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.

                                 - 9 -
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

                               - 10 -
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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