                        Illinois Official Reports

                                Appellate Court



                   People v. Mason, 2015 IL App (4th) 130946



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            DEMETRIOUS J. MASON, Defendant-Appellant.



District & No.     Fourth District
                   Docket No. 4-13-0946



Filed              August 4, 2015
Rehearing denied   September 17, 2015



Decision Under     Appeal from the Circuit Court of Champaign County, No. 13-CF-227;
Review             the Hon. Heidi Ladd, Judge, presiding.



Judgment           Reversed and remanded.



Counsel on         Michael J. Pelletier, Jacqueline L. Bullard, and Lawrence Bapst, all of
Appeal             State Appellate Defender’s Office, of Springfield, for appellant.

                   Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino and David J.
                   Robinson, both of State’s Attorneys Appellate Prosecutor’s Office, of
                   counsel), for the People.


Panel              JUSTICE TURNER delivered the judgment of the court, with opinion.
                   Presiding Justice Pope and Justice Knecht concurred in the judgment
                   and opinion.
                                              OPINION

¶1       Pursuant to a negotiated plea agreement, defendant pleaded guilty to criminal sexual abuse,
     and the Champaign County circuit court sentenced defendant to 30 months’ probation.
     Thereafter, defendant filed a timely pro se motion to withdraw his guilty plea. Defense counsel
     also filed a motion to withdraw defendant’s guilty plea and a certificate as required by Illinois
     Supreme Court Rule 604(d) (eff. Feb. 6, 2013). After a hearing, the court denied defendant’s
     request to withdraw his guilty plea.
¶2       Defendant appeals, contending he is entitled to a remand for new postplea proceedings
     because his counsel’s Rule 604(d) certificate did not comply with the rule. We reverse and
     remand.

¶3                                       I. BACKGROUND
¶4       In February 2013, the State charged defendant with criminal sexual assault (720 ILCS
     5/12-13(a)(2) (West 2010) (text of section effective until July 1, 2011)) for his actions in
     February 2011. The State later added a second charge of criminal sexual abuse (720 ILCS
     5/12-15(a)(2) (West 2010) (text of section effective until July 1, 2011)) for defendant’s actions
     in February 2011. Defendant and the State entered into a plea agreement, under which
     defendant would plead guilty to the criminal-sexual-abuse charge with a sentence of 30
     months’ probation with 180 days in jail and the State would move to dismiss the
     criminal-sexual-assault charge. At the June 18, 2015, plea hearing, the trial court accepted the
     parties’ plea agreement and continued sentencing for defendant to obtain a sex-offender
     evaluation. On July 31, 2013, the court sentenced defendant in accordance with the terms of
     the plea agreement and dismissed the criminal-sexual-assault charge.
¶5       On August 20, 2013, defendant filed a timely pro se motion to withdraw his guilty plea,
     asserting his right to a speedy trial was violated. Defense counsel also filed a motion to
     withdraw defendant’s guilty plea, which incorporated defendant’s speedy-trial argument. On
     October 23, 2013, the trial court held a hearing on defendant’s postplea motion, and defense
     counsel filed the Rule 604(d) certificate at issue in this appeal. At the conclusion of the
     hearing, the court denied defendant’s postplea motion.
¶6       On October 25, 2013, defendant filed a timely notice of appeal in sufficient compliance
     with Illinois Supreme Court Rule 606 (eff. Feb. 6, 2013). Accordingly, this court has
     jurisdiction under Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013).

¶7                                           II. ANALYSIS
¶8       On appeal, defendant’s sole argument is his counsel’s Rule 604(d) certificate is deficient
     because it fails to show counsel consulted with defendant about his contentions of error related
     to both his guilty plea and sentence. Due to the deficiency, defendant asserts he is entitled to a
     remand for new postplea proceedings. The State contends defense counsel’s Rule 604(d)
     certificate was not deficient, and if it was, remand is not warranted. We review de novo the
     question of whether defense counsel complied with Rule 604(d). People v. Grice, 371 Ill. App.
     3d 813, 815, 867 N.E.2d 1143, 1145 (2007).
¶9       Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013) provides, in pertinent part, the
     following:

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                “The defendant’s attorney shall file with the trial court a certificate stating that the
                attorney has consulted with the defendant either by mail or in person to ascertain
                defendant’s contentions of error in the sentence or the entry of the plea of guilty, 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.” (Emphasis added.)
       In People v. Tousignant, 2014 IL 115329, ¶ 20, 5 N.E.3d 176, our supreme court held that, in
       the above context, “the word ‘or’ is considered to mean ‘and.’ ” It further explained that,
       “[u]nder this reading, counsel is required 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.) Tousignant, 2014 IL 115329, ¶ 20, 5 N.E.3d 176. The aforementioned
       reading applies even when the defendant files only one type of postplea motion. Tousignant,
       2014 IL 115329, ¶ 21, 5 N.E.3d 176. In his special concurrence, Justice Thomas emphasized
       the need for Rule 604(d) to be amended because, without such, “the rule will continue to create
       confusion, and we will not know with any degree of certainty which attorneys are complying
       and which are not.” Tousignant, 2014 IL 115329, ¶ 27, 5 N.E.3d 176 (Thomas, J., specially
       concurring). Despite its decision in Tousignant and an amendment to a different part of Rule
       604(d), the supreme court has not amended the “or” addressed in Tousignant. See Ill. S. Ct. R.
       604(d) (eff. Dec. 11, 2014).
¶ 10        Since the Tousignant decision, the Second District has addressed a certificate’s compliance
       with Rule 604(d) where the certificate recited the verbatim language of Rule 604(d). People v.
       Mineau, 2014 IL App (2d) 110666-B, 19 N.E.3d 633. The Second District found that, since
       “or” means “and” for purposes of Rule 604(d) certificates, a counsel’s certificate that uses “or”
       literally complies. Mineau, 2014 IL App (2d) 110666-B, ¶ 18, 19 N.E.3d 633. The Mineau
       court reasoned “[n]othing in Tousignant demonstrates an intention to change the rule’s literal
       language or to change what a certificate must state.” Mineau, 2014 IL App (2d) 110666-B,
       ¶ 18, 19 N.E.3d 633. Moreover, it noted that, in his special concurrence, Justice Thomas
       implicitly found using “or” complied with the rule as currently written. Mineau, 2014 IL App
       (2d) 110666-B, ¶ 19, 19 N.E.3d 633. Last, on the facts of that case, the Second District pointed
       out that, since defense counsel filed a motion to withdraw the defendant’s plea or, in the
       alternative, to reconsider his sentence, it could reasonably be inferred counsel consulted with
       the defendant about both types of error. Mineau, 2014 IL App (2d) 110666-B, ¶ 18, 19 N.E.3d
       633.
¶ 11        Recently, the Third District has disagreed with the Second District’s holding that a
       verbatim recital of the rule complies with Rule 604(d)’s certificate requirement. People v.
       Scarbrough, 2015 IL App (3d) 130426, ¶ 39, pet. for leave to appeal pending, No. 119564
       (filed July 21, 2015). Like Justice Thomas in his special concurrence in Tousignant, the Third
       District explained the verbatim language of Rule 604(d) does not explicitly identify what
       defense counsel actually did during the postplea proceedings. See Scarbrough, 2015 IL App
       (3d) 130426, ¶ 38. It concluded a Rule 604(d) certificate must specify what counsel actually
       did to achieve compliance with the rule. Scarbrough, 2015 IL App (3d) 130426, ¶ 39. While it
       found a certificate’s verbatim recitation of the language in Rule 604 was technically
       noncompliant with the rule, the Third District did not remand the cause for new postplea
       proceedings because the defendant did not raise a “claim of omitted legal contentions or of
       prejudice.” Scarbrough, 2015 IL App (3d) 130426, ¶ 41.


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¶ 12       In this case, the Rule 604(d) certificate states, in pertinent part, the following: “Consulted
       with the defendant in person to ascertain his contentions of error in the sentence or the entry of
       the plea of guilty.” Thus, like the reviewing courts in Mineau and Scarbrough, we must
       address whether a certificate that tracks the verbatim language of Rule 604(d) is compliant
       with Rule 604(d) in light of the supreme court’s decision in Tousignant.
¶ 13       Usually, as the Second District has recognized, the utilization of a rule’s exact language is
       the best way to comply with a rule’s requirement. See People v. Herrera, 2012 IL App (2d)
       110009, ¶ 14, 970 N.E.2d 1219 (stating that using the rule’s language verbatim “is the better
       practice”). However, the Tousignant decision declared the general disjunctive meaning of the
       word “or” in Rule 604(d) did not apply in that context and, in fact, “or” meant the conjunctive
       “and.” Tousignant, 2014 IL 115329, ¶ 20, 5 N.E.3d 176. Since Tousignant did not apply the
       ordinary meaning of “or,” the use of the word “or” in a Rule 604(d) certificate does not really
       indicate what counsel actually did regarding the ascertainment of contentions of error related
       to both the defendant’s guilty plea and sentence. See Tousignant, 2014 IL 115329, ¶ 27, 5
       N.E.3d 176 (Thomas, J., specially concurring); Scarbrough, 2015 IL App (3d) 130426, ¶ 38.
       Moreover, contrary to Mineau and the State’s argument, the supreme court did indicate its
       intent to change what a Rule 604(d) certificate must state when it declared “counsel is required
       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.) Tousignant, 2014
       IL 115329, ¶ 20, 5 N.E.3d 176. While the supreme court has not amended Rule 604(d) to be
       consistent with its holding in Tousignant, we will not overlook the aforementioned directive
       given by the Tousignant majority. Accordingly, we agree with the Third District in Scarbrough
       that a Rule 604(d) certificate, which uses Rule 604(d)’s verbatim language with the “or,” does
       not precisely show compliance with Rule 604(d) as explained by our supreme court in
       Tousignant.
¶ 14       While we agree with the Third District’s interpretation of Tousignant, we find remand for
       strict compliance with Tousignant is appropriate.

¶ 15                                    III. CONCLUSION
¶ 16       For the reasons stated, we reverse the Champaign County circuit court’s denial of
       defendant’s motion to withdraw his guilty plea and remand for proceedings in strict
       compliance with Rule 604(d)’s requirements as explained by our supreme court in Tousignant
       and this opinion.

¶ 17      Reversed and remanded.




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