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                              Appellate Court                            Date: 2017.04.18
                                                                         12:09:53 -05'00'




                   People v. Evans, 2017 IL App (3d) 160019



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           PAUL J. EVANS III, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-16-0019



Filed             January 10, 2017



Decision Under    Appeal from the Circuit Court of Will County, No. 10-CF-2408; the
Review            Hon. Amy Bertani-Tomczak, Judge, presiding.



Judgment          Vacated and remanded with directions.



Counsel on        Michael J. Pelletier and Sean Conley, of State Appellate Defender’s
Appeal            Office, of Ottawa, for appellant.

                  James Glasgow, State’s Attorney, of Joliet (Gary F. Gnidovec, of
                  State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                  People.



Panel             JUSTICE O’BRIEN delivered the judgment of the court, with
                  opinion.
                  Justice Carter concurred in the judgment and opinion.
                  Justice Schmidt dissented, with opinion.
                                              OPINION

¶1       Defendant, Paul J. Evans III, pled guilty to home invasion (720 ILCS 5/12-11(a)(1) (West
     2010)) and was sentenced to a term of 12 years’ imprisonment. Defendant has tried to
     challenge that sentence as excessive through a postsentencing motion numerous times, but
     each time this court has remanded the matter on appeal either because defense counsel failed
     to strictly comply with Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016) or on
     jurisdictional grounds. Following our latest remand, the trial court again denied defendant’s
     motion to reduce sentence. On this appeal, defendant once again argues that his attorney
     failed to strictly comply with Rule 604(d). Once again, we agree with defendant and must
     remand the matter for strict compliance with that rule.

¶2                                             FACTS
¶3        Defendant entered an open plea of guilty to one count of home invasion in exchange for
     the nolle prosequi of the remaining charges. On November 16, 2011, the trial court sentenced
     defendant to a term of 12 years’ imprisonment. The court also made a finding of great bodily
     harm, in turn ordering that defendant serve 85% of his sentence.
¶4        Defendant filed a motion to reconsider sentence on December 1, 2011. This motion to
     reconsider sentence would be the first of three such motions filed in a two-year span. Each
     time, the trial court denied the motion, and defendant appealed. On each appeal, this court
     remanded the matter because counsel had not strictly complied with the certification
     requirements of Rule 604(d). See People v. Evans, 2015 IL App (3d) 140753, ¶¶ 4-7
     (providing detailed procedural history).
¶5        On September 25, 2014, following this court’s third remand for Rule 604(d) compliance,
     but prior to this court’s mandate being issued, defense counsel filed a new motion to
     reconsider sentence and a Rule 604(d) certificate. In that filing, counsel certified, inter alia:
     “Counsel has examined the Trial Court file and report of proceedings of the plea of guilty
     and was the original counsel at both the plea and the sentencing hearing.” The trial court
     denied the motion prior to the issuance of the mandate.
¶6        This court subsequently held that the trial court was without jurisdiction to rule on the
     motion (id. ¶ 14) because the mandate from this court had not yet issued. The trial court’s
     decision was void and therefore vacated. Id. ¶¶ 14, 17.
¶7        On January 8, 2016, defense counsel filed—for the fifth time—a motion to reconsider
     sentence and a Rule 604(d) certificate. In this certificate, as in the fourth certificate, defense
     counsel certified: “Counsel has examined the Trial Court file and report of proceedings of the
     plea of guilty and was the original counsel at both the plea and the sentencing hearing.” The
     trial court denied the motion.

¶8                                              ANALYSIS
¶9       On this appeal, defendant argues that counsel has, once again, failed to strictly comply
     with the certification requirements of Rule 604(d). Defendant contends that strict compliance
     with the rule is mandatory and that the matter should therefore be remanded for such
     compliance. The State argues that defense counsel was not required to file a Rule 604(d)
     certificate at all. Alternatively, the State argues that defendant has already received a full and

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       fair hearing accompanied by a compliant certificate and that remand is therefore not
       necessary.

¶ 10                           I. Certification Requirement Under Rule 604(d)
¶ 11        Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016) governs the procedures to be
       followed where a defendant wishes to appeal after pleading guilty. The rule, in its current
       form, mandates that defendants who entered an open guilty plea and wish to challenge the
       ensuing sentence must file a motion to reconsider sentence within 30 days of the imposition
       of the sentence. Id. Defendants who entered a negotiated guilty plea must file a motion to
       withdraw that plea if they wish to challenge the sentence. 1 Id. The current version of the rule
       also provides:
                 “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, 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.
       The rule currently provides an outline of the required certificate, which defense counsel may
       simply print and fill in the blank spaces for the date and counsel’s name. Id.
¶ 12        Paragraph (d) was added to Rule 604 in 1975. Ill. S. Ct. R. 604(d), Committee Comments
       (adopted July 1, 1975). The rule read: “The defendant’s attorney shall file with the trial court
       a certificate ***.” Ill. S. Ct. R. 604(d) (eff. July 1, 1975). The rule was amended 11 times
       over the next 39 years; in each iteration of the rule, the certificate requirement appeared in
       identical form.
¶ 13        Rule 604 was amended again on December 3, 2015. The amended rule added a clause to
       the certification requirement, resulting in the following: “If a motion to withdraw the plea of
       guilty is to be filed, the defendant’s attorney shall file with the trial court a certificate ***.”
       Ill. S. Ct. R. 604(d) (eff. Dec. 3, 2015). The rule was amended again 96 days later, on March
       8, 2016. That amendment made only one change to the rule, removing the clause: “If a
       motion to withdraw the plea of guilty is to be filed.” Ill. S. Ct. R. 604(d) (eff. Mar. 8, 2016).
¶ 14        Defense counsel in the present case filed his latest motion to reconsider sentence on
       January 8, 2016. The version of Rule 604(d) in effect at that time was the version enacted on
       December 3, 2015, which required a certificate only “[i]f a motion to withdraw the plea of
       guilty is to be filed.” Ill. S. Ct. R. 604(d) (eff. Dec. 3, 2015). Because defendant was only
       filing a motion to reconsider sentence, the plain language of the rule in effect at the time did
       not mandate that counsel file a Rule 604(d) certificate.
¶ 15        Defendant acknowledges that the plain language of Rule 604(d) in effect at the time of
       filing did not require the filing of any certificate. However, he argues that the limiting clause
       added in the December 3, 2015, version of the rule—and subsequently removed in the March
       8, 2016, version—was simply a scrivener’s error and should be ignored. Alternatively,

          1
           The rule defines a negotiated guilty plea as “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.” Id.

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       defendant contends that the version of the rule presently in effect can and should be applied
       retroactively. Such retroactive application would require defense counsel to have filed a
       compliant certificate in the present case, which defendant argues counsel failed to do. The
       State asserts that the December 3, 2015, addition was not a scrivener’s error. However, the
       State has made no response to defendant’s retroactivity argument.
¶ 16       It is well-settled that statutory amendments may be applied retroactively where they are
       procedural in nature and do not impair a vested right. E.g., Allegis Realty Investors v. Novak,
       223 Ill. 2d 318, 331 (2006) (“[Statutory amendments] that are procedural may be applied
       retroactively, while those that are substantive may not.”); see also People ex rel. Madigan v.
       Petco Petroleum Corp., 363 Ill. App. 3d 613, 621 (2006) (finding that supreme court’s
       retroactivity framework “applies equally to supreme court rules”). “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).
¶ 17       The statutory amendment in the present case was the March 8, 2016, removal of the
       clause limiting the certification requirement to those defendants moving to withdraw their
       guilty pleas. The amendment was clearly procedural, as it dictated the practices to be
       followed by defense attorneys in filing postplea motions. Moreover, far from impairing a
       vested right, the amendment actually served to expand the protections afforded to defendants
       challenging their sentences, by once again requiring counsel to follow the certification
       requirements. Accordingly, we find that the amended Rule 604(d), effective March 8, 2016,
       may be applied retroactively.
¶ 18       Furthermore, we find that the amended Rule 604(d) should be applied retroactively. Our
       supreme court has held that in determining whether a statutory amendment should apply
       retroactively, courts should consider whether such application would have “inequitable
       consequences.” Novak, 223 Ill. 2d at 331. Here, the inequitable consequences would result if
       the statutory amendment was not applied retroactively. It would be inequitable if, for a
       96-day period, defendants who only wished to challenge their sentence were not afforded the
       certification protections that they had been afforded since 1975. Indeed, the marked departure
       from the history of Rule 604(d) and the swift correction 96 days later tends to indicate that
       the December 3, 2015, amendment was nothing more than a scrivener’s error. Moreover
       despite that amendment, defense counsel did file a Rule 604(d) certificate. Thus, retroactive
       application of the March 8, 2016, amendment will not hamper our analysis in any way.

¶ 19                              II. Strict Compliance With Rule 604(d)
¶ 20        It is well-settled that defense counsel must strictly comply with the certification
       requirements of Rule 604(d). People v. Janes, 158 Ill. 2d 27, 33 (1994); People v. Love, 385
       Ill. App. 3d 736, 737 (2008). The remedy for counsel’s failure to strictly comply with those
       requirements is remand to the trial court for such compliance. Janes, 158 Ill. 2d at 33 (“[T]he
       remedy for failure to strictly comply with each of the provisions of Rule 604(d) is a remand
       to the circuit court for the filing of a new motion to withdraw guilty plea or to reconsider
       sentence and a new hearing on the motion.”).
¶ 21        In the present case, defense counsel asserted in his most recent certificate that he had
       examined the report of proceedings of the guilty plea. As to defendant’s sentencing hearing,
       however, counsel merely asserted that he was the original counsel at that hearing. Counsel
       did not certify that he examined the report of proceedings of the sentencing hearing. Because

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       Rule 604(d) requires counsel to certify that he has examined the transcript of the sentencing
       hearing (see supra ¶ 11), counsel in the present case failed to strictly comply with the rule.
       See People v. Steinmetz, 110 Ill. App. 3d 439, 442 (1982). The State concedes this point.
¶ 22       The State argues, however, that remand is not necessary here, despite counsel’s failure to
       strictly comply with Rule 604(d) in his most recent certificate. Specifically, the State posits
       that under People v. Shirley, 181 Ill. 2d 359 (1998), remand is not required because defendant
       has already been afforded a full and fair opportunity to present his postplea motion.
¶ 23       In Shirley, the defendant’s case had already been remanded once for Rule 604(d)
       compliance. Id. at 364. On remand, new defense counsel failed to file a Rule 604(d)
       certificate with her motion to reduce sentence. Id. at 365. However, previous counsel had
       filed a compliant certificate before withdrawing, and new counsel filed a compliant
       certificate four days later. Id. at 366. Our supreme court rejected the defendant’s argument
       that this failure to strictly comply with the rule’s timing requirements warranted a second
       remand, finding: “Where, as here, the defendant was afforded a full and fair second
       opportunity to present a motion for reduced sentencing, we see limited value in requiring a
       repeat of the exercise, absent a good reason to do so.” Id. at 369. The court also declared:
       “Our holding in no way retreats from this court’s call for strict compliance with our rules.”
       Id. at 370.
¶ 24       This court has expressly held that Shirley does not stand for the blanket proposition that a
       matter may only be remanded one time for compliance with Rule 604(d). People v.
       Hagerstrom, 2016 IL App (3d) 140559, ¶¶ 10-13. We wrote in Hagerstrom:
                    “The Shirley court explicitly premised its decision not to remand on the
                defendant’s having already received ‘a full and fair’ hearing following the initial
                remand, as well as on its finding that nothing on the record or in the Rule 604(d)
                certificates indicated a need for further remands. [Citation.] In other words, the
                holding in Shirley does not create a bar on successive Rule 604(d) remands when
                appropriate.” Id. ¶ 12 (quoting Shirley, 181 Ill. 2d at 369).
       The State does not argue otherwise. Instead, Shirley stands for the proposition that where a
       defendant receives a full and fair hearing, technical noncompliance with Rule 604(d) need
       not give rise to multiple remands. For example, in Shirley, multiple substantively compliant
       certificates were filed, but the timing of the certificates rendered them technically
       noncompliant. Thus, it is the substantive compliance with the Rule 604(d) certification
       requirements that ensures a full and fair postplea hearing. Love, 385 Ill. App. 3d at 739
       (“[W]here compliance with the substantive requirements of Rule 604(d) is doubtful, so is the
       fairness of the proceedings. Accordingly, multiple remands are appropriate.”).
¶ 25       The State contends that defendant did receive a full and fair postplea hearing in
       September 2014, arguing that the certificate filed at that time was compliant. See supra
       ¶¶ 5-6. However, this court held the September 2014 postplea hearing to be null and void.
       Evans, 2015 IL App (3d) 140753, ¶¶ 14, 17. Specifically, we held that the trial court was
       without jurisdiction to take any action prior to the filing of this court’s mandate. 2 It would be


           2
            Because we decided defendant’s previous appeal on jurisdictional grounds, we did not address the
       substantive issue of whether the September 2014 certificate was compliant. Moreover, we would not
       have had the jurisdiction to do so.

                                                     -5-
       irrational for this court to now find that defendant received a full and fair hearing before a
       court that lacked jurisdiction. We therefore reject the State’s argument.
¶ 26        In fact, the State’s argument illustrates the fundamental difference between the present
       case and Shirley. In Shirley, two unquestionably compliant certificates were filed, and a
       hearing was properly held before a court of competent jurisdiction. Neither of those
       certificates, however, was filed at the correct time. Thus, the issue in Shirley was one of
       timing. There our supreme court held that, in the interest of judicial economy, a technical
       shortcoming such as the mistimed filing of a Rule 604(d) certificate should be forgiven to
       avoid multiple remands, as long as the defendant had received a full and fair hearing.
¶ 27        In the present case, the issue is not timing, but jurisdiction. Unlike in Shirley, no
       compliant Rule 604(d) certificate has ever been filed in a court of competent jurisdiction. The
       trial court’s lack of jurisdiction in September 2014 is not the sort of technical shortcoming
       that was forgiven by the Shirley court.
¶ 28        In order for defendant to receive a full and fair hearing on his postplea motion, we are
       compelled to again remand the matter to the trial court for new postplea proceedings in
       compliance with Rule 604(d).

¶ 29                                      CONCLUSION
¶ 30      The judgment of the circuit court of Will County is vacated and the matter is remanded
       with directions.

¶ 31      Vacated and remanded with directions.

¶ 32       JUSTICE SCHMIDT, dissenting.
¶ 33       Defendant, notwithstanding Rule 604(d) certificate errors, has had five hearings (one of
       which has been declared void because it occurred when the trial court lacked jurisdiction).
       Four is enough. There is no reason to believe that in five appearances before the trial court
       that defendant has not had a full and fair opportunity to present his motion for reduced
       sentencing. See Shirley, 181 Ill. 2d at 369. This has become an exercise in form over
       substance. I would affirm.




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