to file a new postjudgment motion. People v. Lindsay, 239 Ill. 2d 522, 531
(2011). Defendant argues that the State lacks standing to raise the adequacy of the certificate
because the rule is for the protection of the defendant. However, “a Rule 604(d) certificate is
primarily for the benefit of the trial and appellate courts.” People v. Munetsi, 283 Ill. App. 3d
326, 333 (1996), overruled on other grounds, People v. Fitzgibbon, 184 Ill. 2d 320, 326
(1998). “[A] Rule 604(d) certificate, and its accompanying requirements, are not a personal
right of a defendant and therefore cannot be waived by a defendant.” (Emphases in original.)
Munetsi, 283 Ill. App. 3d at 332-33; cf. People v. Youngbey, 82 Ill. 2d 556, 564-65 (1980) (a
presentence report is for the enlightenment of the court as well as for the benefit of the
defendant, and as such, it is not a personal right of the defendant that can be waived). Thus, not
only does the State have the power to raise an issue concerning the certificate, but it is to be
commended for doing so. Munetsi, 283 Ill. App. 3d at 333. We therefore address the State’s
contention.
¶4 Under Rule 604(d), which was recently amended:
“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, *** or, *** a motion to withdraw the plea of
guilty and vacate the judgment.
***
*** 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
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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.” (Emphases added.) Ill. S. Ct. R. 604(d) (eff. July 1,
2017).
The amendment applies retroactively. People v. Easton, 2017 IL App (2d) 141180, ¶ 11.
¶5 Here, the certificate did not strictly comply with the amended rule. First, it did not state that
counsel consulted with defendant about his “contentions of error in the sentence and the entry
of the plea of guilty.” Ill. S. Ct. R. 604(d) (eff. July 1, 2017). Instead of “and” it used the term
“or,” which is not in strict compliance with the rule. See Easton, 2017 IL App (2d) 141180,
¶¶ 3, 18. Second, the certificate did not state that the attorney had examined the report of
proceedings of the sentencing hearing (and not merely of the proceedings on the plea of
guilty). Thus, the certificate was defective and a remand is required.
¶6 We vacate the order denying defendant’s motion to reconsider his sentence, and we
remand 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.” Lindsay, 239 Ill. 2d at 531.
¶7 Vacated and remanded.
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