Filed 8/24/10             NO. 4-10-0124

                      IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )   Appeal from
          Plaintiff-Appellee,          )   Circuit Court of
          v.                           )   Champaign County
DESMOND TURNER,                        )   No. 09CF1654
          Defendant-Appellant.         )
                                       )   Honorable
                                       )   Thomas J. Difanis,
                                       )   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 2009, the State charged defendant, Desmond

Turner, with three counts of aggravated battery committed

September 22, 2009, against a teacher’s assistant (count I), the

school principal (count II), and a teacher at his school (count

III), all Class 3 felonies, based on an incident on the school

grounds wherein the three school employees attempted to break up

an altercation between defendant and another student.

          On November 29, 2009, defendant was admonished and

entered an open plea of guilty to count II (720 ILCS 5/12-4(b)(3)

(West 2008)), involving the school principal, and the State

agreed to dismiss the remaining two counts.    The factual basis
for the plea was as follows:

               "Judge, in this case if called to

          testify witnesses would include the named

          victim, Mr. McFarling, as well as other

          school employees.    They would testify that on

          September 22, 2009, shortly before 2:00

          o’clock in the afternoon they were present at

          Pathways School located at 200 South

          Frederick in Rantoul.    At that time this

          defendant and a minor student got into an

          argument during PE class.     The victims

          attempted to separate the parties.     At one

          point they had the parties separated but the

          Defendant pushed through a set of doors to

          continue the fight with the other student.

          All three victims then got between the

          Defendant and the other student, tried to

          keep them apart.    The defendant pushed and

          shoved all three victims until they got him

          wrestled to the ground.    They held him there

          until police arrived."

The court accepted defendant's plea and entered judgment on count

II.

          On January 29 2010, the trial court sentenced

defendant, having turned 18 on January 8, 2010, after summarizing

                                - 2 -
the background of defendant in cases from Peoria County:

               "The Defendant, starting with [No.] 03-

          JD-296, in Peoria County, in 03-JD-404, two

          separate aggravated[-]battery petitions, was

          ordered to serve a sentence of probation,

          complete mental[-]health and anger[-]

          management counseling and attend school.

          Petitions to revoke were filed alleging new

          offense of aggravated battery.    He admitted

          to the allegations, and again, [15] months of

          probation, mental[-]health counseling.    Then

          in [No.] 05-JD-376, another aggravated[-]

          battery petition was filed.    Same sentence of

          probation.    Same order for anger management.

          Criminal damage in [No.] 05-JD-408.    Was

          adjudicated on the same date, with the same

          directions.

               Then in [No.] 08-JD-82, again,

          aggravated battery, school employee.    Attend

          school, complete anger[-]management

          counseling, get substance[-]abuse evaluation.

          And now, we have this offense, involving more

          school employees.

               The Defendant has been given numerous

          opportunities to hopefully deal with his

                                - 3 -
          anger issues.   ***

               The bottom line is, the Court has to

          make a determination as to whether or not the

          Defendant needs to be incarcerated because

          he’s dangerous.   He is literally a walking

          time bomb and nothing that has been tried

          through the Juvenile Court Act has deterred

          him at all."

The court sentenced defendant to a 5-year prison term with credit

for 64 days as time served and dismissed the remaining counts.

          On February 1, 2010, defense counsel filed a motion to

reconsider sentence.   The record on appeal contains an undated,

un-file-stamped Rule 604(d) certificate immediately preceding the

motion to reconsider, stating as follows:

               "I, George Vargas, Senior Assistant

          Public Defender, appointed counsel for

          defendant, pursuant to Supreme Court Rule

          604(d), hereby certify that I have consulted

          with the defendant in person to ascertain

          defendant’s contentions of error in the

          sentence; have examined the court file and

          the report of proceedings."

At hearing on February 9, 2010, the trial judge stated:

               "The Appellate Court literally requires

          that the I’s be dotted, the T’s crossed, and

                                - 4 -
          the 604(d) certificate, the Rule says you

          have examined the trial court file and report

          of proceedings with the guilty plea.      You’ve

          got that.   And you’ve made any amendments to

          the motion necessary for adequate

          presentation of any defects in those motions.

          This motion was filed by you, and it wasn’t a

          pro se motion by the defendant; is that

          correct?

                 [DEFENSE COUNSEL]: Correct, Judge.

                 THE COURT: I’m going to take a chance

          and assume that this will pass muster then by

          the Appellate Court."

The docket entries do not show when defense counsel presented the

certificate, although it is mentioned in the court’s February 9

hearing entry.   Defendant appealed, and the court appointed OSAD

to represent defendant on appeal the same day.

                            II. ANALYSIS

          OSAD has filed a motion for remand, contending

defendant’s counsel failed to file a certificate strictly

complying with Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)).

The transcript of the guilty-plea hearing shows it was prepared

and dated by the court reporter on February 8, 2010, while the

motion to reconsider was filed February 1, 2010, and the hearing

on the motion was held February 9.      Rule 604(d) provides as

                                - 5 -
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.    ***    Upon

           appeal any issue not raised by the defendant

           in a 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).

OSAD quotes People v. Hopkins, 256 Ill. App. 3d 203, 205, 629

N.E.2d 780, 782 (1994), wherein this court rejected "any

suggestion that examination of the report of proceedings from the

plea of guilty is useless or irrelevant to matters which occur at

sentencing."   OSAD states because counsel filed the motion before

                               - 6 -
reviewing the report of proceedings of the plea of guilty,

counsel was required to certify he made any amendments to the

motion necessary for adequate presentation of any defects in the

proceedings, as "[w]ithout counsel’s certification there is no

assurance that any errors which occurred during the guilty[-]plea

proceedings were incorporated into [defendant’s] motion to

reconsider sentence.   See People v. Prather, 379 Ill. App. 3d

763, 768, 887 N.E.2d 44, 47 ([4th Dist.] 2008) (noting the [Rule]

604(d) compliance cannot be presumed)."   OSAD further asserts:

               "By omitting this affirmation, counsel’s

          certificate also fails to strictly comply

          with the requirements of Supreme Court Rule

          604(d).   People v. Dismuke, 355 Ill. App. 3d

          606, 609, 823 N.E.2d 1131, 1134 ([2d Dist.]

          2005) ([']Rule 604(d) sets forth the duties

          of a defense counsel and provides a simple,

          straightforward, and mandatory procedure

          designed to insure that those duties are

          performed[']); People v. Cloyd, 397 Ill. App.

          3d 1084, [1089, ___ N.E.2d ___, ___] ([4th

          Dist.] 2010) (finding attorney’s certificate

          insufficient for failing to certify that he

          had reviewed the report of proceedings of the

          plea of guilty even though counsel was

          present for the hearing)."

                               - 7 -
           OSAD claims defendant 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 Prather, 379 Ill. App. 3d at 769, 887 N.E.2d at

47-48.    The State concedes error, quoting the certificate

requirements this court stated in People v. Grice, 371 Ill. App.

3d 813, 817, 867 N.E.2d 1143, 1146-47 (2007), and we agree.

           The record suggests defense counsel had not read the

report of proceedings when he filed the the motion to reconsider

on February 1, as the court reporter did not certify it until

February 8.    The record does not show precisely when defense

counsel prepared the purported Rule 604(d) certificate.    We again

emphasize the following: (1) supreme court rules are meant to be

followed, as written, and are not mere suggestions or guidelines

from which deviations may be made; (2) postplea motions have real

consequences for each guilty-plea defendant as the rule expressly

provides any issue not included in the postplea motion is

forfeited; and (3) the rule requirements are there to ensure the

best chance defense counsel will note and include any issue in

reviewing the transcripts of the hearings, so as not to rely on

memory alone or lesser records.    In Grice, this court stated it

will not examine the record to determine whether defense

counsel’s conduct satisfied the rule’s requirements but will look

to the certificate itself.    Grice, 371 Ill. App. 3d at 816, 867

N.E.2d at 1146.    We hold because the record shows counsel filed

                                - 8 -
his motion before reviewing the report of proceedings of the plea

of guilty, counsel was required to certify he made any amendments

to the motion necessary for adequate presentation of any defects

in the proceedings.

                         III. CONCLUSION

          Accordingly, we grant OSAD's motion and remand the

cause for the appointment of counsel, the filing of a new motion

to reconsider sentence, a new hearing on the motion, and strict

compliance with Rule 604(d) in the filing of any future

certificates under the rule.

          Remanded with directions.

          POPE and McCULLOUGH, JJ., concur.




                               - 9 -
