                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Gabrys, 2013 IL App (3d) 110912




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    RICHARD GABRYS, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-11-0912


Filed                      November 14, 2013


Held                        The denial of defendant’s motions to withdraw his guilty plea to criminal
(Note: This syllabus       damage to property was reversed and the cause was remanded with
constitutes no part of     directions to allow defense counsel to file a new Supreme Court Rule
the opinion of the court   604(d) certificate and to allow the opportunity for the filing of a new
but has been prepared      motion to withdraw defendant’s guilty plea, if necessary, and a new
by the Reporter of         hearing on the motion to withdraw the guilty plea, since defense
Decisions for the          counsel’s filing of her Rule 604(d) certificate after defendant’s notice of
convenience of the         appeal from the denial of his motions to withdraw his guilty plea was
reader.)
                           filed did not strictly comply with Rule 604(d).



Decision Under             Appeal from the Circuit Court of Will County, No. 07-CF-2471; the Hon.
Review                     Amy Bertani-Tomczak, Judge, presiding.



Judgment                   Judgments vacated; remanded with directions.
Counsel on                 Benjamin A. Wolowski (argued), of State Appellate Defender’s Office,
Appeal                     of Chicago, for appellant.

                           James W. Glasgow, State’s Attorney, of Joliet (Robert M. Hansen
                           (argued), of State’s Attorneys Appellate Prosecutor’s Office, of counsel),
                           for the People.


Panel                      JUSTICE CARTER delivered the judgment of the court, with opinion.
                           Justices McDade and Schmidt concurred in the judgment and opinion.




                                            OPINION

¶1          The defendant, Richard Gabrys, pled guilty to criminal damage to property (720 ILCS
        5/21-1(1)(a) (West 2006)) and was sentenced to 24 months of probation and 180 days in jail.
        On appeal, the defendant argues that: (1) the circuit court erred when it denied his motions
        to withdraw his guilty plea because defense counsel labored under a conflict of interest when
        representing the defendant on his motions; and (2) defense counsel failed to strictly comply
        with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006). We vacate the circuit court’s
        judgments on the motions to withdraw the guilty plea and remand with directions.

¶2                                             FACTS
¶3          On January 4, 2008, the defendant was charged by indictment with three counts of Class
        4 felony criminal damage to property (720 ILCS 5/21-1(1)(a) (West 2006)) and one count
        of Class A misdemeanor criminal damage to property (720 ILCS 5/21-1(1)(a) (West 2006)).
        The indictment alleged that on four separate occasions in 2007, the defendant damaged a
        backyard lawn, a front door, a garage door, and a gas grill belonging to Donald Gasparic.
¶4          In June 2008, the defendant, through counsel, filed a motion to suppress statements the
        defendant made to police. The defendant made these statements at the hospital on October
        28, 2007, where he was being treated for three gunshot wounds inflicted by Gasparic. The
        motion alleged that the defendant was on at least seven medications, including morphine, at
        the time he gave those statements.
¶5          Several public defenders appeared on behalf of the defendant during the pendency of
        pretrial matters. Assistant Public Defender Shenonda Tisdale first appeared on September
        23, 2009. It appears from the record that from that date forward, Tisdale was the defendant’s
        attorney.
¶6          After a hearing was held on the defendant’s motion to suppress, the circuit court granted
        the motion on February 15, 2011.

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¶7         On April 11, 2011, the case was called for trial. The State informed the circuit court that
       it was dropping all charges except one charge of Class 4 criminal damage to property. After
       a recess, defense counsel told the court that the defendant decided to plead guilty to the one
       count of Class 4 criminal damage to property. She stated that there was no plea agreement.
¶8         During guilty-plea admonishments, the court asked the defendant if he was on any
       medications. The defendant stated he was on medication for anxiety and depression, and that
       he took another medication to help him sleep. The defendant said that those medications did
       not affect his ability to communicate with defense counsel or understand the court.
¶9         When the court asked the State for a factual basis, the State said that the defendant
       poured gasoline on Gasparic’s backyard lawn, causing more than $300 but less than $10,000
       damage. The defendant clarified that he poured a mixture of old oil and diesel fuel on the
       lawn.
¶ 10       Also during admonishments, the State informed the court that part of the agreement was
       that it would not charge the defendant with anything arising from phone calls the defendant
       had made to the victim. After admonishments, the court accepted the defendant’s guilty plea.
¶ 11       On May 4, 2011, defense counsel filed a motion to withdraw the defendant’s guilty plea,
       which stated only that “the Defendant wishes to withdraw his guilty plea.” Also filed on May
       4, 2011, was a letter from the defendant to Judge Amy Bertani-Tomczak, in which the
       defendant stated:
           “I want to vacate my plea of guilty. I was under undue amount of stress from anxiety.
           Issues related to this case. I take this situation very serious the public defender promised
           me she would meet with me prior to the court date of 4-11-11 at her office. There was
           no meeting. I did not have a problem with her until this court date of 4-11-11 then I felt
           I was behind the 8-ball, rush, rush, rush, when we had ample time to prepare. I need to
           know. What to do now I contacted the public defenders office she has not called me back
           yet as of 4-12-11. Please judge I have a defense I need to know what to do. This felony
           charge is very stressful it will follow me forever I sorry for putting the courts through this
           but I couldn’t think well. My thought process was altered.”
¶ 12       On June 29, 2011, defense counsel informed the court that the defendant wanted to
       withdraw his guilty plea because he did not commit the crime; the defendant told defense
       counsel that there was another person involved that he had not previously mentioned. The
       court acknowledged the note sent to the court by the defendant, then continued the case for
       defense counsel to talk to the defendant and to decide whether to file an amended motion.
¶ 13       When the case was called again on July 6, 2011, defense counsel told the court that the
       defendant gave her the name Jose Hernandez as the other individual, but the phone number
       the defendant gave led to no one by that name. Defense counsel also told the court that the
       defendant wanted to withdraw his plea in part because he felt rushed when making the
       decision to plead guilty. Further, in reference to the defendant’s letter to the court, defense
       counsel stated:
           “He said something about a meeting that we were supposed to have prior to the trial date.
           Your Honor, he represents to me that I told him that we would meet before the trial date
           and maybe I did, maybe I didn’t, I don’t recall. The meeting did not happen, but I have

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           met with Mr. Gabrys a tremendous amount of times.”
       At the close of the hearing, the court stated that the case had been on the court’s docket since
       2007 and that it was common for people to feel uncomfortable when the time came for trial.
       The court also stated, “you understood the terms of the plea and I found you haven’t met your
       burden. I’m going to deny your motion to withdraw your guilty plea.”
¶ 14       On November 2, 2011, the circuit court sentenced the defendant to 24 months of
       probation and 180 days in jail for Class 4 felony criminal damage to property.
¶ 15       On November 29, 2011, defense counsel filed a second motion to withdraw the
       defendant’s guilty plea in which she stated that the defendant wanted to withdraw his plea
       because he did not believe the State could prove that he damaged Gasparic’s property in
       excess of $300, which was an element of the crime for which he pled guilty.
¶ 16       On December 8, 2011, the circuit court held a hearing on the defendant’s second motion
       to withdraw his guilty plea. At the hearing, defense counsel acknowledged getting estimates
       in excess of $300 to repair the damage caused to the lawn. Defense counsel also said that the
       defendant did not tell her until after he pled guilty that the damage to the lawn was
       preexisting. At the close of the hearing, the court denied the defendant’s motion, and the
       defendant filed a notice of appeal from that decision on the same day. Four days later, on
       December 12, 2011, defense counsel filed a certificate pursuant to Supreme Court Rule
       604(d).

¶ 17                                          ANALYSIS
¶ 18       On appeal, the defendant argues first that the circuit court erred when it denied his
       motions to withdraw his guilty plea because defense counsel labored under a conflict of
       interest. Specifically, the defendant claims that because he suggested that defense counsel
       was ineffective for failing to meet with him and for failing to discover his potential defenses
       to the charge, defense counsel had a conflict of interest when arguing the motions.
¶ 19       We review the circuit court’s decision on the defendant’s motion to withdraw his guilty
       plea under the abuse of discretion standard. People v. Jamison, 197 Ill. 2d 135, 163 (2001).
¶ 20       Initially, we note that the defendant advances an argument on this issue that a per se
       conflict arose due to his allegations of defense counsel’s ineffectiveness and that defense
       counsel should have withdrawn at that point. While we agree with the defendant that the
       allegations he made–that defense counsel failed to meet with him prior to the day on which
       he pled guilty and that he had a defense–were adequate to raise an issue of defense counsel’s
       effectiveness, we disagree that a per se conflict arose in this case. “A per se conflict arises
       where defense counsel has a tie to a person or entity which would benefit from an
       unfavorable verdict for the defendant.” People v. Janes, 168 Ill. 2d 382, 387 (1995); see also
       People v. Hernandez, 231 Ill. 2d 134, 143-44 (2008) (identifying three situations in which
       per se conflicts arise in the ineffective assistance context). No such allegation was made in
       this case and we hold that no per se conflict arose from the defendant’s allegations. See
       People v. Perkins, 408 Ill. App. 3d 752, 762 (2011) (“[a] per se conflict of interest does not
       exist merely because a defense attorney’s competence is questioned by his client during
       posttrial proceedings; rather, the underlying allegations of incompetence determine whether

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       an actual conflict of interest exists”).
¶ 21        Furthermore,
            “New counsel is not automatically required in every case in which a defendant presents
            a pro se posttrial motion alleging ineffective assistance of counsel. Rather, when a
            defendant presents a pro se posttrial claim of ineffective assistance of counsel, the trial
            court should first examine the factual basis of the defendant’s claim. If the trial court
            determines that the claim lacks merit or pertains only to matters of trial strategy, then the
            court need not appoint new counsel and may deny the pro se motion. However, if the
            allegations show possible neglect of the case, new counsel should be appointed.” People
            v. Moore, 207 Ill. 2d 68, 78 (2003).
       This rule has been applied in the context of motions to withdraw a guilty plea as well. See,
       e.g., People v. Dean, 2012 IL App (2d) 110505, ¶ 15; People v. Cabrales, 325 Ill. App. 3d
       1, 5 (2001); People v. Allen, 391 Ill. App. 3d 412, 419 (2009) (involving a pro se motion
       alleging ineffective assistance, but also citing Cabrales and noting that had the allegations
       been made in a motion to withdraw a guilty plea, Moore’s preliminary inquiry would apply).
¶ 22        Our review of the record in this case reveals that the circuit court inquired into the
       allegations the defendant made in his pro se filing. With regard to the allegation that he had
       a defense, on June 29, 2011, defense counsel told the court that the defendant maintained he
       did not commit the crime and that another person was present. The court continued the case
       for defense counsel to talk to the defendant and to determine whether an amended motion
       was required.
¶ 23        On July 6, 2011, defense counsel told the court that the name and phone number the
       defendant gave her turned up no one. Also on that date, with regard to the allegation that
       defense counsel did not meet with the defendant, defense counsel told the court that she did
       not recall if she told the defendant that they would meet before the trial date, but that she had
       met with the defendant “a tremendous amount of times.” The court also addressed the
       defendant’s claim that he felt rushed into pleading guilty, noting that the case had been active
       for a long time and that it was common for people to feel uncomfortable around the time for
       trial. After inquiring into these allegations and considering the allegation made in defense
       counsel’s motion to withdraw the guilty plea, the court found that “you understood the terms
       of the plea and I found you haven’t met your burden. I’m going to deny your motion to
       withdraw your guilty plea.” In denying the motion, the court indicated that it felt no further
       action was necessary on the defendant’s allegations. We hold that this inquiry was adequate
       under Moore. See Dean, 2012 IL App (2d) 110505, ¶ 15 (noting that although the circuit
       court did not expressly indicate that it was conducting a Moore inquiry, the court was in fact
       conducting such an inquiry, and noting that there is no requirement that the court expressly
       so state).
¶ 24        Under these circumstances, we hold that defense counsel did not labor under a conflict
       of interest when arguing the motions to withdraw the defendant’s guilty plea. Because the
       defendant levies no other attack upon the circuit court’s rulings on the motions to withdraw
       his guilty plea, we hold that the court did not abuse its discretion when it denied those
       motions.


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¶ 25        The defendant’s second argument on appeal is that defense counsel failed to strictly
       comply with Rule 604(d). The defendant requests that we remand the case for a new Rule
       604(d) hearing.
¶ 26        In relevant part, Rule 604(d) provides:
            “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.” Ill. S. Ct. R. 604(d).
       Defense counsel must strictly comply with Rule 604(d). People v. Janes, 158 Ill. 2d 27, 33
       (1994). “In general, strict compliance with the attorney certification component of Rule
       604(d) means the certificate must be filed in the trial court, rather than on appeal ***. The
       filing should precede or be simultaneous with the hearing in the trial court.” People v.
       Shirley, 181 Ill. 2d 359, 371 (1998). Whether a supreme court rule has been complied with
       presents a question of law that we review under the de novo standard. People v. Dismuke,
       355 Ill. App. 3d 606, 608 (2005).
¶ 27        Initially, it is important to note the significance of the fact that defense counsel filed two
       motions to withdraw the guilty plea. The first motion was filed prior to sentencing, which
       is a procedure that does not comply with Rule 604(d) and does not create a right to appeal
       from the judgment. People v. Marquez, 2012 IL App (2d) 110475, ¶ 4. To create a right to
       appeal, defense counsel had to renew her premature motion. Marquez, 2012 IL App (2d)
       110475, ¶ 4. She created a right to appeal by filing a second motion after sentencing. With
       regard to complying with Rule 604(d)’s certificate requirement, had she filed it with her first,
       premature motion to withdraw the guilty plea, that certificate would not have complied with
       Rule 604(d). Marquez, 2012 IL App (2d) 110475, ¶ 8. She also failed to file a certificate with
       her second motion to withdraw the guilty plea, however, and thereby failed to strictly comply
       with Rule 604(d)’s requirement that the certificate be filed before or simultaneously with the
       hearing on the second motion. See Shirley, 181 Ill. 2d at 371.
¶ 28        We acknowledge that two reported decisions from other districts of the appellate court
       have held that respective defense counsel strictly complied with Rule 604(d) even though
       neither filed his or her Rule 604(d) certificate before or simultaneously with the hearings held
       in those cases. People v. Travis, 301 Ill. App. 3d 624, 625-27 (1998) (certificate filed one day
       before notice of appeal was filed, but after postplea motions were heard and denied); People
       v. Grace, 365 Ill. App. 3d 508, 510-12 (2006) (certificate filed after notice of appeal).
       However, not only are we are not bound by these decisions (see, e.g., People v. Damkroger,
       408 Ill. App. 3d 936, 944 (2011) (holding that one district of the appellate court is not bound
       to follow decisions of other districts)), but we also disagree with their interpretations of
       Janes and its progeny.
¶ 29        Travis was the basis for the Grace court’s decision (Grace, 365 Ill. App. 3d at 512), so
       our commentary begins there. The Travis decision appears to be based on Shirley’s language
       that the certificate must be filed in the circuit court and should occur before or


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       simultaneously with the hearing on the relevant motion, as the court held that other than the
       timeliness issue, defense counsel’s certificate complied with Rule 604(d). Travis, 301 Ill.
       App. 3d at 626-27. We decline to adopt this rationale, however, especially given our supreme
       court’s statement in Shirley that compliance with the “procedure will insure that the trial
       court, in considering a defendant’s motion to withdraw his or her guilty plea or to reduce
       sentence, will be apprised that defense counsel has reviewed the proceedings with the
       defendant and prepared any necessary amendments to the motion” (Shirley, 181 Ill. 2d at
       371). If the certificate is not filed until after the hearing, then the assurances referred to by
       the Shirley court can reasonably be questioned.
¶ 30       Moreover, we also reject the Travis court’s alternative basis for its ruling, which was that
       the defendant made no attempt to argue how defense counsel’s failure to timely file the
       certificate affected the outcome of the proceedings or the defendant’s rights, or how the
       certificate did not substantively comply with Rule 604(d). In our opinion, these concerns are
       wholly irrelevant to the strict compliance requirement, and the Travis court’s mention of
       them as a potential basis for its decision runs afoul of Shirley, including the conclusion the
       Travis court derived from those concerns that “[b]ased on the record on appeal, this court
       concludes that if any error occurred in this cause, such error was harmless” (Travis, 301 Ill.
       App. 3d at 627). As our supreme court stated in Shirley:
           “We observed, in Janes[, 158 Ill. 2d 27], that after this court’s ruling in [People v. Wilk,
           124 Ill. 2d 93 (1988)], the appellate court adhered to the strict compliance mandate and
           renounced the prior practice of determining whether errors in failing to comply with Rule
           604(d) were harmless or prejudicial. See, e.g., People v. Hayes, 195 Ill. App. 3d 957,
           960-61 (1990). We reaffirm the reasoning and disposition of these cases which have
           faithfully followed the strict compliance standard.” Shirley, 181 Ill. 2d at 370-71.
¶ 31       In sum, we hold that defense counsel’s filing of her Rule 604(d) certificate after the
       notice of appeal was filed did not strictly comply with Rule 604(d). To comply with Rule
       604(d), defense counsel would have had to file her Rule 604(d) certificate before or
       simultaneously with the hearing on the second motion to withdraw the guilty plea. See
       Marquez, 2012 IL App (2d) 110475, ¶¶ 7-8 (holding that, in a case in which two motions to
       withdraw a guilty plea were filed, a certificate filed before sentencing does not strictly
       comply with Rule 604(d)).
¶ 32       The remedy for defense counsel’s failure to strictly comply with Rule 604(d) is as
       follows:
           “[W]hen defense counsel neglects to file a Rule 604(d) certificate, the appropriate
           remedy is a remand for (1) the filing of a Rule 604(d) certificate; (2) the opportunity to
           file a new motion to withdraw the guilty plea ***, if counsel concludes that a new motion
           is necessary; and (3) a new motion hearing.” People v. Lindsay, 239 Ill. 2d 522, 531
           (2011).
       Thus, we remand this case for further proceedings as defined by our supreme court in
       Lindsay.




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¶ 33                                     CONCLUSION
¶ 34       The judgments of the circuit court of Will County that denied the defendant’s motions
       to withdraw his guilty plea are vacated, and the case is remanded with directions. Defense
       counsel must file a Rule 604(d) certificate and be given the opportunity to file a new motion
       to withdraw the guilty plea on behalf of the defendant, if necessary, and the circuit court must
       conduct a new hearing on the motion to withdraw the guilty plea.

¶ 35       Judgments vacated; remanded with directions.




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