                                       2017 IL App (1st) 152351

                                             No. 1-15-2351

                                    Opinion filed September 29, 2017 

                                                                                    Second Division


                                                IN THE


                                   APPELLATE COURT OF ILLINOIS


                                           FIRST DISTRICT



                                                          )
                                                               Appeal from the Circuit Court
                                                          )
     THE PEOPLE OF THE STATE OF ILLINOIS,                      of Cook County.
                                                          )
                                                          )
            Plaintiff-Appellee,
                                                          )
                                                               No. 15 DV 72265
                                                          )
     v.
                                                          )
                                                          )
     JEREMY GILLESPIE,                                         The Honorable
                                                          )
                                                               Michael R. Clancy,
                                                          )
            Defendant-Appellant.                               Judge, presiding.
                                                          )
                                                          )


            JUSTICE HYMAN delivered the judgment of the court, with opinion.
            Justices Pucinski and Mason concurred in the judgment and opinion.

                                                 OPINION

¶1          After pleading guilty to violating an order of protection, Jeremy Gillespie then moved to

     withdraw his guilty plea. His counsel certified under Illinois Supreme Court Rule 604(d) (eff.

     Dec. 11, 2014) that counsel had consulted with Gillespie on the guilty plea; however, nothing

     was stated regarding whether counsel consulted with Gillespie on the sentence. Gillespie argues

     that this certification was insufficient. We agree. We vacate the Cook County circuit court’s

     order denying Gillespie’s motion and remand.

¶2                                            Background
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¶3          In April 2015, Gillespie was charged with violating an order of protection. In a negotiated

     plea deal, Gillespie pled guilty in exchange for a sentence of 12 months of probation, GPS

     monitoring, and community service.

¶4          But soon after, Gillespie filed a pro se document that the trial court interpreted as a

     motion to withdraw his guilty plea. Gillespie’s counsel then filed an amended motion. Attached

     to the motion was a certification under Illinois Supreme Court Rule 604(d), stating: “I have

     consulted with the defendant in person to ascertain his contentions of error in the entry of the

     plea of guilty in the above matter. I have examined the trial court file and the official transcript

     of the proceedings of May 13, 2015. I have prepared a Motion to Withdraw Defendant’s Plea of

     Guilty and Vacate the Judgment.” After a hearing, the trial court denied the motion, and

     Gillespie filed this appeal.

¶5                                                Analysis

¶6          Gillespie argues that his trial counsel’s Rule 604(d) certification did not strictly comply

     with the rule because it failed to state that counsel had consulted with Gillespie about his

     contentions of error in both the guilty plea and his sentence.

¶7          Illinois Supreme Court Rule 604(d) governs a defendant’s ability to appeal after pleading

     guilty; a defendant may not do so unless he or she first challenges the plea (or the sentence or

     both the plea and the sentence) in a motion in the trial court. Ill. S. Ct. R. 604(d) (eff. Dec. 11,

     2014). The defendant’s attorney must certify to the trial court that certain tasks were completed.

     Until recently, Rule 604(d) stated that the attorney must consult with the defendant “to ascertain

     defendant’s contentions of error in the sentence or the entry of the plea of guilty.” (Emphasis

     added.) Id.




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¶8              Our supreme court was asked to interpret this clause in People v. Tousignant, 2014 IL

       115329. The State argued that because the word “or” was disjunctive, an attorney did not need to

       certify consultation about both the sentence and the plea. Id. ¶ 11. But the supreme court

       disagreed, based on the purpose of the rule: “to enable the trial court to ensure that counsel has

       reviewed the defendant’s claim and considered all relevant bases for the motion to withdraw the

       guilty plea or to reconsider the sentence.” (Emphasis in original.) Id. ¶ 16. This would enable the

       trial court to correct possible errors at the soonest opportunity. Id. ¶ 19. The court determined

       that the word “or” should be read as “and,” requiring attorneys to certify consultation about both

       the guilty plea and the sentence. Id. ¶ 20.

¶9              Following Tousignant and Gillespie’s case, the supreme court amended the rule to read

       that defense counsel must consult with the defendant to ascertain the “contentions of error in the

       sentence and the entry of the plea of guilty.” (Emphasis added.) Ill. S. Ct. R. 604(d) (eff. Dec. 3,

       2015).

¶ 10            Gillespie relies on Tousignant to argue that his counsel did not strictly comply with the

       rule. The State argues that Tousignant is distinguishable because Tousignant had an “open” plea

       (he pled guilty without any promise from the State), while Gillespie had a “closed,” or fully

       negotiated, plea deal. According to the State, because Gillespie negotiated for a specific

       sentence, he could not challenge that sentence afterwards and therefore his attorney did not need

       to certify consultation regarding the sentence. Gillespie argues that Tousignant’s holding was not

       limited to open pleas.

¶ 11            In People v. Martell, the Second District agreed with Gillespie’s position, rejecting the

       argument that Tousignant applied only to open pleas: “nothing in Tousignant’s reasoning relies

       on the fact that the plea there was open, and nothing in the opinion states that its holding is


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       1-15-2351



       limited to open pleas.” 2015 IL App (2d) 141202, ¶ 9. Indeed, the rule’s purpose was to ensure

       adequate consultation between attorney and client, and “the sufficiency of the consultation does

       not depend on the scope of the motion that counsel files afterwards.” Id. Martell also noted that

       even in the context of a fully negotiated plea, the trial court’s role had “dwindled but not wholly

       disappeared,” as the agreed-upon sentence might be improper in some way, requiring the trial

       court to step in. Id. ¶ 13.

¶ 12           We agree with Martell. Tousignant and the rule’s language are not limited to open pleas,

       and if our supreme court intends that it be so limited, it will say so explicitly. The State’s

       argument has some superficial logical appeal: if the plea is closed, counsel will not be able to

       challenge the sentence through a written motion. But the rule focuses on the attorney’s duty to

       consult with his or her client, and that consultation has value even if it does not ultimately affect

       the content of the motion. Further, Martell’s concern that a fully negotiated plea might include

       an improper sentence is real. See, e.g., People v. White, 2011 IL 109616, ¶ 23 (trial court may

       not impose illegal sentence even if intended by parties through plea agreement). Even when the

       parties agree on a specific sentence, the trial court still has a role to play beyond blindly

       imposing their wishes. The consultation and motion contemplated by Rule 604(d) will ultimately

       be directed at the trial court’s acceptance of the plea and imposition of sentence, not the parties’

       agreement.

¶ 13           Though strict enforcement of the rule under Tousignant might seem “hypertechnical”

       (see Martell, 2015 IL App (2d) 141202, ¶ 19), we believe that the law properly requires it.

¶ 14           We vacate the trial court’s denial of Gillespie’s motion and remand for further

       proceedings.

¶ 15           Reversed and remanded.


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