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                               Appellate Court                             Date: 2019.07.10
                                                                           10:02:22 -05'00'




                  People v. Calleros, 2018 IL App (2d) 151256



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



District & No.     Second District
                   Docket No. 2-15-1256



Filed              June 21, 2018



Decision Under     Appeal from the Circuit Court of Kane County, No. 14-CF-2026; the
Review             Hon. James C. Hallock, Judge, presiding.



Judgment           Vacated and remanded.


Counsel on         James E. Chadd, Thomas A. Lilien, and Ann Fick, of State Appellate
Appeal             Defender’s Office, of Elgin, for appellant.

                   Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick
                   Delfino, David J. Robinson, and Richard S. London, of State’s
                   Attorneys Appellate Prosecutor’s Office, of counsel), for the People.



Panel              JUSTICE JORGENSEN delivered the judgment of the court, with
                   opinion.
                   Justices Hutchinson and Birkett concurred in the judgment and
                   opinion.
                                              OPINION

¶1       On September 24, 2015, defendant, Eduardo Calleros, pleaded guilty to possession of a
     controlled substance (720 ILCS 570/402(c) (West 2014)). Pursuant to an agreement with the
     State, he was sentenced to a two-year prison term in exchange for his plea. He later moved to
     withdraw his plea. The trial court denied the motion on December 22, 2015, and defendant
     filed his notice of appeal on the same day. On appeal, defendant argues that his attorney did
     not properly certify compliance with the Illinois Supreme Court rule that sets forth counsel’s
     duties in connection with post-plea motions. We vacate and remand for further proceedings.
¶2       When defendant entered his guilty plea, Illinois Supreme Court Rule 604(d) (eff. Dec. 11,
     2014) provided, in pertinent part, that, when a defendant moves to withdraw a guilty plea or
     to reconsider a sentence entered on a guilty plea, “[t]he 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.) Defendant moved to withdraw his plea
     on October 21, 2015. On November 4, 2015, defendant’s attorney filed a Rule 604(d)
     certificate stating, in pertinent part:
                  “1. *** I have personally consulted with [defendant] *** to ascertain his
              contentions of error in the sentence or the entry of the plea of guilty;
                  ***
                  3. *** I have obtained transcriptions of the court proceedings on September, 2015
              and reviewed with the Defendant.” (Emphasis added.)
¶3       On December 3, 2015, Rule 604(d) was amended to provide, in pertinent part, that “the
     defendant’s attorney shall file with the trial court a certificate stating that the attorney has
     consulted with the defendant *** to ascertain defendant’s 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). Defendant argues that, if the amendment did not apply, the certificate was deficient
     because it did not state that counsel examined the report of proceedings of the plea of guilty.
     On the other hand, defendant argues, if the amendment did apply, counsel’s certificate was
     deficient because it stated that counsel consulted with him to ascertain his contentions of
     error “in the sentence or the entry of the plea of guilty.” (Emphasis added.) It is well
     established that the attorney’s certificate must strictly comply with the requirements of Rule
     604(d). See People v. Janes, 158 Ill. 2d 27, 35 (1994). If the certificate does not satisfy this
     standard, a reviewing court must remand the case to the trial court for proceedings that
     strictly comply with Rule 604(d), including “a new hearing on the motion.” Id. at 33.
¶4       The first step in deciding this appeal is to determine whether the December 3, 2015,
     amendment to Rule 604(d) governed the contents of counsel’s certificate. The retroactivity
     analysis that applies to statutes also applies to Illinois Supreme Court rules. People v. Easton,
     2017 IL App (2d) 141180, ¶ 14, appeal allowed, No. 122187 (Jan. 18, 2018). The temporal
     reach of a statute is governed, in part, by section 4 of the Statute on Statutes (5 ILCS 70/4
     (West 2016)), which provides, in pertinent part, that



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             “[n]o new law shall be construed to repeal a former law, whether such former law is
             expressly repealed or not, as to any offense committed against the former law, or as to
             any act done, any penalty, forfeiture or punishment incurred, or any right accrued, or
             claim arising under the former law, or in any way whatever to affect any such offense
             or act so committed or done, or any penalty, forfeiture or punishment so incurred, or
             any right accrued, or claim arising before the new law takes effect, save only that the
             proceedings thereafter shall conform, so far as practicable, to the laws in force at the
             time of such proceeding.” (Emphasis added.)
     In addition, our supreme court has adopted the retroactivity analysis set forth in Landgraf v.
     USI Film Products, 511 U.S. 244 (1994). See Commonwealth Edison Co. v. Will County
     Collector, 196 Ill. 2d 27, 36 (2001).
¶5       In People ex rel. Alvarez v. Howard, 2016 IL 120729, ¶ 19, our supreme court described
     Landgraf’s two-part approach for determining the retroactivity of a statute. The Howard
     court also explained the relationship between Landgraf and section 4 of the Statute on
     Statutes:
             “Under [Landgraf’s] two-part approach, the first question is whether the legislature
             has clearly indicated the temporal reach of the amended statute. [Citation.] If so, then
             that expression of legislative intent must be given effect, absent a constitutional
             prohibition. [Citation.] If not, then the court proceeds to step two and determines
             whether the statute would have a retroactive impact. A statute has a retroactive impact
             if it ‘ “would impair rights a party possessed when he acted, increase a party’s
             liability for past conduct, or impose new duties with respect to transactions already
             completed.” ’ [Citation.] If there is no retroactive impact, the statutory amendment
             may be applied retroactively; if there is a retroactive impact, the court presumes that
             the legislature intended the amendment to be prospective only. [Citation.]
                 *** [B]ecause of the existence of section 4 of the Statute on Statutes [citation],
             application of the Landgraf test in Illinois would ‘prove uneventful.’ [Citation.]
             Section 4 is a general savings clause, which this court has interpreted as meaning that
             procedural changes to statutes will be applied retroactively, while substantive changes
             are prospective only. [Citation.] Thus *** an Illinois court will never need to go
             beyond step one of the Landgraf test because the legislature has clearly set forth the
             temporal reach of every amended statute. [Citation.] If the temporal reach of the
             amendment is not set forth in the statutory amendment itself, then it is provided by
             default in section 4. [Citation.]” Id. ¶¶ 19, 20.
¶6       The supreme court has not specified the temporal reach of the amendment to Rule 604(d).
     Accordingly, the retroactivity question hinges on whether the amendment was procedural or
     substantive. The answer to that question is clear. “Generally, a procedural change in the law
     prescribes a method of enforcing rights or involves pleadings, evidence and practice.”
     Schweickert v. AG Services of America, Inc., 355 Ill. App. 3d 439, 442 (2005). The
     amendment to Rule 604(d) fits that description. See Easton, 2017 IL App (2d) 141180,
     ¶¶ 14-17.
¶7       Before proceeding, we note that the State and defendant are both under the misimpression
     that the pertinent amendment to Rule 604(d) took effect while this appeal was pending.
     Although counsel’s certificate was filed before Rule 604(d) was amended, the trial court
     ruled on the motion, and defendant filed his notice of appeal, after the rule was amended.

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       The mistake is reflected in the State’s misplaced reliance on People v. Hunter, 2017 IL
       121306, in which our supreme court considered the retroactivity of a statutory amendment
       enacted while an appeal was pending.
¶8         The Hunter court explained that section 4 of the Statute on Statutes “contemplates the
       existence of proceedings after the new or amended statute is effective to which the new
       procedure could apply.” Id. ¶ 31. According to the Hunter court, “Because [the defendant’s]
       trial court proceedings have been concluded, and no further trial court proceedings are
       necessitated by reversible error, applying the amended statute retroactively to [the
       defendant’s] case would result in this court effectively creating new proceedings for the sole
       purpose of applying a procedural statute that postdates his trial and sentence.” (Emphasis
       added.) Id. ¶ 33. Hunter is clearly distinguishable. Rule 604(d) was amended before the trial
       court proceedings in this case had concluded. Section 4 of the Statute on Statutes mandated
       that the trial court proceedings taking place after Rule 604(d) was amended “conform, so far
       as practicable, to the laws in force at the time of such proceeding.” 5 ILCS 70/4 (West 2016).
       Defense counsel’s certificate did not conform to the law in force—the amendment to Rule
       604(d)—at the time of the proceedings on defendant’s motion to withdraw his plea.
¶9         This case bears a closer resemblance to People v. Gonzalez, 2017 IL App (3d) 160183,
       than to Hunter. In Gonzalez, the Rule 604(d) motion and certificate were both filed on
       September 23, 2015. The motion was heard and decided on April 8, 2016. 1 Noting that “[i]t
       is well-settled that statutory amendments may be applied retroactively where they are
       procedural in nature and do not impair a vested right,” the Gonzalez court concluded that the
       amended rule applied retroactively to the Rule 604(d) certificate that had been filed on the
       same day as the Rule 604(d) motion. Id. ¶ 10.
¶ 10       For reasons that are not altogether clear, the State asserts that, in prior cases, it had
       speculated that if counsel’s certificate complied with the amended Rule 604(d), the defendant
       would have argued that the old rule applied, but if counsel complied with the old rule, the
       defendant would have argued that the new rule applied. The State thus appears to argue that
       we should ignore defendant’s argument, because, had the facts been different, defendant
       hypothetically would have made the opposite argument. Suffice it to say that it is absurd to
       suggest that we should bar defendant’s argument because he might have made a different
       argument under different circumstances.
¶ 11       For the foregoing reasons, we conclude that counsel’s certificate should have conformed
       to Rule 604(d) as amended. The amended rule required counsel to certify that she “consulted
       with the defendant *** to ascertain defendant’s 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).
       Counsel’s certificate used the word “or” in place of “and,” leaving doubt as to the scope of
       the consultation. Accordingly, we vacate the denial of defendant’s motion to withdraw his
       plea and we remand the cause to the circuit court of Kane County for “(1) the filing of a
       [valid] Rule 604(d) certificate; (2) the opportunity to file a new motion to withdraw the guilty
       plea and/or reconsider the sentence, if counsel concludes that a new motion is necessary; and


           1
            The opinion in Gonzalez states that the motion was heard on April 8, 2015. Gonzalez, 2017 IL App
       (3d) 160183, ¶ 5. Because the hearing could not have taken place before the motion was filed, that date
       is obviously incorrect.

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       (3) a new motion hearing.” People v. Lindsay, 239 Ill. 2d 522, 531 (2011).

¶ 12      Vacated and remanded.




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