                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Albers, 2013 IL App (2d) 111103




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    MICHAEL P. ALBERS, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-11-1103


Filed                      June 28, 2013


Held                       Following defendant’s conviction for aggravated driving under the
(Note: This syllabus       influence of alcohol following a negotiated guilty plea, his appeal from
constitutes no part of     the denial of his motion for reconsideration of his sentence was dismissed
the opinion of the court   on the ground that he failed to move to withdraw his guilty plea as
but has been prepared      required by Supreme Court Rule 604(d), since defendant was barred from
by the Reporter of         challenging his sentence without moving to withdraw his guilty plea and
Decisions for the          the trial court should have struck his motion to reconsider instead of
convenience of the         considering the motion on the merits.
reader.)


Decision Under             Appeal from the Circuit Court of Lake County, No. 10-CF-2910; the
Review                     Hon. James K. Booras, Judge, presiding.



Judgment                   Appeal dismissed.
Counsel on                 Thomas A. Lilien and Bruce Kirkham, both of State Appellate Defender’s
Appeal                     Office, of Elgin, for appellant.

                           Michael J. Waller, State’s Attorney, of Waukegan (Lawrence M. Bauer
                           and Diane L. Campbell, both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.


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




                                            OPINION

¶1           Defendant, Michael P. Albers, entered a negotiated plea of guilty to one count of
        aggravated driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(d)(1)(F) (West
        2010)) and was sentenced to 10 years’ imprisonment. He moved to reconsider his sentence.
        The trial court denied the motion, and defendant appealed. On appeal, he contends that a
        remand is required because his trial counsel filed a defective certificate of compliance with
        Illinois Supreme Court Rule 604(d) (eff. July 1, 2006). Because Rule 604(d) did not allow
        defendant to challenge his sentence without moving to withdraw his guilty plea, and because
        defendant failed to comply with this motion requirement, we dismiss the appeal.

¶2                                         I. BACKGROUND
¶3          On August 12, 2010, defendant, who was driving with a blood alcohol concentration of
        0.08 or more, was involved in a fatal car accident. Defendant rounded a curve to the right
        into oncoming traffic and collided with another car, killing one person and injuring another.
        The grand jury returned an eight-count indictment against defendant, with the charges
        ranging from aggravated DUI (625 ILCS 5/11-501(d)(1)(C), (F) (West 2010)) to reckless
        homicide (720 ILCS 5/9-3(a) (West 2010)). Public defender Katharine Hatch was appointed
        to represent defendant. A short time later, defendant requested to proceed pro se and was
        granted leave to do so.
¶4          Defendant ultimately pled guilty to count I of the indictment, which charged aggravated
        DUI resulting in the death of another person (625 ILCS 5/11-501(d)(1)(F) (West 2010)), a
        Class 2 felony. In return for defendant’s plea, the State dismissed the remaining charges and
        recommended a sentencing cap of 10 years’ imprisonment. At the hearing, the trial court
        explained to defendant that the sentencing range for the offense was 3 to 14 years, and it
        explained the consequences of his plea. Determining that defendant’s plea was voluntary and
        intelligent, the trial court accepted the plea.


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¶5          With regard to sentencing, defendant did not proceed pro se but was represented by
       attorney Hatch. Following a hearing, the court imposed a 10-year sentence. The court
       properly admonished defendant that, should he wish to appeal the judgment, he would need
       to file in the trial court a motion to vacate the judgment and for leave to withdraw his guilty
       plea. Defendant did not do so. Instead, within 30 days, he filed a pro se motion to reconsider
       the sentence.
¶6          The trial court appointed attorney Hatch, who filed a Rule 604(d) certificate stating: “1.
       I have consulted with the Defendant, in person[,] to ascertain his/her contentions of error in
       the sentence in the above-entitled cause ***. 2. I have examined the trial court file and report
       of the proceedings of the plea of guilty. 3. I have made any amendments to the motion
       necessary for adequate presentation of any defects in those proceedings.” The certificate did
       not state that counsel had consulted with defendant to ascertain his contentions of error in
       the entry of the guilty plea.
¶7          The court conducted a hearing on defendant’s motion to reconsider his sentence. Counsel
       did not amend defendant’s pro se motion but argued the points defendant had raised. The
       court rejected all of defendant’s claims, reasoning that it had considered all of the factors in
       aggravation and mitigation when fashioning a sentence and that defendant’s 10-year sentence
       was fair. The court noted that it had even commended defendant for getting a “deal” from
       the State, because the sentence would have been much more severe otherwise. Defendant
       timely appealed the denial of his motion to reconsider his sentence.

¶8                                          II. ANALYSIS
¶9          On appeal, defendant requests a remand on the ground that his trial counsel’s Rule 604(d)
       certificate was defective. A Rule 604(d) certificate has three main requirements, and it is the
       first requirement, the consultation requirement, that defendant challenges here. According
       to defendant, the certificate was defective because trial counsel stated that she ascertained
       defendant’s contentions of error only in his sentence, but not in the entry of his guilty plea.
       See Ill. S. Ct. R. 604(d) (eff. July 1, 2006) (requiring a defendant’s attorney in a guilty-plea
       case to “file with the trial court a certificate stating that the attorney has consulted with the
       defendant either by mail or in person to ascertain the defendant’s contentions of error in the
       sentence or the entry of the plea of guilty”).
¶ 10        The State counters that the certificate complied with Rule 604(d) because the rule is
       phrased in the disjunctive: counsel is required to consult with the defendant about his
       contentions of error in the sentence or in the entry of the guilty plea. The State also argues
       that because defendant filed an improper postjudgment motion under Rule 604(d), in that
       defendant independently challenged his sentence without moving to withdraw his guilty plea,
       he is not entitled to a remand, or to any relief for that matter. We agree with the State’s
       second argument and therefore need not resolve whether the certificate complied with Rule
       604(d).
¶ 11        The plea at issue here was a negotiated plea in that the State agreed to a sentencing cap.
       Under this type of plea agreement, defendant was not allowed to challenge merely his
       sentence under Rule 604(d); he was required to file a motion to withdraw his guilty plea and

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       vacate the judgment. See id. (“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.”). Our
       supreme court in People v. Linder, 186 Ill. 2d 67, 74 (1999), explained that to allow a
       defendant to seek reconsideration of his sentence without moving to withdraw his guilty plea
       unfairly binds the State to the terms of the plea agreement while giving the defendant the
       opportunity to avoid or modify those terms. Rule 604(d) incorporates our supreme court’s
       holding that such a strategy is impermissible. Id.
¶ 12        “Ordinarily, the failure to file the appropriate motion under Rule 604(d) results in
       dismissal of the appeal.” People v. Green, 375 Ill. App. 3d 1049, 1053 (2007) (citing Linder,
       186 Ill. 2d at 74). Defendant recognizes this hurdle and tries to overcome it by relying on
       People v. Neal, 403 Ill. App. 3d 757 (2010), a case decided by the Fourth District. As in this
       case, the defendant in Neal entered a negotiated guilty plea but moved only to reconsider his
       sentence. Id. at 758. The defendant’s counsel in Neal filed a Rule 604(d) certificate, and the
       trial court denied on the merits the defendant’s motion challenging his sentence. Id. at 759.
       On appeal, the defendant sought a remand on the ground that counsel’s certificate did not
       comply with Rule 604(d). Id. The State confessed error and agreed that the case should be
       remanded on this basis. Id. at 760. The appellate court likewise agreed that the certificate was
       defective and remanded the case for strict compliance with Rule 604(d). Id. at 760-61.
¶ 13        We disagree with the reasoning in Neal, because it violates Rule 604(d) and our supreme
       court’s decision in Linder. In Linder, the defendant pled guilty to armed robbery and
       aggravated vehicular hijacking, after the State agreed to dismiss the other charges and not
       seek a sentence in excess of 15 years’ imprisonment. Linder, 186 Ill. 2d at 69. The trial court
       accepted the plea agreement and sentenced the defendant within the agreed-upon range. Id.
       As in Neal and the case at bar, the defendant then filed a motion to reconsider his sentence
       but not a motion to withdraw his guilty plea. Id. at 69-70. The trial court denied the
       defendant’s motion to reconsider his sentence, and the defendant appealed. Id. at 69.
¶ 14        On appeal, the defendant argued that he was entitled to a new sentencing hearing because
       his attorney failed to file a Rule 604(d) certificate prior to the hearing on his motion to
       reconsider his sentence. Id. Though no Rule 604(d) certificate was ever filed, the State
       argued that the absence of the certificate was irrelevant. Id. The State argued that the
       defendant would not be entitled to relief on appeal even if such a certificate had been filed,
       because he never moved to withdraw his guilty plea. Id. at 70.
¶ 15        The supreme court stated that, 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. Id. at 74. Because the
       defendant did not move to withdraw his guilty plea and vacate the judgment, as required by
       Rule 604(d), the supreme court determined that the trial court correctly refused to reconsider
       his sentence. Id. Moreover, the supreme court stated that the appellate court should not have
       entertained the defendant’s appeal. Id. Where a defendant fails to comply with the motion
       requirement of Rule 604(d), “the appellate court must dismiss the appeal.” Id.
¶ 16        A Fifth District case, People v. DeRosa, 396 Ill. App. 3d 769 (2009), discussed Rule


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       604(d) and Linder at length. The DeRosa court explained that Rule 604(d) contains a
       “motion requirement” and a “certification requirement,” and that courts treat the failure to
       comply with each requirement differently. Id. at 774. On the one hand, the remedy for a
       failure to comply with the certification requirement is a remand to the trial court for a new
       motion and a hearing in compliance with the rule. Id. On the other hand, where a defendant
       has failed to comply with the motion requirement, the appellate court generally cannot reach
       the merits and must dismiss the appeal. Id.
¶ 17       In DeRosa, as in Linder, Neal, and the case at bar, the defendant entered a negotiated plea
       but moved only to reconsider his sentence. Id. at 771, 774. Despite no certificate being filed,
       the DeRosa court did not remand the case on that basis. Id. at 771. Instead, the court
       dismissed the appeal, stating that Linder required such a result. Id. at 780.
¶ 18       We agree with DeRosa, which reached the result mandated by Linder, and disagree with
       Neal. Whereas the Neal court remanded the case for lack of compliance with the
       “certification requirement,” it should have dismissed the appeal for lack of compliance with
       the “motion requirement.” Indeed, the Linder court made clear that, when Rule 604(d)’s
       motion requirement is not satisfied, the lack of a certificate is inconsequential. Therefore,
       defendant in this case is not entitled to a remand for lack of compliance with the certification
       requirement. Because defendant failed to move to withdraw his guilty plea, we are bound to
       dismiss the appeal. See Linder, 186 Ill. 2d at 74 (where a defendant fails to comply with the
       motion requirement of Rule 604(d), the appellate court must dismiss the appeal, leaving the
       Post-Conviction Hearing Act as the defendant’s only recourse).
¶ 19       Going forward, we note that one way to ensure compliance with Rule 604(d)’s motion
       and certification requirements is for the trial court to determine whether a defendant’s motion
       to reconsider his sentence is properly before it. Had the trial court in this case recognized that
       defendant entered a negotiated guilty plea, meaning that he was not allowed to challenge his
       sentence without moving to withdraw his guilty plea, then the court could have struck his
       motion to reconsider his sentence rather than hearing it on the merits.

¶ 20                                III. CONCLUSION
¶ 21      Because defendant violated the motion requirement in Rule 604(d), we dismiss the
       appeal.

¶ 22       Appeal dismissed.




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