                              2015 IL App (2d) 141202
                                   No. 2-14-1202
                          Opinion filed September 23, 2015
                  Modified upon denial of rehearing October 23, 2015
______________________________________________________________________________

                                              IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 14-CF-1993
                                       )
GORDON R. MARTELL,                     ) Honorable
                                       ) Victoria A. Rossetti,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BIRKETT delivered the judgment of the court, with opinion.
       Presiding Justice Schostok and Justice McLaren concurred in the judgment and opinion.

                                            OPINION

¶1     On September 29, 2014, defendant, Gordon R. Martell, entered a negotiated plea of guilty

to unlawful restraint (720 ILCS 5/10-3(a) (West 2014)) and was sentenced to the agreed term of

12 months in prison. On October 8, 2014, he moved to withdraw his plea, alleging that he had

not been given the time to make a fully informed decision. On October 29, 2014, defendant’s

attorney filed a certificate of compliance with Illinois Supreme Court Rule 604(d) (eff. Feb. 6,

2013). The certificate stated that the attorney had:

               “1. Consulted with the Defendant in person on October 6, 2014 and on the phone

       on 10/14/2014 to ascertain her [sic] contentions of error in the entry of the plea of guilty;
2015 IL App (2d) 141202


               2. Examined the trial court file and report of proceedings of the plea of guilty;

               3. Made any amendments to the motion necessary for adequate presentation of

       any defects in those proceedings.”

¶2     On October 29, 2014, the trial court denied defendant’s motion. He timely appealed. On

appeal, defendant argues that the order denying his motion must be vacated, and the cause

remanded, because the attorney’s Rule 604(d) certificate was deficient.          For the following

reasons, we agree.

¶3     Rule 604(d) reads, in pertinent part:

       “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. *** The 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 [the] 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.” Id.

¶4     Rule 604(d) requires strict compliance; the remedy for noncompliance is to vacate the

denial of the postjudgment motion and remand the cause. See People v. Janes, 158 Ill. 2d 27,

35-36 (1994); People v. Herrera, 2012 IL App (2d) 110009, ¶¶ 13-14. Our review is de novo.

People v. Neal, 403 Ill. App. 3d 757, 760 (2010).

¶5     Defendant’s argument is straightforward. Illinois Supreme Court Rule 604(d) (eff. Feb.

6, 2013) requires the defendant’s trial attorney to certify, among other things, that “the attorney

has consulted with the defendant either by mail or in person to ascertain [the] defendant’s



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2015 IL App (2d) 141202


contentions of error in the sentence or the entry of the plea of guilty.” (Emphasis added.) In

People v. Tousignant, 2014 IL 115329, which involved an open plea, the supreme court held that

the quoted language requires the attorney to certify that he or she has consulted with the

defendant “ ‘to ascertain [the] defendant’s contentions of error in the sentence and the entry of

the plea of guilty.’ ” (Emphasis in original.)       Id. ¶ 20.   Defendant observes that his trial

counsel’s certificate stated that he had consulted with defendant to ascertain only his

“contentions of error in the plea of guilty.” He concludes that, because the attorney did not

certify that he had consulted with defendant about the sentence, the certificate did not comply

strictly with the rule.

¶6      The State responds that applying Tousignant’s rule would make no sense here, because

defendant agreed to a specific sentence, which the trial court then imposed. As the plea was

fully negotiated, the court did not exercise any discretion in sentencing (beyond accepting the

parties’ bargain). The State argues that construing “or” to mean “and,” as Tousignant required

with an open plea, serves no purpose if the trial court did nothing in sentencing but accept the

parties’ agreement: requiring the attorney to consult with the defendant about contentions of

error in an agreed sentence would mandate “consultations *** that could only be meaningless.”

¶7      We start with Tousignant. There, the defendant entered an open guilty plea to a drug

offense.   After the trial court accepted the plea and sentenced him, he filed a motion to

reconsider the sentence. His attorney’s Rule 604(d) certificate stated that he had consulted with

the defendant in order to ascertain his contentions of error “ ‘in the sentence imposed,’ ” but not

as to the entry of the plea. Id. ¶ 4. The trial court denied the motion. Id. The appellate court

agreed with the defendant that the certificate was defective for failing to state that the attorney

had consulted with the defendant about the entry of the plea. Id. ¶ 5.



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2015 IL App (2d) 141202


¶8     The supreme court affirmed the appellate court. It noted that, although the rule requires a

statement that “the attorney has consulted with the defendant *** to ascertain [the] defendant’s

contentions of error in the sentence or the entry of the plea of guilty” (emphasis added) (Ill. S.

Ct. R. 604(d) (eff. Feb. 6, 2013)), even the State conceded that “counsel may not choose [only]

one of these arbitrarily as the subject of the consultation.” Tousignant, 2014 IL 115329, ¶ 10.

Nor should the attorney be required to consult the defendant on only the portion of the judgment

that is later challenged in the postjudgment motion: so limiting the attorney’s obligation is

neither compelled by the rule’s language nor consistent with its intent, which is “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.

Allowing the attorney to consult with the defendant about only the sentence would frustrate the

rule’s purpose of enabling the trial court to address any alleged error that might have produced

the guilty plea. Id. ¶ 18. Requiring consultation about both the plea and the sentence would

make it “more likely, rather than less likely, that all of the contentions of error were included in

the post-plea motion, enabling the trial court to address and correct any improper conduct or

errors of the trial court that may have produced the guilty plea.” Id. ¶ 19.

¶9     Tousignant involved an open plea, in which the trial court held a full sentencing hearing

and was unconstrained by any agreement on the sentence. The parties here disagree on whether,

or to what extent, Tousignant applies to a negotiated plea and, specifically, to a fully negotiated

plea such as the one here. From the internal evidence, defendant has the better argument:

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 limited to open pleas. Further, Tousignant emphasizes that

the sufficiency of the consultation does not depend on the scope of the motion that counsel files



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2015 IL App (2d) 141202


afterward. Tousignant does not suggest that, if the plea is negotiated, counsel may consult the

defendant only about the plea.

¶ 10   We note that Rule 604(d) states, “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.”

Ill. S. Ct. R. 604(d) (eff. Feb. 6, 2013). Nonetheless, even when the plea is negotiated, a

defendant may move only to reconsider his sentence and may appeal from that judgment—as

long as the motion and the appeal are based on something other than a contention that the

sentence is merely excessive. See People v. Palmer-Smith, 2015 IL App (4th) 130451, ¶ 28

(defendant who pleaded guilty in exchange for sentencing cap was not barred from arguing in

motion to reconsider sentence that trial court considered improper factors); People v. Hermann,

349 Ill. App. 3d 107, 114 (2004) (defendant’s motion was proper, as it alleged not that sentence

was excessive but that trial court lacked authority to impose it); People v. Economy, 291 Ill. App.

3d 212, 219 (1997) (defendant who enters negotiated guilty plea may proceed on motion to

reconsider sentence arguing that trial court considered improper factors).

¶ 11   With a partially negotiated guilty plea and a sentence entered thereon, the defendant

might well have concerns about both the entry of the plea and the sentence, and there is no basis

in logic or policy to depart from the requirement of Rule 604(d), as construed by Tousignant, that

the defendant’s attorney “ ‘ascertain [the] defendant’s contentions of error in the sentence and

the entry of the plea of guilty.’ ” (Emphasis in original.) Tousignant, 2014 IL 115329, ¶ 20.

Because the defendant who enters a partially negotiated plea may still move to reconsider both

the entry of the plea and the sentence, there is no reason to allow the attorney to be concerned




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2015 IL App (2d) 141202


with only one or the other. Tousignant does not support limiting the consultation requirement

merely because the defendant entered a partially negotiated plea.

¶ 12   The context is different when the defendant has entered a fully negotiated guilty plea, but

it does not follow that the rule must receive a different interpretation. True, the differences are

significant. When the trial court sentences a defendant to a specific term to which he has

(apparently) agreed, the court does not exercise the discretion that it does, for example, when the

parties have agreed only to a sentencing cap. Although the court retains the initial authority to

reject the agreement, once it accepts the agreement it simply enters a predetermined sentence. It

does not weigh sentencing factors and thus does not consider arguably improper ones.

¶ 13   On the other hand, the court might be faced with an agreed sentence that it lacks the

authority to impose. Or, the agreed sentence might suffer from some other infirmity, such as

omitting or misstating the appropriate term of mandatory supervised release. Thus, even with a

fully negotiated plea, the trial court’s role in sentencing, and the potential for sentencing error,

have dwindled but not wholly disappeared. Therefore, even after the imposition of an agreed

sentence, the defendant’s attorney ought not forgo all concern about infirmities in the sentence.

¶ 14   We return to Rule 604(d)’s consultation requirement, as construed by Tousignant. As

noted, there is nothing in Tousignant that explicitly, or even by reasonable implication, limits the

attorney’s dual obligation to a particular type of plea. The court could have so limited its holding

to the type of plea before it—an open plea, with full judicial discretion at sentencing—but it did

not do that. As important, or more so, nothing in the rule itself states or implies that the

consultation requirement’s scope depends on the type of plea on which the judgment is based.

¶ 15   Beyond the rule itself and Tousignant, we also note People v. Mason, 2015 IL App (4th)

130946. There, the defendant agreed to plead guilty to criminal sexual abuse, and the State



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2015 IL App (2d) 141202


agreed to dismiss a charge of criminal sexual assault and recommend a sentence of 30 months’

probation. The trial court accepted the negotiated plea, dismissed the sexual-assault charge, and

sentenced the defendant accordingly. Id. ¶ 4. The defendant then moved to withdraw his plea,

alleging a speedy-trial violation. Id. ¶ 5. His attorney’s Rule 604(d) certificate copied the

language of the rule, stating that the attorney had consulted with the defendant “ ‘to ascertain his

contentions of error in the sentence or the entry of the plea of guilty.’ ” Id. ¶ 12 (quoting Ill. S.

Ct. R. 604(d) (eff. Feb. 6, 2013)).

¶ 16   On appeal, the defendant contended that the certificate was defective in light of

Tousignant. The appellate court agreed. The court first discussed People v. Mineau, 2014 IL

App (2d) 110666-B, which involved a similarly phrased Rule 604(d) certificate in a case where

there was no agreement on sentencing.         In Mineau, we held that the certificate satisfied

Tousignant’s requirement that the attorney consult with the defendant about both sentencing and

the proceedings that led to the guilty plea. Mason, 2015 IL App (4th) 130946, ¶ 10; see Mineau,

2014 IL App (2d) 110666-B, ¶ 18. We noted that, because defense counsel filed both a motion

to withdraw the plea and an alternative motion to reconsider the sentence, it was reasonable to

infer that defense counsel consulted with the defendant about both types of error. Mineau, 2014

IL App (2d) 110666-B, ¶ 18.

¶ 17   The Mason court then noted that, in People v. Scarbrough, 2015 IL App (3d) 130426,

¶ 39, the Third District disagreed with Mineau that “a verbatim recital of the rule complies with

Rule 604(d)’s certificate requirement.” Mason, 2015 IL App (4th) 130946, ¶ 11. The Fourth

District agreed with Scarbrough that reproducing the pertinent verbiage of Rule 604(d) does not

demonstrate compliance therewith, and (unlike the Third District in Scarbrough (Scarbrough,




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2015 IL App (2d) 141202


2015 IL App (3d) 130426, ¶ 41)) it remanded for strict compliance. Mason, 2015 IL App (4th)

130946, ¶ 14.

¶ 18   For our present purposes, the importance of Mason is not its explicit holding about the

phraseology that is needed to comply with Tousignant, but its implicit holding that Tousignant’s

rule of full consultation applies even when the parties have agreed on a specific sentence and the

trial court does not exercise discretion in sentencing. Mason involved an agreement on a specific

sentence, but the court held that trial counsel was still obligated to consult with the defendant

about possible errors in both sentencing and the proceedings that resulted in the entry of the plea

of guilty. Thus, Mason supports defendant here.

¶ 19   In view of the text of Rule 604(d); the construction of the rule in Tousignant; and

Mason’s implicit holding that Tousignant applies even when the parties have negotiated a

specific sentence, we shall not carve out an exception, by implication, for fully negotiated guilty

pleas. The requirement that the attorney consult with the defendant about both the plea and

sentencing even when the sentence was predetermined by the plea agreement might seem

hypertechnical. Nonetheless, we believe that any qualification of the categorical language of

Rule 604(d) is the prerogative of our supreme court, not this court. If the intent of the rule is to

allow a defense attorney in a situation such as the one here to forgo consultation about any errors

in sentencing, then “the rule should be amended to more accurately reflect [the] court’s intent.”

Tousignant, 2014 IL 115329, ¶ 27 (Thomas, J., specially concurring).

¶ 20   Moreover, we note that it is not difficult for an attorney to consult with the defendant

about both the entry of the guilty plea and the sentence. The construction of Rule 604(d) might

be obscure in some respects, but, after Tousignant, a reasonable measure of caution should avoid

the type of issue that we face here.



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2015 IL App (2d) 141202


¶ 21   Given the foregoing, we must conclude that defendant’s attorney failed to comply with

Rule 604(d). Thus, we vacate the order denying defendant’s postjudgment motion and remand

the cause for (1) the filing of a valid Rule 604(d) certificate; (2) the opportunity to file a new

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

¶ 22   For the foregoing reasons, the order of the circuit court of Lake County is vacated, and

the cause is remanded.

¶ 23   Vacated and remanded.




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