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                                Appellate Court                            Date: 2019.05.28
                                                                           10:08:29 -05'00'



                  People v. Willoughby, 2019 IL App (2d) 160729



Appellate Court     THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption             CHRISTOPHER M. WILLOUGHBY, Defendant-Appellant.



District & No.      Second District
                    Docket Nos. 2-16-0729, 2-16-0730 cons.



Filed               February 28, 2019



Decision Under      Appeal from the Circuit Court of Kane County, Nos. 13-CF-451,
Review              15-CF-1488; the Hon. John A. Barsanti, Judge, presiding.



Judgment            Appeals dismissed.


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

                    Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick
                    Delfino, David J. Robinson, and Victoria E. Jozef, 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 McLaren and Jorgensen concurred in the judgment and
                    opinion.
                                               OPINION

¶1        These consolidated appeals present the question of whether a remand for compliance with
     Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) is necessary when an attorney files a
     postplea motion for a fugitive defendant but fails to file a certificate of compliance with Rule
     604(d). Under the circumstances of this case, we conclude that dismissal of the appeals, not a
     remand, is the proper disposition.

¶2                                       I. BACKGROUND
¶3       On October 9, 2014, defendant pleaded guilty to burglary (720 ILCS 5/19-1(c) (West
     2012)) in case No. 13-CF-451 and was sentenced to a two-year term of probation. Defendant
     violated his probation, and on August 24, 2015, he was resentenced to a two-year term of
     probation. Defendant was subsequently charged, in case No. 15-CF-1488, with defrauding a
     drug and alcohol screening test (720 ILCS 5/17-57(a)(2) (West 2014)), and the State filed a
     petition to revoke his probation in the burglary case. On May 5, 2016, defendant entered a
     nonnegotiated plea of guilty of defrauding a drug and alcohol screening test. He also admitted
     that he had violated his probation.
¶4       Defendant failed to appear at his sentencing hearing (which took place August 17, 2016) or
     any subsequent proceeding. He was sentenced in absentia to a one-year prison term for
     defrauding a drug and alcohol screening test and to a three-year prison term for burglary. The
     court ordered the prison terms to be served consecutively. Defendant’s attorney filed a motion
     to reconsider defendant’s sentences pursuant to Rule 604(d). The trial court denied the motion,
     and defendant’s attorney filed notices of appeal from the sentences for burglary (case No.
     2-16-0729) and defrauding a drug and alcohol screening test (case No. 2-16-0730). We
     consolidated the appeals.

¶5                                             II. ANALYSIS
¶6        Rule 604(d) provides, in pertinent part, that “[n]o 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.” Ill. S. Ct. R. 604(d) (eff. July 1, 2017). The motion must be in writing, and
     any issue not raised in the motion will be deemed forfeited. Id. Rule 604(d) further requires the
     defendant’s attorney to
              “file with the trial court a certificate stating that the attorney has consulted with the
              defendant either by phone, mail, electronic means or in person to ascertain defendant’s
              contentions of error in the sentence and the entry of the plea of guilty, has examined the
              trial court file and both the report of proceedings of the plea of guilty and the report of
              proceedings in the sentencing hearing, and has made any amendments to the motion
              necessary for adequate presentation of any defects in those proceedings.” Id.
     Although defendant’s attorney filed a motion to reconsider defendant’s sentences, she did not
     file the certificate that Rule 604(d) requires.
¶7        In People v. Wilk, 124 Ill. 2d 93, 105 (1988), our supreme court held that compliance with
     Rule 604(d)’s motion requirement is a condition precedent to an appeal from a guilty plea and
     that dismissal of the appeal is the proper disposition when a defendant fails to comply with the

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       motion requirement. In the course of its analysis, the court explained the purpose of the motion
       requirement:
                “That purpose is to ensure that before a criminal appeal can be taken from a guilty plea,
                the trial judge who accepted the plea and imposed sentence be given the opportunity to
                hear the allegations of improprieties that took place outside the official proceedings
                and dehors the record, but nevertheless were unwittingly given sanction in the
                courtroom. Rule 604(d) provides for fact finding to take place at a time when witnesses
                are still available and memories are fresh. [Citation.] A hearing under Rule 604(d)
                allows a trial court to immediately correct any improper conduct or any errors of the
                trial court that may have produced a guilty plea. The trial court is the place for fact
                finding to occur and for a record to be made concerning the factual basis upon which a
                defendant relies for the grounds to withdraw a guilty plea. If the motion to withdraw the
                plea is denied, that decision can be considered on review.” Id. at 104.
¶8         The Wilk court noted that dismissal of the appeal did not necessarily leave the defendant
       without a remedy. The court observed:
                “[A]n attorney who stands with his client in a criminal proceeding, hears the
                admonishments of the court required by Rule 605(b) [(Ill. S. Ct. R. 605(b) (eff. July 1,
                1975))], and fails to adhere to Rule 604(d) by moving to withdraw the plea prior to
                filing a notice of appeal has fallen short of providing competent representation. ***
                The defendant, through no fault of his, is deprived of a right to be heard in the appellate
                court. Such assistance of counsel, coupled with the denial of appellate review, raises
                effective assistance of counsel constitutional questions. Furthermore, many of the
                grounds for withdrawal of guilty pleas, consideration of which is denied because of
                counsel’s failure, themselves may raise constitutional questions.” (Emphasis added.)
                Id. at 105-06.
       The court explained that the defendant could seek a remedy under the Post-Conviction Hearing
       Act (725 ILCS 5/122-1 et seq. (West 2016)) for counsel’s failure to preserve the defendant’s
       right to an appeal.
¶9         In a subsequent decision, People v. Janes, 158 Ill. 2d 27 (1994), the court held that
       attorneys representing criminal defendants in postplea proceedings must strictly comply with
       Rule 604(d)’s certificate requirement. Although the Janes court relied heavily on Wilk, the
       court drew an important distinction: unlike the motion requirement, Rule 604(d) did not make
       the certificate requirement a condition precedent to an appeal. Id. at 34. Thus, an attorney’s
       failure to comply with the certificate requirement did not dictate that the appeal be dismissed.
       Id. The Janes court held that, when the defendant’s attorney fails to strictly comply with the
       certificate requirement, the proper disposition of the appeal is to remand to the trial court for
       proceedings in full compliance with Rule 604(d). Id. at 33.
¶ 10       For an attorney’s certificate to fully comply with Rule 604(d), it must state that counsel
       consulted with the defendant to ascertain his or her contentions of error in the sentence and the
       entry of the plea of guilty. Nothing in Janes suggests that the defendant was unavailable for
       consultation. Here, in contrast, defendant concedes that he was not available for consultation.
       Nevertheless, he argues that, because his attorney deemed it necessary to file a motion to
       reconsider his sentences, she was required to file a certificate in strict compliance with Rule
       604(d). According to defendant, his absence “should not relieve counsel of her obligation to


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       comply with the certification requirement when she chose to file a post-judgment motion.” We
       disagree.
¶ 11       Whether Janes applies when the defendant is unavailable for consultation with counsel
       appears to be a question of first impression. “[T]o determine a judicial decision’s precedential
       effect in a subsequent case, a court must consider the ratio decidendi of the earlier decision.”
       Kelley v. Sheriff’s Merit Comm’n, 372 Ill. App. 3d 931, 934 (2007). It has been observed:
                    “The ratio decidendi of a case is ‘the principle of law which is the basis of the
               actual decision and therefore, by virtue of the doctrine of stare decisis, the principle
               which subsequent courts, faced with a set of facts indistinguishable in any material
               particular from those in the precedent case, must apply to the decision of the
               subsequent case also.’ [Citation.] *** [T]o determine the ratio decidendi of a case, a
               court must ascertain (1) what facts were considered material by the court in the prior
               case, and (2) ‘what proposition of law justified that decision on these material[ ]
               facts.’ ” Panchinsin v. Enterprise Cos., 117 Ill. App. 3d 441, 444 (1983).
¶ 12       Janes was primarily concerned with whether Rule 604(d) required strict compliance with
       the certificate requirement. It contains little discussion of the basis for the court’s decision that
       the remedy for a violation of the certificate requirement is to remand to the trial court.
       Nonetheless, because Janes relied heavily on Wilk, Wilk sheds light on Janes’s
       ratio decidendi. Although the result in Wilk was harsh, the court commiserated with
       defendants who were punished for their attorneys’ mistakes; the court was careful to point out
       that a defendant who had lost the right to appeal might be able to obtain a remedy in a
       postconviction proceeding.
¶ 13       Unconstrained by the principle that a Rule 604(d) motion is a condition precedent to an
       appeal, the Janes court was able to require strict compliance with the certificate requirement
       without punishing defendants and forcing them to seek relief under the Post-Conviction
       Hearing Act. This is eminently sensible, inasmuch as the certificate requirement is designed to
       ensure that defense counsel has fulfilled his or her obligations to the defendant. It would be
       incongruous to penalize defendants for their attorneys’ violations of such a rule. However,
       when counsel is not to blame for noncompliance with Rule 604(d), the justification for
       remanding the case disappears.
¶ 14       Read in light of Wilk, Janes stands for the proposition that, where the defendant is not at
       fault, counsel’s failure to strictly comply with Rule 604(d)’s certificate requirement should not
       result in the deprivation of the defendant’s right to appeal. That the defendant in Janes was
       available to consult with counsel was material to the result in Janes. Here, in contrast,
       defendant made himself unavailable for consultation with his attorney and thereby made it
       impossible for his attorney to strictly comply with the certificate requirement. Because
       defendant’s attorney could not consult with defendant, she obviously could not certify that she
       had done so.
¶ 15       Although not precisely on point, People v. Priest, 345 Ill. App. 3d 660 (2003), and People
       v. Woolridge, 292 Ill. App. 3d 788 (1997), support our analysis. In Priest, the defendant
       entered a guilty plea but failed to appear at sentencing. His attorney filed Rule 604(d) motions,
       but never obtained rulings on them. The Priest court concluded that the failure to obtain rulings
       on the motions required dismissal of the appeal. The court noted that an exception to the rule of
       dismissal exists when the trial court fails to admonish the defendant pursuant to Illinois
       Supreme Court Rule 605(b) (eff. Oct. 1, 2001). However, the court found that the exception

                                                     -4-
       was inapplicable because the defendant failed to appear, “leaving the court ‘to engage in the
       ineffective ritual of advising an empty chair.’ ” Priest, 345 Ill. App. 3d at 666 (quoting
       Woolridge, 292 Ill. App. 3d at 791). In Woolridge, the defendant likewise failed to appear at
       sentencing. When he later appeared before the trial court, the court admonished him pursuant
       to Rule 605(b). The defendant argued that the 30-day period for filing a Rule 604(d) motion
       began when the trial court admonished him pursuant to Rule 605(b). The Woolridge court
       rejected the argument, concluding that the 30-day period began when the defendant was
       sentenced in absentia, even though he was not admonished at that time. The court reasoned
       that it was impossible for a trial court to proceed under the statute providing for sentencing an
       absent defendant while simultaneously complying with Rule 605(b). Woolridge, 292 Ill. App.
       3d at 791. Similarly, here, defendant’s absence made it impossible for counsel to certify that
       she had consulted with him. Thus, he is not entitled to relief for her failure to do so.
¶ 16       It is important to note that defendant’s absence did not prevent his attorney from certifying
       that she examined the appropriate parts of the trial court record and made appropriate
       amendments to the Rule 604(d) motion. It is arguable that defendant’s attorney should have
       complied with the certificate requirement to the extent possible. In other words, it is
       conceivable that, when strict compliance is not possible but partial compliance is, counsel’s
       failure to partially comply with the certificate requirement should trigger Janes. That is not
       defendant’s argument, however. Defendant argues that counsel was obligated to strictly
       comply with the certificate requirement and that Janes therefore applies. For the reasons set
       forth above, we conclude that, because defendant made strict compliance impossible, Janes
       does not apply. We leave for another day the question of whether Janes applies when only
       partial compliance is possible.
¶ 17       We end by repeating the Woolridge court’s closing observation:
                “[D]efendant is not entirely without recourse. The same statute that allows him to be
                sentenced in absentia creates a mechanism for him to obtain review of the sentence.
                The statute requires that defendant demonstrate [that] his ‘failure to appear in court was
                both without his fault and due to circumstances beyond his control.’ 725 ILCS
                5/115-4.1(e) (West 1992). This provision is ‘part of a statutory scheme to afford due
                process to persons tried in absentia.’ People v. Williams, 274 Ill. App. 3d 793, 799 ***
                (1995). A defendant who is sentenced in absentia and fails to comply with the
                requirements of Rule 604(d) is limited to this mechanism to obtain review of his
                sentence.” Id. at 793.
       This observation applies equally to defendant here. See 725 ILCS 5/115-4.1(e) (West 2016).

¶ 18                                       III. CONCLUSION
¶ 19       For the foregoing reasons, we dismiss these appeals. As part of our judgment, we grant the
       State’s request that defendant be assessed $50 as costs for these appeals. 55 ILCS 5/4-2002(a)
       (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178 (1978).

¶ 20      Appeals dismissed.




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