People v. Prather

Filed 3/14/08 NO. 4-07-0113
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Woodford County
NEIL S. PRATHER, ) No. 05CF78
Defendant-Appellant. )
) Honorable
) Charles M. Feeney,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK, delivered the opinion of the court:
Defendant, Neil S. Prather, pleaded guilty to aggra-
vated driving while license revoked (DWLR) (625 ILCS 5/6-303(d-3)
(West 2006)), obstructing justice (720 ILCS 5/31-4(a) (West
2006)), and driving under the influence (DUI) (625 ILCS 5/11-501
(West 2006)). Defendant was sentenced to 5 years in prison for
the aggravated DWLR, a consecutive sentence of 4 years in prison
for obstruction of justice, and a concurrent sentence of 364 days
for the DUI. Defendant appeals. We affirm in part, reverse in
part, and remand with directions for proceedings consistent with
this opinion.
I. BACKGROUND
On July 12, 2005, at defendant's arraignment, the trial
court informed defendant of the following regarding the charge of
obstructing justice:
"This is a Class 4 felony. It's punishable
by up to three years in prison and a $25,000
fine. If you have been convicted of the
same or greater class of offense within the
last ten years, excluding any time you have
spent in incarceration for that offense, then
you could be sentenced up to six years in the
Department of Corrections [DOC] and a $25,000
fine."
On August 2, 2005, the trial court informed defendant
of the following regarding the offense of aggravated DWLR:
"This is a Class 4 felony. That is punishable
up to three years in prison and a $25,000 fine.
If you have been convicted of the same or a
greater class of offense within the last ten
years, excluding any time you have spent in
incarceration for that offense, then you could
be sentenced up to six years in the [DOC] and
a $25,000 fine. If other offenses are pending
against you, you could be required to serve a
consecutive sentence, which means one sentence
will be served before the next one starts.
If you are sentenced to [DOC], you would be
required to serve a period of one year of
mandatory supervised release [(MSR)] following
your discharge [from] the DOC."
On December 13, 2005, defendant entered a partially
negotiated guilty plea. At the hearing, the trial court again
stated the possibility of an extended-term sentence if defendant
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had "been convicted of the same or a greater class of offense
within the last [10] years, excluding any time you have spent in
incarceration for that offense," the possibility of consecutive
sentences, and the requirement of MSR. Defendant acknowledged he
understood his right to make the State prove him guilty beyond a
reasonable doubt, his right to a trial, and his right to confront
witnesses, cross-examine witnesses, and testify or remain silent.
The State gave a factual basis for the plea, and the trial court
accepted the guilty plea.
On February 28, 2006, the trial court held a sentencing
hearing. After noting defendant had "11 prior DUIs or similar
offenses with three pending" and defendant had been sentenced to
the DOC four separate times, the court stated that the likelihood
was high that defendant would at some point in time get behind
the wheel and drive an automobile while intoxicated. The court
stated extended-term sentences were appropriate and then deter-
mined consecutive sentences were warranted "given the character
[of the offense]" and given defendant's history. In the court's
opinion, consecutive sentences were required to protect the
public from defendant's criminal conduct "specifically [his]
propensity to drive, to drive without insurance, and to drive
while under the influence." The court sentenced defendant as
stated.
On March 30, 2006, defendant, through his attorney,
filed a motion to reconsider sentence objecting to the imposition
of the consecutive sentence and requesting specific findings for
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the basis of the sentence. In April 2006, defendant filed a pro
se motion alleging ineffective assistance of counsel. On May 30,
2006, defendant filed another pro se motion alleging (1) consecu-
tive sentences were erroneous; (2) the trial court imposed a
double-enhanced sentence; (3) the court failed to admonish
defendant as to the possibility of a consecutive sentence; (4)
the court lacked sufficient evidence for the obstruction-of-
justice charge; (5) the court failed to consider mitigating
factors; (6) the judge made biased and impartial statements
during the sentencing hearing; (7) his counsel was ineffective;
and (8) the court abused its discretion in imposing fines.
On June 13, 2006, defendant's private counsel withdrew
his representation and defendant was appointed a public defender
to represent him.
On September 7, 2006, defendant filed another pro se
motion alleging the consecutive extended-term sentence violated
the proportionate-penalties clause, his sentence was subject to
improper double enhancement, improper imposition of an extended-
term sentence, failure to present a certified copy of his driving
abstract into evidence, insufficient evidence to convict of
obstructing justice, improper police interrogation, and ineffec-
tive assistance of counsel regarding counsel's failure to defend
him and his asking for an inappropriate sentence.
On November 21, 2006, a new public defender was ap-
pointed to represent defendant. On January 23, 2007, the trial
court denied all of the postplea motions. On January 24, 2007,
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counsel filed a Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d))
certificate that stated the following:
"That under Supreme Court Rule 604(d) this
attorney [1] has consulted with the [d]efendant
to ascertain the [d]efendant's [2] contentions of
error and sentence and further has examined
the transcript of both the plea hearing[,]
which took place on December 13, 2005[,]
and the sentencing hearing[,] which took
place on February 28, 2006[,] [3] in the trial
court file and the report of proceedings of
the plea of guilty and has made any amend-
ments to the motion necessary for adequate
presentation of any defect in those pro-
ceedings." (Emphases added.)
This appeal followed.
II. ANALYSIS
Defendant appeals, arguing he is entitled to a new
hearing on his motion to reconsider sentence because defense
counsel's certificate failed to strictly comply with Rule 604(d).
Defendant also argues his sentences are void because the
extended-term statute violates due process.
A. Rule 604(d) Certificate
Rule 604(d) provides the following:
"The defendant's attorney shall file with the
trial court a certificate stating that the
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attorney [1] has consulted with the defendant
either by mail or in person to ascertain
defendant's [2] contentions of error in the
sentence or the entry of the plea of guilty,
[3] 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." (Emphases
added.) 188 Ill. 2d R. 604(d).
This court has stated that a Rule 604(d) certificate must contain
each of the following:
"(1) A statement that the attorney has
consulted with the defendant, either by mail
or in person, to ascertain defendant's conten-
tions of error in the sentence or the entry
of the plea of guilty.
(2) A statement that the attorney has ex-
amined the trial court file.
(3) A statement that the attorney has
examined the report of proceedings of the plea
of guilty.
(4) A statement that the attorney has
made any amendments to the motion necessary
for adequate presentation of any defects in
those proceedings." People v. Grice, 371 Ill.
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App. 3d 813, 817, 867 N.E.2d 1143, 1146-47
(2007).
In this case, defense counsel's certificate was as
quoted above.
Defendant argues this certificate fails to comply with
Rule 604(d) in three ways. First, it does not state whether
counsel's consultation with defendant occurred by mail or in
person. Second, it does not state that counsel ascertained
defendant's contentions of error in the entry of the guilty plea
as it only stated he ascertained defendant's "contentions of
error and sentence." Finally, it does not state whether counsel
examined the court file, stating only that counsel examined the
transcript of the plea hearing and sentencing hearing "in the
trial court file."
In determining whether defense counsel complied with
Rule 604(d), the standard of review is de novo. Grice, 371 Ill.
App. 3d at 815, 867 N.E.2d at 1145. Our supreme court has held
that strict compliance with Rule 604(d) is required and a review-
ing court must remand in any case where counsel failed to
strictly comply. People v. Janes, 158 Ill. 2d 27, 33, 630 N.E.2d
790, 792-93 (1994). This court need not take strict compliance
with Rule 604(d) to unreasonable extremes (see People v. Wyatt,
305 Ill. App. 3d 291, 297, 712 N.E.2d 343, 347-48 (1999) (stating
that the certificate need not recite word for word the verbiage
of the rule)). However, this court cannot simply assume or infer
compliance with Rule 604(d) because the strict waiver require-
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ments of Rule 604(d) demand that any issue not raised in the
motion to reconsider the sentence or the motion to withdraw the
plea of guilty is forfeited. 188 Ill. 2d R. 604(d).
In this case, the State argues that the Rule 604(d)
certificate satisfied the consultation requirement by stating
counsel consulted with defendant and the lack of specification
about the mode of contact does not render the certificate insuf-
ficient. Further, the State acknowledges that the certificate
does not specifically state that counsel ascertained defendant's
contentions of error with respect to the entry of the guilty plea
but states the certificate implied such action as the certificate
stated counsel ascertained "the [d]efendant's contentions of
error and sentence." The State also argues that this court can
infer that defense counsel examined the trial court file as the
certificate states that counsel examined the transcripts of the
guilty-plea hearing and sentencing hearing and examined "the
report of proceedings of the plea of guilty."
While the State argues defense counsel probably did
ascertain all of defendant's errors and most likely did look at
the trial court file, we do not know with certainty because
counsel failed to strictly comply with Rule 604(d). The state-
ment that counsel ascertained defendant's contention of "error
and sentence" may have omitted words intending "error in the
guilty plea and sentence" or may have mistyped a word intending
"error in sentence." We cannot be sure therefore whether counsel
ascertained defendant's contentions of error in the guilty plea
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hearing as well as in the sentence.
More troubling is whether counsel read the trial court
file. The certificate acknowledged counsel read the transcripts
of the guilty plea and sentencing hearings "in the court file"
and the "report of the proceedings of the plea of guilty." The
certificate never stated, though, that counsel reviewed the
entire court file. Because counsel stated he reviewed tran-
scripts "in the court file" but never states he "reviewed the
court file," counsel may not have complied with Rule 604(d). In
this case, counsel did not represent defendant until after the
guilty-plea hearing, sentencing hearing, and a series of
posttrial motions had been submitted. If counsel failed to
thoroughly ascertain defendant's contentions or failed to examine
the trial court file, he might have missed an error that would
then be forfeited. We cannot assume counsel complied with Rule
604(d) and must remand because counsel's certificate did not
strictly comply with the requirements in Rule 604(d).
B. Constitutionality of the Extended-Term Statute
Defendant claims the Unified Code of Corrections
(Unified Code) (730 ILCS 5/5-1-1 et seq. (West 2006)) contains
conflicting provisions regarding the applicable sentence for a
Class 4 felony. Specifically, the statute that authorizes
extended-term sentences violates due process because it is in
direct conflict with the mandatory language of the sentencing
provision for Class 4 felonies.
Under section 5-8-1(a)(7) of the Unified Code,
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"[e]xcept as otherwise provided in the statute defining the
offense, a sentence of imprisonment for a felony shall be a
determinate sentence set by the court under this [s]ection,
according to the following limitations: *** (7) for a Class 4
felony, the sentence shall be not less than 1 year and not more
than 3 years." (Emphasis added.) 730 ILCS 5/5-8-1(a)(7) (West
2004). Defendant claims the mandatory language of this section
limits defendant's sentence to three years on both of his Class 4
felony offenses. Defendant, though, was sentenced to five years
and four years for his two Class 4 felonies pursuant to section
5-8-2 of the Unified Code, which provides the following:
"(a) A judge shall not sentence an
offender to a term of imprisonment in excess
of the maximum sentence authorized by [s]ection
5-8-1 for the class of the most serious
offense of which the offender was convicted
unless the factors in aggravation set forth
in paragraph (b) of [s]ection 5-5-3.2 or clause
(a)(1)(b) of [s]ection 5-8-1 were found to be
present. If the pre[]trial and trial pro-
ceedings were conducted in compliance with
subsection (c-5) of [s]ection 111-3 of the
Code of Criminal Procedure of 1963, the judge
may sentence an offender to the following:
* * *
(6) for a Class 4 felony, a
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term shall be not less than 3 years
and not more than 6 years." 730
ILCS 5/5-8-2(a)(6) (West 2004).
Defendant argues that the extended-term sentencing
provision creates an ambiguous sentencing structure because its
language is in direct conflict with the Class 4 felony sentencing
provision mandating a maximum sentence. For the following
reasons, we disagree.
Section 5-8-1 provides the parameters for felony
sentences and section 5-8-2 authorizes the imposition of an
extended term when certain aggravating factors exist. The
language of the statutes establish that the two sections are to
be read in conjunction with one another not exclusive of one
another. The title of section 5-8-2, "Extended Term," suggests
that in this section the legislature was giving the times that
the set mandatory term should be "extended." The extended-term
section references the set terms in section 5-8-1 and only allows
deviation from section 5-8-1 where certain aggravating factors
are present. In section 5-8-2, the legislature clearly intended
that when an offense is accompanied with the enumerated aggravat-
ing factors, a more significant punishment should apply. The
sentencing structure is not ambiguous as it is clear that section
5-8-1 applies unless enumerated aggravating factors exist that
warrant a greater punishment. Sections 5-8-1 and 5-8-2 do not
conflict and the extended-term provision does not violate due
process.
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III. CONCLUSION
For the reasons stated, we affirm defendant's sentence
to the extent that the applicable provisions of the Unified Code
do not violate due process; we reverse the trial court's judgment
regarding Rule 604(d) compliance 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) strict compliance with
Rule 604(d) requirements. As the State has successfully defended
a portion of the judgment, we award the State its $50 statutory
assessment against defendant as costs of this appeal. People v.
Nicholls, 71 Ill. 2d 166, 174, 374 N.E.2d 194, 197 (1978); see
also People v. Smith, 133 Ill. App. 3d 613, 620, 479 N.E.2d 328,
333 (1985).
Affirmed in part, reversed in part, and remanded with
directions.
STEIGMANN, J., concurs.
TURNER, J., specially concurs in part and dissents in
part.
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JUSTICE TURNER, specially concurring in part and
dissenting in part:
Although I concur with the majority's decision to
affirm defendant's sentence based on his due-process argument, I
disagree with the order to reverse and remand for compliance with
Rule 604(d). Therefore, I respectfully dissent from that portion
of the majority's order.
In the case sub judice, defense counsel's certificate
sufficiently complied with the requirements of Rule 604(d).
Counsel stated he consulted with defendant to ascertain his
contentions of error, examined the transcripts in the trial court
file of the plea and sentencing hearings and the report of
proceedings of the plea of guilty, and made any amendments to the
motion necessary for adequate presentation of any defects in
those proceedings. While the certificate was inartfully worded,
a verbatim recitation is not required. See Wyatt, 305 Ill. App.
3d at 297, 712 N.E.2d at 347-48. The majority's order, however,
has the effect of requiring such a verbatim recitation of the
rule. I would affirm the trial court's judgment in all other
respects.
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