                             2015 IL App (2d) 140173
                                  No. 2-14-0173
                           Opinion filed January 9, 2015
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Winnebago County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) Nos. 10-CF-905
                                       )       10-CF-1425
                                       )
ORVILLE AXELSON,                       ) Honorable
                                       ) Rosemary Collins,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE McLAREN delivered the judgment of the court, with opinion.
       Justices Birkett and Spence concurred in the judgment and the opinion.

                                           OPINION

¶1     Defendant, Orville Axelson, pleaded guilty to one count each of burglary (720 ILCS

5/19-1(a) (West 2010)) and unlawful possession of a stolen motor vehicle (625 ILCS 5/4-

103(a)(1) (West 2010)) and was sentenced to concurrent 10-year prison terms. The trial court

denied his postjudgment motion, and he appeals. On appeal, defendant argues that, because his

attorney failed to file a proper certificate of compliance with Illinois Supreme Court Rule 604(d)

(eff. July 1, 2006), the order denying his motion must be vacated and the cause must be

remanded.
2015 IL App (2d) 140173


¶2     The State confesses error and agrees that the cause must be remanded. The parties

disagree, however, on the proper procedure on remand. Defendant contends that, because he

entered a nonnegotiated plea, Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001) applies. The

State contends that defendant’s plea was negotiated, so that Illinois Supreme Court Rule 605(c)

(eff. Oct. 1, 2001) applies. We agree with the State and remand the cause with directions.

¶3     In case No. 10-CF-905, defendant was charged with two counts of burglary and one

count of possession of burglary tools (720 ILCS 5/19-2(a) (West 2010)). In case No. 10-CF-

1425, he was charged with one count of unlawful possession of a stolen motor vehicle. The

cases were consolidated.

¶4     On April 17, 2012, the parties presented an agreement under which defendant would

plead guilty to one count of burglary and the count of unlawful possession of a stolen motor

vehicle, and the other charges would be dismissed. In questioning defendant, the judge asked,

“Is there any agreement about what the sentencing would be?” Defendant said, “No.” The judge

then stated, “That’s correct, too. What we call an open plea.” After further admonishments, the

judge stated, “[B]ecause this is what’s called an open plea that means that there is no agreement

about what the sentence will be.”

¶5     The judge then stated, “And it’s my understanding that the sentences will be concurrent.”

Defendant’s attorney, Wendell Coates, responded, “That’s correct.” The judge explained to

defendant what “concurrent” meant but did not specifically inform him that the law allowed

consecutive sentencing in his case. After further admonishments and the presentation of the

factual basis, the court accepted the plea. On June 13, 2012, defendant was sentenced to

concurrent 10-year prison terms.




                                              -2-
2015 IL App (2d) 140173


¶6     Coates later withdrew from the case. On January 13, 2014, defendant’s new counsel,

Michael Phillips, filed an amended motion to withdraw his guilty plea and, alternatively, to

reduce his sentences. It alleged defects in the guilty-plea hearing and in the sentencing process.

¶7     On January 13, 2014, at a status hearing without defendant present, Phillips stated that

the motion was “defendant’s motion to withdraw his guilty plea. *** And to—and/or in the

alternative to reduce sentence.” The judge noted, “Actually, Counsel, this was a cap case. So

when there’s a cap, it’s a motion to withdraw plea. At least that’s my understanding of the law.”

Phillips responded, “That’s my understanding too. If there’s an agreed sentence on the plea

agreement [sic], then you have to make a motion to withdraw.”

¶8     On February 7, 2014, Phillips submitted a certificate stating that he had consulted with

defendant “to ascertain [his] contentions of error regarding the entry of a Plea of Guilty”; that he

had examined the trial court file and the report of proceedings of the guilty-plea hearing; and that

he had made any amendments to the motion necessary to present any defects in the proceedings.

¶9     On February 11, 2014, the trial court denied defendant’s motion. He timely appealed.

¶ 10   On appeal, the parties agree that the ruling on the postjudgment motion must be vacated,

and the cause remanded, because Phillip’s certificate did not strictly comply with Rule 604(d).

See People v. Janes, 158 Ill. 2d 27, 35 (1994) (strict compliance required). Rule 604(d) requires

an attorney to certify 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). As interpreted, this language requires counsel to certify that “he has consulted

with the defendant ‘to ascertain defendant’s contentions of error in the sentence and the entry of

the plea of guilty.’ ” (Emphasis in original.) People v. Tousignant, 2014 IL 115329, ¶ 20; see

Ill. S. Ct. R. 604(d) (eff. July 1, 2006). Here, Phillips’ certificate stated that he had consulted



                                                -3-
2015 IL App (2d) 140173


with defendant “to ascertain [his] contentions of error regarding the entry of a Plea of Guilty” but

did not mention contentions of error regarding defendant’s sentences. Thus, it did not strictly

comply with Rule 604(d).

¶ 11   The parties agree that the order denying defendant’s motion must be vacated, and the

cause remanded, so that defendant may (1) file a new postjudgment motion if he wishes; (2) have

counsel file a complete and correct Rule 604(d) certificate; and (3) have the motion heard, all in

strict compliance with Rule 604(d). See Tousignant, 2014 IL 115329, ¶¶ 5, 23. We agree.

¶ 12   The parties disagree, however, on one matter. Defendant asserts that, on remand, he must

be allowed to move either to withdraw his guilty plea, to reconsider his sentences, or both.

Accordingly, he requests that we direct the trial court first to admonish him per Rule 605(b),

which applies when “a judgment is entered on a plea of guilty, other than a negotiated plea of

guilty.” Ill. S. Ct. R. 605(b) (eff. Oct. 1, 2001). Rule 605(c), by contrast, applies when a

judgment is entered on a negotiated plea of guilty, i.e., “one in which the prosecution has bound

itself to recommend a specific sentence, or a specific range of sentence, or where the prosecution

has made concessions relating to the sentence to be imposed and not merely to the charge or

charges then pending.” Ill. S. Ct. R. 605(c) (eff. Oct. 1, 2001). Defendant notes that, at the

guilty-plea hearing, he stated that there was no agreement on his sentences, and the trial judge

stated that he was entering an “open” plea. Defendant concludes that, because his plea was not

negotiated, the proceedings on remand must follow Rule 605(b).

¶ 13   The State responds that the proceedings on remand must follow Rule 605(c), under which

defendant may move only to withdraw his guilty plea and vacate the judgment. The State

reasons that defendant’s plea was in reality a negotiated one, because, as part of the agreement,




                                               -4-
2015 IL App (2d) 140173


the prosecution elected not to recommend consecutive sentences. The parties implied this at the

hearing, and, indeed, the trial judge later recognized that this was a “cap” case.

¶ 14   The resolution of this issue turns on the construction of Rule 605. We must effectuate the

intent of the rule’s drafters, the best evidence of which is the rule’s language, given its plain

meaning. Tousignant, 2014 IL 115329, ¶ 8.

¶ 15   Rule 605(c) applies when “the prosecution has made concessions relating to the sentence

to be imposed and not merely to the charge or charges then pending.” Ill. S. Ct. R. 605(c) (eff.

Oct. 1, 2001). This language is plain, and it applies here. Whatever defendant and the trial judge

said at one point, the guilty-plea hearing as a whole proves that the prosecution did make a

concession relating to the sentences to be imposed—it agreed to forgo any recommendation that

defendant receive consecutive sentences. That objective fact controls. Whether to apply Rule

605(b) or 605(c) depends on the character of the plea and the agreement, if any, underlying it,

and not on the defendant’s subjective understanding of his plea. Of course, any inconsistency

between the actual plea and the defendant’s understanding thereof might support a claim of error

to be raised later in a postjudgment motion. That is a separate matter, and we intimate no

opinion on whether any such misunderstanding might provide grounds for relief on remand.

¶ 16   For the foregoing reasons, we (1) vacate the order denying defendant’s postjudgment

motion; and (2) remand the cause for postjudgment proceedings in accordance with this opinion

and Rules 604(d) and 605(c).

¶ 17   Vacated and remanded with directions.




                                                -5-
