                           ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Richard, 2012 IL App (5th) 100302




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


District & No.             Fifth District
                           Docket No. 5-10-0302


Rule 23 Order filed        May 7, 2012
Motion to publish
granted                    June 7, 2012
Held                       The order denying defendant’s motion to withdraw his guilty plea to first-
(Note: This syllabus       degree murder was vacated and the cause was remanded for compliance
constitutes no part of     with the certification requirement of Supreme Court Rule 604(d), since
the opinion of the court   the certification filed by defendant’s counsel stating that he ascertained
but has been prepared      defendant’s “contentions of deprivation of constitutional rights” was
by the Reporter of         insufficient to satisfy the requirement of Rule 604(d) that counsel
Decisions for the          ascertain “defendant’s contentions of error in the sentence or the entry of
convenience of the         the plea of guilty,” especially when there was no evidence that defense
reader.)
                           counsel ascertained defendant’s nonconstitutionally based contentions of
                           error.


Decision Under             Appeal from the Circuit Court of St. Clair County, No. 05-CF-73; the
Review                     Hon. Annette A. Eckert, Judge, presiding.



Judgment                   Vacated and remanded.
Counsel on                 Michael J. Pelletier, Johannah B. Weber, and Dan W. Evers, all of State
Appeal                     Appellate Defender’s Office, of Mt. Vernon, for appellant.

                           Brendan Kelly, State’s Attorney, of Belleville (Patrick Delfino, Stephen
                           E. Norris, and Patrick D. Daly, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE WELCH delivered the judgment of the court, with opinion.
                           Justices Goldenhersh and Chapman concurred in the judgment and
                           opinion.




                                              OPINION

¶1          This case comes before us on the denial of the defendant’s motion to withdraw his
        negotiated plea of guilty and the circuit court’s refusal to rule on the defendant’s oral motion
        to reconsider his sentence. On appeal, the defendant argues that the certification requirement
        of Illinois Supreme Court Rule 604(d) (eff. July 1, 2006) was not met and that the circuit
        court of St. Clair County erred in refusing to rule on his motion to reconsider his sentence.
        For the reasons that follow, we vacate the order denying the motion to withdraw the guilty
        plea and remand for compliance with the certification requirement of Rule 604(d).
¶2          On January 14, 2005, the defendant was charged with one count of first-degree murder
        in violation of section 9-1(a)(1) of the Criminal Code of 1961 (720 ILCS 5/9-1(a)(1) (West
        2004)). The charge alleged that the defendant shot Ronald Curtis in the chest with a gun with
        the intent to kill on December 29, 2004. An indictment charging the same offense was filed
        on February 4, 2005.
¶3          The State filed a notice of intent to seek an enhanced sentence of natural-life
        imprisonment pursuant to section 5-8-1(a)(1) of the Unified Code of Corrections (730 ILCS
        5/5-8-1(a)(1) (West 2004)). Subsequently, the defendant entered into a negotiated plea of
        guilty to the charge of murder in the first degree. In exchange for the defendant’s guilty plea,
        the State withdrew its notice of intent to seek an enhanced sentence and capped its requested
        sentence at 55 years’ imprisonment, 5 years below the maximum possible sentence. The
        court sentenced the defendant to 55 years’ imprisonment.
¶4          The defendant then filed a motion to withdraw his guilty plea, arguing that his plea was
        not free and voluntary, the court was biased against him, and his sentence had been
        predetermined. The motion was denied and the defendant appealed. This court remanded for
        compliance with the certification requirement of Illinois Supreme Court Rule 604(d) (eff.
        July 1, 2006). People v. Richard, No. 5-07-0004 (2008) (unpublished summary order under
        Supreme Court Rule 23(c)(2)). The defendant was assisted by different counsel on remand.

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¶5        On May 15, 2009, defense counsel filed an amended motion to withdraw the defendant’s
     guilty plea along with a Rule 604(d) certificate of compliance. A second amended motion
     and certificate were filed on June 4, 2009, and a third amended motion and certificate were
     filed on March 24, 2010. The third amended certificate provided:
              “2. That I have examined the entire record of the plea, sentencing, Motion to
          Withdraw Plea of Guilty and Appellate Court Decision.
              3. That I have made any amendments in the Third Amended Motion to Withdraw
          Plea of Guilty and to the Amended Motion to Withdraw Plea of Guilty, filed pro-se, that
          are necessary for adequate presentation of Defendant’s contentions.
              3. [sic] That I have made any amendments to the Amended Motion to Withdraw Plea
          of Guilty, filed pro se, that are necessary for adequate presentation of Defendant’s
          contentions.
              4. That I consulted with Defendant by correspondence to him dated September 5,
          2008, December 31, 2008, January 15, 2009, and April 29, 2009 to ascertain his
          contentions of deprivation of constitutional rights.
              5. That I reviewed correspondence from Defendant dated September 30, 2008, and
          April 28, 2009 to ascertain his contentions of deprivation of constitutional right.
              6. That I met with Defendant personally on November 19, 2008, and February 17,
          2010 to ascertain his contentions of deprivation of constitutional rights.
              7. That this certificate is in compliance with Supreme Court Rule 604(d).”
¶6        An evidentiary hearing on the third amended motion to withdraw the plea of guilty was
     held on June 3, 2010. In addition to arguing the merits of the motion to withdraw, defense
     counsel orally requested that the defendant’s sentence be reconsidered. The court denied the
     motion to withdraw the plea of guilty and stated that it did not have the authority to rule on
     the motion to reconsider the sentence. The defendant appeals.
¶7        The defendant makes two arguments on appeal: (1) that counsel’s third certification did
     not meet the requirements of Rule 604(d) and (2) that the circuit court erred in declaring that
     it did not have authority to rule on the motion to reconsider the sentence. We will address
     these issues in turn.
¶8        The defendant claims that counsel’s Rule 604(d) certificate was defective in three ways.
     First, the defendant argues that counsel’s certification that he ascertained the defendant’s
     “contentions of deprivation of constitutional rights” does not meet the rule’s requirement that
     the “defendant’s contentions of error in the sentence or the entry of the plea of guilty” be
     ascertained (Ill. S. Ct. R. 604(d) (eff. July 1, 2006)). Second, the defendant argues that
     counsel’s representation that he reviewed “the entire record of the plea, sentencing, Motion
     to Withdraw Plea of Guilty and Appellate Court Decision” is insufficient to meet the rule’s
     requirement that counsel examine “the trial court file and report of proceedings of the plea
     of guilty” (Ill. S. Ct. R. 604(d) (eff. July 1, 2006)). Third, the defendant argues that
     presentation of “Defendant’s contentions” does not meet the rule’s requirement that counsel
     present “any defects in those proceedings” (Ill. S. Ct. R. 604(d) (eff. July 1, 2006)). In
     response, the State argues that while the certificate does not recite the language of Rule


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       604(d) verbatim, the requirements of the rule have been met.
¶9          Supreme Court Rule 604(d) requires the filing of a certificate by postplea counsel stating
       that counsel “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) (eff. July 1, 2006). Adequacy of a Rule 604(d) certificate
       is reviewed de novo. People v. Grice, 371 Ill. App. 3d 813, 815 (2007).
¶ 10        Rule 604(d)’s certification requirement acts as a basis upon which the court can
       determine whether counsel performed the duties set forth by the rule. People v. Starks, 344
       Ill. App. 3d 766, 769-70 (2003). “By promulgating Rule 604(d), the Supreme Court of
       Illinois has already determined the required content of the certificate, and it is the duty of this
       court–and the trial courts–to ensure that this supreme court mandate is followed.” Grice, 371
       Ill. App. 3d at 816. Counsel must strictly comply with Rule 604(d). People v. Janes, 158 Ill.
       2d 27, 33 (1994). While strict compliance does not require that the language of the rule be
       recited verbatim in the certificate, some indication must be presented that counsel performed
       the duties required under the rule. People v. Dismuke, 355 Ill. App. 3d 606, 609 (2005). This
       court cannot simply assume or infer compliance with Rule 604(d), because any issue not
       raised in the motion to withdraw the guilty plea or motion to reconsider the sentence is
       waived. Ill. S. Ct. R. 604(d) (eff. July 1, 2006); People v. Prather, 379 Ill. App. 3d 763, 768
       (2008). “[A] waste of judicial resources occurs when, as a result of an attorney’s deficient
       certificate, an appellate court must scour through the record to determine whether that
       attorney actually complied with Rule 604(d) ***.” Dismuke, 355 Ill. App. 3d at 609. Remand
       is required where counsel fails to strictly comply with the requirements of Rule 604(d).
       Prather, 379 Ill. App. 3d at 768.
¶ 11        The defendant first argues that counsel’s certification that he ascertained the defendant’s
       “contentions of deprivation of constitutional rights” is insufficient to meet Rule 604(d)’s
       requirement that counsel ascertain “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)). We agree with the
       defendant.
¶ 12        Rule 604(d) requires that counsel determine the defendant’s contentions of error in the
       sentence or the plea of guilty; the rule does not require that those claims impact the
       defendant’s constitutional rights. While arguments are made that each of the defendant’s
       claims of error in the sentence and the entry of the plea of guilty in the instant case has a
       constitutional basis, thus making counsel’s certification sufficient, this circumvents the
       purpose of Rule 604(d).
¶ 13        In People v. Prather, 379 Ill. App. 3d 763 (2008), the Fourth District held that counsel’s
       certification that he ascertained the defendant’s contention of “error and sentence” was
       insufficient to meet the requirements of Rule 604(d). 379 Ill. App. 3d at 768. “The statement
       that counsel ascertained defendant’s contention of ‘error and sentence’ may have omitted
       words intending ‘error in the guilty plea and sentence’ or may have mistyped a word
       intending ‘error in sentence.’ We cannot be sure therefore whether counsel ascertained


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       defendant’s contentions of error in the guilty plea hearing as well as in the sentence.” 379 Ill.
       App. 3d at 768.
¶ 14        In the instant case, there is no evidence in the certificate, motion, or record that counsel
       ascertained the defendant’s nonconstitutionally based contentions of error in the sentence or
       the entry of the plea of guilty. Thus, it is not clear that counsel ascertained the defendant’s
       contentions of error in the sentence and entry of the plea of guilty and then determined that
       all of those contentions had constitutional bases.
¶ 15        Because Rule 604(d) requires strict compliance and because that compliance is visible
       neither on the face of the certification nor in our review of the record, we find the
       certification to be insufficient to meet the requirement of Rule 604(d). Counsel must make
       clear to the court that he ascertained the defendant’s contentions of error in sentence or the
       entry of the plea of guilty; it is not this court’s duty to determine whether, because of
       counsel’s poor terminology, an argument could be made that a certificate is sufficient. See
       Prather, 379 Ill. App. 3d at 768. As such, we find the counsel’s third certification to be
       insufficient to meet the requirements of Rule 604(d).
¶ 16        Accordingly, we vacate the circuit court’s judgment regarding Rule 604(d) compliance
       and remand for compliance with the certification requirement of Rule 604(d). We decline the
       opportunity to address the two additional Rule 604(d) arguments made by the defendant on
       appeal. In so doing, however, we do not intend to imply that the remainder of counsel’s Rule
       604(d) certificate is satisfactory. We remand for (1) the filing of a new postplea motion (if
       the defendant so wishes), (2) a new hearing on the defendant’s postplea motion, and (3) strict
       compliance with Rule 604(d) requirements.
¶ 17        Next, we turn to the second issue on appeal. At the June 3, 2010, hearing, the circuit
       court ruled:
                “In this case, the Court does find that the State capped at 55 years, giving up five
            years. Pursuant to the rule, it is a negotiated plea. Pursuant to those rules also and the
            admonishment that this court gave, the Court cannot modify a sentence after there is a
            negotiated plea of guilty, but rather the defendant must proceed with a motion to
            withdraw plea of guilty. That is what has been filed in this case. The Court can only
            consider that. Therefore, the motion to reduce the sentence or modify it in any way is
            denied.
                As to the motion to withdraw the plea of guilty, the Court has considered the
            transcript of the proceedings. The Court has considered the testimony today. The Court
            has considered the arguments of counsel and will deny the motion to withdraw the plea
            of guilty.”
¶ 18        On appeal, the defendant takes issue with the circuit court’s statement that “the Court
       cannot modify a sentence after there is a negotiated plea of guilty, but rather the defendant
       must proceed with a motion to withdraw plea of guilty.” The issue before us is whether a
       circuit court has the authority to reconsider a defendant’s negotiated-cap sentence when the
       guilty plea has not been successfully withdrawn. For the reasons that follow, we find that it
       does not.
¶ 19        Because the issue before us hinges on the construction of Supreme Court Rule 604(d),

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       the issue is reviewed de novo. People v. Drum, 194 Ill. 2d 485, 488 (2000). Rule 604(d)
       provides:
                “(d) Appeal by Defendant From a Judgment Entered Upon a Plea of Guilty. No
           appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant,
           within 30 days of the date on which sentence is imposed, files in the trial court a motion
           to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being
           challenged, a motion to withdraw the plea of guilty and vacate the judgment. No appeal
           shall be taken upon a negotiated plea of guilty challenging the sentence as excessive
           unless the defendant, within 30 days of the imposition of sentence, files a motion to
           withdraw the plea of guilty and vacate the judgment. For purposes of this rule, a
           negotiated plea of guilty is 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.” (Emphasis added.) Ill. S. Ct. R. 604(d) (eff. July 1, 2006).
¶ 20       In People v. Evans, 174 Ill. 2d 320 (1996), two defendants had entered into fully
       negotiated pleas whereby certain charges were dismissed and specific sentences were
       recommended. 174 Ill. 2d at 321-24. The defendants then sought to have their sentences
       reconsidered without withdrawing their guilty pleas. The defendants argued that the “motion
       to reconsider the sentence, if only the sentence is being challenged” language of Rule 604(d)
       supported their position. (Emphasis omitted.) (Internal quotation marks omitted.) 174 Ill. 2d
       at 328.
¶ 21       In finding the “motion-to-reconsider” language applicable only to open guilty pleas, the
       supreme court relied on contract law principles in plea bargaining. 174 Ill. 2d at 325-28.
       Because the defendants pled guilty in exchange for specific sentences, by later seeking to
       have their sentences reconsidered, the defendants were “seeking to hold the State to its part
       of the bargain while unilaterally modifying the sentences to which they had earlier agreed.”
       174 Ill. 2d at 327. The Evans court stated that to permit the defendants’ actions “would be
       to ‘encourage gamesmanship of a most offensive nature’ [citation].” 174 Ill. 2d at 327. The
       court also found that for a defendant to prevail in a challenge to a sentence imposed pursuant
       to a negotiated plea agreement, the defendant must (1) move to withdraw the guilty plea and
       vacate the judgment and (2) show that the granting of the motion is necessary to prevent a
       manifest injustice. 174 Ill. 2d at 332.
¶ 22       Evans was subsequently extended to partially negotiated pleas with sentencing caps in
       People v. Linder, 186 Ill. 2d 67 (1999). In Linder, the supreme court held that a defendant
       who pled guilty in exchange for dismissal of charges and a cap on the length of his sentence
       could not challenge the sentence via a motion to reconsider; instead, a motion to withdraw
       the guilty plea must first be filed. 186 Ill. 2d at 74. “By agreeing to plead guilty in exchange
       for a recommended sentencing cap, a defendant is, in effect, agreeing not to challenge any
       sentence imposed below that cap on the grounds that it is excessive.” 186 Ill. 2d at 74.
       “While the defendant may not like the sentencing court’s ultimate disposition, that is a risk
       he assumes as part of his bargain.” 186 Ill. 2d at 74.
¶ 23       In People v. Haley, 315 Ill. App. 3d 717 (2000), a defendant pled guilty in exchange for


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       the State’s dismissal of other charges and a recommended maximum sentence of 24 years’
       imprisonment. 315 Ill. App. 3d at 718. The circuit court accepted the defendant’s plea and
       sentenced him to 24 years’ imprisonment. 315 Ill. App. 3d at 718. The defendant filed a
       motion to withdraw his guilty plea, which was denied. 315 Ill. App. 3d at 718. The defendant
       then appealed, arguing that his sentence was excessive. 315 Ill. App. 3d at 718. The issue
       before the Third District was whether the defendant may appeal from a sentence imposed
       pursuant to a capped plea agreement after unsuccessfully moving to withdraw his guilty plea.
       315 Ill. App. 3d at 718. The Third District held that the defendant must first succeed in
       withdrawing his guilty plea before he could challenge the sentence entered pursuant to a
       negotiated cap. 315 Ill. App. 3d at 720. “[I]f the mere pro forma act of filing a motion to
       withdraw were all it took to repudiate a plea agreement and obtain review of the severity of
       a negotiated sentence, the supreme court would have accomplished very little in deterring the
       kind of ‘heads-I-win-tails-you-lose’ gamesmanship decried by the court in Evans.
       [Citation.]” (Emphasis in original.) 315 Ill. App. 3d at 720.
¶ 24        While Evans, Linder, and Haley involve supreme and appellate review of guilty pleas and
       sentences, their principles apply to the instant case. The main concern when a negotiated
       guilty plea is challenged is that each party receive the benefit of its bargain. Evans, 174 Ill.
       2d 320. Because of this concern, a sentence entered pursuant to a negotiated guilty plea
       cannot be directly challenged as excessive; instead, a motion to withdraw must first be filed.
       Evans, 174 Ill. 2d 320; Linder, 186 Ill. 2d 67. Not only must the motion to withdraw the
       negotiated plea be filed before the sentence can be challenged–it must be granted. Evans, 174
       Ill. 2d at 332; Haley, 315 Ill. App. 3d at 720. Thus, a defendant must succeed in withdrawing
       his negotiated plea before his sentence, entered within the terms of the agreed-upon cap, can
       be reviewed by any court.
¶ 25        The language of Rule 604(d) supports this finding. Rule 604(d) was amended after Haley
       to include the second and third sentences (in italics above), which relate to negotiated guilty
       pleas. Ill. S. Ct. R. 604(d) (eff. Nov. 1, 2000). The amended sentences codified the law
       previously promulgated by the supreme court, namely, that a sentence entered on a negotiated
       plea of guilty cannot be reconsidered without a motion to withdraw the guilty plea having
       first been filed. Evans, 174 Ill. 2d 320; Linder, 186 Ill. 2d 67. This stands in contrast to the
       previous version of the rule (which is now the rule’s first sentence), which appeared to allow
       a sentence to be reconsidered without the guilty plea first being withdrawn. This provision,
       however, was held to be limited to open guilty pleas. Evans, 174 Ill. 2d 320. Contrary to the
       defendant’s argument on appeal, nothing in the amended language of Rule 604(d) gives the
       circuit court authority to modify a sentence that was entered pursuant to a negotiated guilty
       plea without the court first granting a motion to withdraw the negotiated guilty plea.
¶ 26        Since the circuit court of St. Clair County denied the defendant’s motion to withdraw his
       negotiated guilty plea, it did not err in refusing to address the defendant’s motion to
       reconsider his sentence. To require the circuit court to expressly rule on a motion to
       reconsider his sentence when it has denied the defendant’s motion to withdraw his guilty plea
       is superfluous.
¶ 27        For the foregoing reasons, we vacate the order denying the motion to withdraw the guilty
       plea and remand for compliance with the certification requirement of Rule 604(d); no further

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       proceedings are required on the motion to reconsider the sentence.

¶ 28      Vacated and remanded.




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