People v. Cloyd

Filed 2/4/10 NO. 4-09-0654
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
PATRICK W. CLOYD, ) No. 08CF228
Defendant-Appellant. )
) Honorable
) Jennifer H. Bauknecht,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
This appeal comes to us on the motion of defendant's
counsel, the office of the State Appellate Defender (OSAD), for
remand for strict compliance with Supreme Court Rule 604(d) (210
Ill. 2d R. 604(d)).
I. BACKGROUND
In September 2008, the State filed a four-count
information charging defendant, Patrick W. Cloyd, with
residential burglary, a Class 1 felony, committed on or about
September 11, 2008, to September 14, 2008 (720 ILCS 5/19-3(a),
(b) (West 2006)) (count I); unlawful possession of stolen
firearms, a Class 2 felony, as to two separate weapons, committed
September 18, 2008 (720 ILCS 5/16-16(a), (b) (West 2006)) (counts
II and III); and unlawful use of a weapon, a Class 3 felony (720
ILCS 5/24-1(a)(7)(ii) (West 2006)) (count IV).
In December 2008, defendant entered an open plea of
guilty to the charged offenses. The trial court advised
defendant on the nature of the charges, the possible penalties,
and the rights he was giving up by pleading guilty. The court
heard the factual basis that the guns were taken from another
person’s home by defendant and recovered by police several days
later. The court accepted the plea.
In May 2009, the trial court sentenced defendant to
concurrent prison terms of 8 years for residential burglary
(count I) with credit for 229 days’ time served, 7 years for each
count of unlawful possession of a firearm (counts II and III),
and 5 years for unlawful use of a weapon (count IV). The court
also ordered defendant to pay $2,022.46 restitution and fines
($20 CVF (crime victims fund) and $200 DNA (deoxyribonucleic
acid)) and court costs ($203) within 12 months of his release.
The court explained defendant's right to appeal and the necessity
of a postplea motion and including any issues defendant had in
that motion.
In May 2009, defense counsel filed a motion to
reconsider sentence. After an August 2009 hearing, the trial
court denied the motion. Several days later, defense counsel,
Public Defender Randall S. Morgan, filed a form certificate
stating as follows:
"In accord with Illinois Supreme Court
Rule 604(d), the undersigned attorney for
defendant states to the Court that said
attorney has done each of the following in
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this case:
1. Consulted with the
defendant either by mail or in
person to ascertain defendant’s
contentions of error in the
sentence or entry of the plea of
guilty in this case,
[ ] By Mail _________________
_________________
_________________
[ x] In person _______________
_______________
_______________
2. Examined the trial court
file (the file of the Circuit
Court) in this case.
3. Was present during the
proceedings of the plea of guilty
in this case as trial counsel.
4. Made any amendments to the
motion necessary for adequate
presentation of any defects in the
proceedings upon the plea of guilty
and sentencing in this case."
(Emphasized material added by
interlineation.)
Defense counsel amended item (3) above by interlineation, to read
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as follows: "Was present during the proceedings of the plea of
guilty in this case as trial counsel." After a hearing in August
2009, the trial court denied the motion. This appeal followed,
and OSAD has been appointed to represent defendant on appeal.
II. ANALYSIS
OSAD has filed a motion for remand, contending that
defendant’s counsel failed to file a certificate strictly
complying with Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)).
Rule 604(d) provides as follows:
"(d) Appeal by Defendant From a Judgment
Entered Upon a Plea of Guilty. *** The
defendant's attorney shall file with the
trial court a certificate stating that the
attorney [(1)] has consulted with the
defendant either by mail or in person to
ascertain defendant's contentions of error in
[(a)] the sentence or [(b)] the entry of the
plea of guilty[,] [(2)] has examined the
[(a)] trial court file and [(b)] report of
proceedings of the plea of guilty, and [(3)]
has made any amendments to the motion
necessary for adequate presentation of any
defects in those proceedings." 210 Ill. 2d
R. 604(d).
We note the certificate requirements are a single
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sentence of Rule 604(d). Brackets were added above to break out
the elements. This court also summarized these elements in its
2007 opinion in People v. Grice, 371 Ill. App. 3d 813, 817, 867
N.E.2d 1143, 1146-47 (2007). OSAD states that counsel's
certificate is deficient, specifically, counsel failed to certify
that he examined the report of proceedings of the December 2008
proceeding wherein defendant admitted his guilt in this case.
Instead, he wrote in he "was present during the proceedings of
the plea of guilty in this case as trial counsel."
Defendant claims he is entitled to remand for the
filing of a new postplea motion under the controlling precedent
of People v. Janes, 158 Ill. 2d 27, 33, 630 N.E.2d 790, 792
(1994). See also People v. Prather, 379 Ill. App. 3d 763, 769,
887 N.E.2d 44, 47-48 (2008) (Fourth District). The State notes
the trial judge agreed with defense counsel that the transcript
need not be prepared when, as in this case, the same attorney was
at the guilty-plea hearing. The State found no authority
supporting this interpretation of Rule 604(d), however, and
quoted this court’s 2007 opinion in Grice, stating the
certificate must show defendant’s "attorney has examined the
report of proceedings of the plea of guilty." Grice, 371 Ill.
App. 3d at 817, 867 N.E.2d at 1147. The State therefore concedes
the case should be remanded, and we agree.
The transcript of the August 2009 hearing on
defendant’s motion to reconsider contains the following colloquy
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on the Rule 604(d) certificate:
"THE COURT: ***
*** Mr. Morgan [(defense counsel)], I
believe I will need a [Rule] 604(d)
certificate from you.
MR. MORGAN: Well, I think--
THE COURT: The Fourth District is
requiring it on a motion to reconsider the
sentence I believe.
MR. MORGAN: Perhaps we can talk about
this, Judge. I take it from another case
that we have that this is really a change in
procedure. When I've been the attorney of
record from day one, I attend the trial or
sentencing hearing, whatever, and we get to
this stage, then it's never been the
procedure that I then have to file a 604
certificate because it's saying that I
reviewed the transcript, etc., because
obviously I was there. We don't have a
transcript of that hearing normally prepared.
THE COURT: Right.
MR. MORGAN: I believe there's a cost
difference in having the county pay for it as
opposed to waiting and having the State pay
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for it.
THE COURT: Right.
MR. MORGAN: If we're now going to have
to do that, that means I'm going to have to
order a sentencing transcript in every case
even though I was there at the sentencing
hearing so I can then sign the certificate
saying I've reviewed the transcript in
preparation as I understand it.
THE COURT: Well, okay. You agree with
me that we've gotten cases kicked back.
Right?
MR. MORGAN: It seems to be. Even
though I think there was a decision on that
case, I think the Appellate Defender has
said, there's no certificate, send it back.
THE COURT: It's my understanding, and
perhaps this will be clarified down the road,
that the certificate would be satisfied by
you indicating in the other section that you
were the attorney of record and present at
the sentencing hearing and aware of
everything so that--
MR. MORGAN: That's fine. The rule is
so convoluted--I'm sure the Appellate Court
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has heard that before--because it doesn't say
exactly what the situation is. You can read
it in any different way. So I have in the
past said that, and they don't seem to have a
problem with that.
THE COURT: I would be satisfied if you
would indicate it on the [Rule] 604(d)
certificate until they tell me that actually
we are to transcribe it which of course has
tremendous cost implications to the county.
MR. MORGAN: Yes.
THE COURT: So at this point if--I think
we have a form.
MR. MORGAN: We do. I'll fill out the
form and get it on file today, and that's the
procedure I'll follow.
THE COURT: Just indicate that you were
the attorney of the record and were at the
hearing and are aware of the issues raised,
and then I can take up your motion to
reconsider. We've got the form for you, Mr.
Morgan.
MR. MORGAN: Thank you, Judge. I guess
the procedure to elaborate further, Judge,
I've just never filed this if I was the
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attorney of record. It just never came up.
THE COURT: I know. I understand that,
but the problem is I'm getting these appeals
thrown back to me in order to comply with the
rules so that's what we're doing.
All right. I think that should be
sufficient. At least we'll try it and see
what they think about that."
We note the December 2008 guilty-plea proceeding runs from page
6, the cover page, through page 13 of volume III in the record
before us; the May 2009 sentencing hearing to which defense
counsel refers runs from page 31, the cover page, to page 52 of
volume III. The colloquy suggests defense counsel elected not to
have transcripts of either the guilty-plea or the sentencing
hearing prepared for his examination, consistent with his common
practices.
The question of whether defense counsel complied with
Rule 604(d) is subject to de novo review. People v. Johnson, 363
Ill. App. 3d 356, 359, 843 N.E.2d 434, 437 (2006), rev'd &
remanded on other grounds, 225 Ill. 2d 573, 870 N.E.2d 415(2007), citing People v. Lloyd, 338 Ill. App. 3d 379, 384, 788
N.E.2d 1169, 1173 (2003); see also Grice, 371 Ill. App. 3d at
815, 867 N.E.2d at 1145. In ascertaining whether compliance has
occurred, we are mindful that "[t]he supreme court's rules are
not aspirational; rather, they have the force of law." People v.
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Young, 387 Ill. App. 3d 1126, 1127, 903 N.E.2d 434, 435 (2009),
citing Bright v. Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275,
277-78 (1995). As stated in Bright, "[t]hey are not suggestions.
They have the force of law, and the presumption must be that they
will be obeyed and enforced as written." Bright, 166 Ill. 2d at
210, 652 N.E.2d at 278; see also People v. Campbell, 224 Ill. 2d
80, 87, 862 N.E.2d 933, 938 (2006) (modified on denial of
rehearing). The certificate itself is all this court will
consider to determine compliance with Rule 604(d). Grice, 371
Ill. App. 3d at 816, 867 N.E.2d at 1146. Our supreme court was
not unclear in Janes. Strict compliance is required. People v.
Pressey, 357 Ill. App. 3d 887, 890-91, 829 N.E.2d 426, 430
(2005).
The manifest purpose of a transcript of the guilty-plea
proceeding is to permit defense counsel the opportunity to review
and reflect upon the events as they transpired, with a fresh eye,
rather than through memory alone. When a defendant pleads
guilty, he or she admits the offense(s) and saves the county the
expense of a jury trial, the right to which they waive by entry
of the guilty plea. The final sentence of Rule 604(d) expressly
provides: "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." 210 Ill.
2d R. 604(d). The preparation of this postplea motion thus has
great significance to a defendant. The particulars of the
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certificate requirements both give meaning to a defendant’s right
to appeal and assist defense counsel in fulfilling their duties
to their client to the best of their ability--not to the best of
their memory. We understand the desire to take what might be
viewed as a practical approach. However, trial courts and
counsel must comply with the rules as written, rather than
interpreting and applying them in a manner so as to shift the
costs from one public pocket to another.
III. CONCLUSION
Accordingly, we grant OSAD's motion and remand the
cause for further proceedings consistent with Rule 604(d), that
is, the appointment of counsel, the filing of a new motion to
withdraw guilty plea or to reconsider sentence, a new hearing on
the motion, and for strict compliance with Rule 604(d) in the
filing of any certificate under the rule.
Remanded with directions.
MYERSCOUGH, P.J., and STEIGMANN, J., concur.
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