                                       2018 IL 122187



                                         IN THE

                                SUPREME COURT

                                             OF

                          THE STATE OF ILLINOIS





                                    (Docket No. 122187)

               THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                          JORDAN EASTON, Appellee.


                              Opinion filed November 29, 2018.



        JUSTICE NEVILLE delivered the judgment of the court, with opinion.

        Chief Justice Karmeier and Justices Thomas, Kilbride, Garman, Burke, and
     Theis concurred in the judgment and opinion.



                                          OPINION

¶1        Defendant, Jordan Easton, pled guilty to aggravated unlawful possession of a
     stolen motor vehicle, unlawful possession of a stolen motor vehicle, and four
     counts of unlawful use of a credit card. At sentencing, the circuit court of Kendall
     County imposed concurrent prison terms for all six convictions. Defendant moved
     for reconsideration of the sentences, and defense counsel filed a certificate pursuant
     to Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013). The circuit court denied
     the motion, and defendant appealed. The appellate court vacated the circuit court’s
     judgment and remanded for further proceedings, holding that defense counsel’s
     certificate did not comply with Illinois Supreme Court Rule 604(d) (eff. Dec. 3,
     2015), which was amended during the pendency of the appeal. 2017 IL App (2d)
     141180. This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315
     (eff. Mar. 15, 2016). For the reasons that follow, we affirm the judgment of the
     appellate court, albeit on different grounds.


¶2                                         I. BACKGROUND

¶3        On August 26, 2014, defendant appeared in the circuit court on six distinct
     criminal cases. He entered open pleas of guilty to one count of aggravated unlawful
     possession of a stolen motor vehicle (625 ILCS 5/4-103.2(a)(7)(A) (West 2012))
     (charged in case No. 2013 CF 333), one count of unlawful possession of a stolen
     motor vehicle (id. § 4-103(a)(1)) (charged in case No. 2014 CF 53), and four counts
     of unlawful use of a credit card (720 ILCS 5/17-36 (West 2012)) (charged in case
     Nos. 2014 CF 24, 2014 CF 138, 2014 CF 139, and 2014 CF 140). The circuit court
     sentenced him to prison terms of 10 years each for aggravated unlawful possession
     of a stolen motor vehicle and unlawful possession of a stolen motor vehicle and
     three terms of 6 years and one term of 5 years for unlawful use of a credit card, with
     all sentences to be served concurrently. In five of the six cases, the circuit court also
     ordered defendant to make restitution payments to the victims after his release from
     prison.

¶4       On October 29, 2014, defendant’s counsel filed a motion for reconsideration,
     claiming that the sentences imposed were excessive and that the court failed to
     properly consider several factors in mitigation. Along with the motion to
     reconsider, defense counsel also filed a certificate as required under Rule 604(d). 1

¶5       At the time the certificate was filed, Rule 604(d) required counsel to certify,
     inter alia, that he or she “has consulted with the defendant *** to ascertain
     defendant’s contentions of error in the sentence or the entry of the plea of guilty,

         1
           The record on appeal includes six identical copies of the motion to reconsider listing all six
     criminal case numbers in the caption. The same is true of defense counsel’s Rule 604(d) certificate.
     However, the appellate court and the parties refer to these identical documents in the singular. For
     the sake of clarity and continuity, we do the same.




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     [and] has examined the trial court file and report of proceedings of the plea of
     guilty.” (Emphasis added.) Ill. S. Ct. R. 604(d) (eff. Feb. 6, 2013). The certificate
     filed by defendant’s attorney mirrored the language of Rule 604(d) that was in
     effect at that time and stated, in pertinent part, as follows:

            “1. I have consulted with the Defendant in person to ascertain his
        contentions of error in the imposition of the sentence or the entry of plea of
        guilty;

            2. I have examined the trial court file and report of proceedings of the pleas
        of guilty.”

     The circuit court denied the motion on November 26, 2014, and defendant
     immediately appealed.

¶6       While defendant’s appeal was pending, Rule 604(d) was amended to require
     that counsel certify that he or she “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). The amended rule also
     requires counsel to certify that he or she 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.” (Emphases added.) Id.

¶7       On appeal, defendant argued that the amended version of Rule 604(d) applied
     retroactively to his case and that his counsel’s certificate failed to satisfy the
     requirements of the amended rule because counsel did not certify that she had
     consulted with him as to his contentions of error with regard to both his guilty plea
     and his sentence.

¶8       The appellate court held that, because the amended version of Rule 604(d) is
     purely procedural, it applies retroactively to defendant’s case. 2017 IL App (2d)
     141180, ¶ 17. Applying the amended rule, the appellate court determined that
     defense counsel’s certificate was deficient on two grounds: it did not certify that
     she had consulted with defendant as to his contentions of error with regard to both
     his guilty plea and his sentence, and it did not certify that she had reviewed the
     report of proceedings of the sentencing hearing. Id. ¶ 18. Accordingly, the appellate
     court vacated the judgment of the circuit court and remanded the case for further




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       postplea proceedings, including the filing of a new Rule 604(d) certificate, a new
       motion to withdraw the guilty plea and/or reconsider the sentences, if necessary,
       and a new motion hearing. Id. ¶ 19.

¶9        The State appeals to this court.


¶ 10                                      II. ANALYSIS

¶ 11                   A. Retroactivity of the Amendment to Rule 604(d)

¶ 12       The fundamental issue in this appeal is whether the certificate filed by
       defendant’s counsel complied with the requirements of Rule 604(d). To resolve
       that question, we first determine which version of Rule 604(d) applies to
       defendant’s case. Therefore, we initially address the State’s argument that the
       appellate court erred in holding that the amended version of Rule 604(d) applies
       retroactively to defendant’s case, which was on appeal when the amendment
       became effective. According to the State, the sufficiency of defense counsel’s
       certificate is governed by the preamendment version of the rule that was in effect
       when the notice of appeal was filed in November 2014.

¶ 13       As is true with statutes, the determination of the temporal reach of a supreme
       court rule is a matter of construction. See People v. Hunter, 2017 IL 121306, ¶ 15.
       The same principles that govern the construction of statutes also guide the
       interpretation of this court’s rules. People v. Salem, 2016 IL 118693, ¶ 11; In re
       H.L., 2015 IL 118529, ¶ 6. Our goal is to ascertain and give effect to the intention of
       the drafters of the rule. Salem, 2016 IL 118693, ¶ 11; In re H.L., 2015 IL 118529,
       ¶ 6. As with a statute, the interpretation of a supreme court rule and the
       determination of its temporal reach present questions of law that we review
       de novo. Hunter, 2017 IL 121306, ¶ 15; In re H.L., 2015 IL 118529, ¶ 6.

¶ 14       Given that statutes and supreme court rules are treated congruently, we employ
       the same analytical framework to determine whether they may be applied
       retroactively. See In re Marriage of Duggan, 376 Ill. App. 3d 725, 728-29 (2007);
       People ex rel. Madigan v. Petco Petroleum Corp., 363 Ill. App. 3d 613, 619-21
       (2006). Our retroactivity analysis is premised on that set forth by the United States
       Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244 (1994), which was




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       adopted by this court in Commonwealth Edison Co. v. Will County Collector, 196
       Ill. 2d 27 (2001). Hunter, 2017 IL 121306, ¶ 20; People ex rel. Alvarez v. Howard,
       2016 IL 120729, ¶ 19.

¶ 15        Under that analysis, we first look to the rule itself to ascertain whether its
       temporal reach has been specifically articulated. See Hunter, 2017 IL 121306, ¶ 20
       (citing Howard, 2016 IL 120729, ¶ 19). If the rule contains such an express intent,
       it must be given effect unless doing so would violate the constitution. Id. If the rule
       is silent as to its temporal reach, the court must determine whether the rule has a
       retroactive impact such that 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.” (Internal quotation marks omitted.) Id.
       (quoting Howard, 2016 IL 120729, ¶ 19, quoting Commonwealth Edison, 196 Ill.
       2d at 38, quoting Landgraf, 511 U.S. at 280). If the rule does not have a retroactive
       impact, it may be applied retroactively; if the rule has a retroactive impact, it is
       presumed to apply prospectively. Id.

¶ 16      However, based on section 4 of the Statute on Statutes (5 ILCS 70/4 (West
       2016)), Illinois courts need not advance beyond the first step of the Landgraf
       analysis. Hunter, 2017 IL 121306, ¶ 21 (citing Howard, 2016 IL 120729, ¶ 20).
       Section 4 of the Statute on Statutes states:

          “No 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. If any penalty, forfeiture or punishment be mitigated by any
          provisions of a new law, such provision may, by the consent of the party
          affected, be applied to any judgment pronounced after the new law takes effect.
          This section shall extend to all repeals, either by express words or by
          implication, whether the repeal is in the act making any new provision upon the
          same subject or in any other act.” 5 ILCS 70/4 (West 2016).




                                                -5­
¶ 17       Section 4 “ ‘is a general savings clause, which this court has interpreted as
       meaning that procedural changes *** will be applied retroactively, while
       substantive changes are prospective only.’ ” Hunter, 2017 IL 121306, ¶ 22 (quoting
       Howard, 2016 IL 120729, ¶ 20). If the temporal reach is not clearly indicated
       within the text of the new provision, then the default directive set forth in section 4
       of the Statute on Statutes applies. Id. Therefore, an amendment that is purely
       procedural will apply retroactively unless a constitutional impediment precludes its
       application. Howard, 2016 IL 120729, ¶ 28.

¶ 18       Here, the December 3, 2015, amendment to Rule 604(d) did not expressly
       indicate its temporal reach. Consequently, section 4 of the Statute on Statutes
       governs, and we consider whether that amendment to Rule 604(d) is substantive or
       procedural. 2

¶ 19       A procedural rule prescribes the method by which a party seeks to enforce a
       right or obtain relief. People v. Atkins, 217 Ill. 2d 66, 71-72 (2005) (citing Rivard v.
       Chicago Fire Fighters Union, Local No. 2, 122 Ill. 2d 303, 310-11 (1988)).
       Conversely, substantive rules establish the rights that may be redressed under a
       particular procedure. Id. Rules of procedure involve matters such as pleading,
       evidence, and practice. Id. Rules of practice direct the course of proceedings before
       the court. Id.

¶ 20      Rule 604(d) governs the procedure by which a criminal defendant may appeal
       from a judgment entered on a guilty plea, and its terms dictate the practices that
       must be followed by defense attorneys in postplea proceedings. Given its
       procedural nature, amendments to the rule may be applied retroactively. That
       conclusion, however, does not resolve the inquiry in this case.

¶ 21       As this court has explained, section 4 of the Statute on Statutes requires that
       “ ‘the proceedings thereafter’—after the enactment of the new procedural
       statute—‘shall conform, so far as practicable, to the laws in force at the time of such
       proceeding.’ ” (Emphasis in original.) Hunter, 2017 IL 121306, ¶ 31 (quoting 5
       ILCS 70/4 (West 2016)). Thus, “[s]ection 4 contemplates the existence of
       proceedings after the new or amended [rule] is effective to which the new

           2
            Illinois Supreme Court Rule 2(a) (eff. July 1, 2017) provides that this court’s rules “are to be
       construed in accordance with the appropriate provisions of the Statute on Statutes.”




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       procedure could apply.” Id. This understanding of section 4 has been
       acknowledged by our use of the phrase “ongoing proceedings” when referring to
       the retroactive application of a procedural amendment under that provision. Id.; see
       also Howard, 2016 IL 120729, ¶ 28; People v. Ziobro, 242 Ill. 2d 34, 46 (2011);
       People v. Zito, 237 Ill. 434, 440 (1908).

¶ 22      Moreover, as we observed in Hunter, Landgraf addressed the application of a
       procedural rule to cases that antedate the amendment, stating:

               “ ‘Of course, the mere fact that a new rule is procedural does not mean that
          it applies to every pending case. A new rule concerning the filing of complaints
          would not govern an action in which the complaint had already been properly
          filed under the old regime, and the promulgation of a new rule of evidence
          would not require an appellate remand for a new trial.’ ” Hunter, 2017 IL
          121306, ¶ 34 (quoting Landgraf, 511 U.S. 275 n.29).

       We further noted that Justice Scalia made the following observation in his special
       concurrence:

          “ ‘A new rule of evidence governing expert testimony, for example, is aimed at
          regulating the conduct of trial, and the event relevant to retroactivity of the rule
          is introduction of the testimony. Even though it is a procedural rule, it would
          unquestionably not be applied to testimony already taken—reversing a case on
          appeal, for example, because the new rule had not been applied at a trial which
          antedated the statute.” (Emphasis in original.) Id. ¶ 35 (quoting Landgraf, 511
          U.S. at 291-92 (Scalia, J., concurring, joined by Kennedy and Thomas, JJ.)).

¶ 23       In this case, defendant’s postplea proceedings in the circuit court were
       completed more than a year before Rule 604(d) was amended in December 2015.
       As a consequence, there were no “ongoing proceedings” to which the amended rule
       would apply. The result of the appellate court’s decision was to necessitate new
       proceedings in order to apply an amendment to a procedural rule that postdated the
       postplea proceedings. That conclusion is not warranted under our retroactivity
       jurisprudence, and as expressed in Hunter, we “have grave concerns about such a
       result.” Id. ¶ 33. Therefore, the appellate court erred holding that the amended
       version of Rule 604(d) applied retroactively to defendant’s case on appeal.




                                               -7­
¶ 24                     B. Sufficiency of Defense Counsel’s Certificate
                                      Under the Prior Rule

¶ 25      Because the amended version of Rule 604(d) does not apply, we examine
       whether defense counsel’s certificate satisfied the requirements of the rule that was
       in effect when the certificate and notice of appeal were filed. The issue of
       compliance with Rule 604(d) presents a legal question that we review de novo. See
       People v. Wilmington, 2013 IL 112938, ¶ 26 (citing People v. Thompson, 238 Ill.
       2d 598, 606-07 (2010)); People v. Hall, 198 Ill. 2d 173, 177 (2001).

¶ 26       It is firmly established that the certificate filed by counsel must strictly comply
       with the requirements of Rule 604(d). People v. Janes, 158 Ill. 2d 27, 35 (1994). If
       the certificate fails to meet this standard, a reviewing court must remand the case to
       the trial court for proceedings that strictly comply with Rule 604(d). Id. at 33.

¶ 27       At the time defense counsel filed her certificate, Rule 604(d) provided, in
       pertinent part, as follows:

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

¶ 28       In People v. Tousignant, 2014 IL 115329, this court addressed the scope of
       defense counsel’s obligations under that version of Rule 604(d) to determine
       whether the rule “requires counsel to certify that he consulted with the defendant
       regarding defendant’s contentions of error in the sentence and the guilty plea, or
       only regarding contentions of error relevant to the defendant’s post-plea motion.”
       (Emphasis in original.) Id. ¶ 7. In so doing, we recognized that when the literal
       meaning of the word “or” is at variance with the purpose of a rule, it will be
       understood to mean “and” where necessary to effectuate the intent of the drafters.
       Id. ¶¶ 11-12 (citing John P. Moriarty, Inc. v. Murphy, 387 Ill. 119, 129-30 (1944)).




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¶ 29       We noted that Rule 604(d) is designed to ensure that any potential errors in the
       entry of a guilty plea are brought to the trial court’s attention prior to the filing of an
       appeal. Id. ¶ 16. We also observed that the certificate requirement included in the
       rule “enable[s] the trial court 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. We determined that, with
       regard to defense counsel’s consultation obligation, a literal reading of the word
       “or” is at variance with the rule’s purpose and frustrates the goal of allowing trial
       courts to address potential improprieties in the guilty plea before an appeal is taken.
       Id. ¶ 18. However, construing the rule to require that counsel certify he or she
       consulted with the defendant about both sentencing and plea errors makes it more
       likely that all potential errors are addressed in the postplea proceeding. Id. ¶ 19.
       Accordingly, we held that, to effectuate the intent of Rule 604(d)’s consultation
       obligation, “the word ‘or’ is considered to mean ‘and.’ ” (Emphases added.) Id.
       ¶ 20. Further, we expressly stated that, “[u]nder this reading, counsel is required to
       certify that he has consulted with the defendant ‘to ascertain defendant’s
       contentions of error in the sentence and the entry of the plea of guilty.’ ” (Emphasis
       in original.) Id.

¶ 30       Thus, our decision in Tousignant clearly held that, in order to comply with Rule
       604(d), defense counsel must certify that he or she consulted with the defendant as
       to both types of error. Id. Although Tousignant was controlling precedent at the
       time of defendant’s postplea proceeding, defense counsel’s certificate stated that
       she had “consulted with the Defendant *** to ascertain his contentions of error in
       the imposition of the sentence or the entry of plea of guilty.” (Emphasis added).
       Therefore, the certificate failed to comply with the requirements of Rule 604(d) as
       construed by this court in Tousignant.

¶ 31       The State argues that, although defense counsel failed to tailor her certificate to
       our holding in Tousignant, the certificate was sufficient because it strictly complied
       with the “text” of the rule. The State posits that, in light of Tousignant, defense
       counsel’s use of the word “or” means that she “necessarily certified” she had
       consulted with defendant about both sentencing and plea errors. This argument is
       without merit because it is premised on a fundamental misunderstanding of both
       the purpose of the rule and our decision in Tousignant.




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¶ 32       As explained above, the goal of Rule 604(d) is to ensure that counsel’s
       consultation with defendant encompasses any contentions of error in both the entry
       of the guilty plea and the imposition of sentence. The point of the rule is to protect
       the defendant’s interests through adequate consultation. The certificate serves as
       evidence that the requisite consultation has taken place. It is the mechanism by
       which the circuit court is able to verify that counsel has fulfilled the rule’s
       requirements. Where a certificate uses the word “or” rather than “and,” it does not
       confirm that both types of error were discussed with the defendant. Such a
       certificate is deficient because it offers the circuit court no assurance of counsel’s
       compliance with the consultation obligation.

¶ 33       Contrary to the State’s argument, the fact that “or” is construed as “and” within
       the context of Rule 604(d) does not require that it be interpreted the same way when
       used in the context of counsel’s certificate. The reason for this lies in the
       fundamental nature of the type of language being examined. In construing the
       language of the rule, our task is to ascertain the intent of its drafters and explain
       what burdens are imposed on counsel—our interpretation operates as a directive to
       guide future conduct.

¶ 34       When examining a certificate filed pursuant to the rule, our task is to determine
       whether counsel has actually satisfied that directive. The certificate relates the
       details of counsel’s consultation with the defendant. Its objective is to describe past
       conduct—i.e., the factual circumstances of an interaction with defendant that has
       already taken place. In examining the sufficiency of the certificate, the court is not
       seeking to ascertain counsel’s intent in its drafting—rather, the court is charged
       with evaluating counsel’s prior actions to determine whether the requirements of
       the rule have been satisfied. The focus is to ascertain what counsel actually did to
       achieve compliance with the rule. Given the nature and function of the certificate,
       counsel’s use of the term “or” does not serve as a guarantee of compliance with
       Rule 604(d)’s imperatives.

¶ 35      In addition, the State’s argument misapprehends the import of our decision in
       Tousignant. The clarity of our statement that “counsel is required to certify” that he
       or she has consulted with the defendant as to both types of error cannot be
       challenged. That statement held authoritative weight and served to modify how the
       consultation requirement in Rule 604(d) must be understood and satisfied. Our




                                               - 10 ­
       construction of the rule mandates that defense counsel specify in the certificate that
       he or she has consulted with defendant as to both types of error. Thus, Tousignant
       held, in essence, that tracking the “text” of the rule is inadequate, and a certificate
       that uses the word “or” to describe the consultation with defendant is deficient.

¶ 36       Moreover, the State’s position that defense counsel’s certificate in this case
       complied with the rule is at odds with the underlying justification for our decision
       in Tousignant. We held that construing “or” to mean “and” with regard to the
       consultation obligation was necessary to effectuate the intent of the drafters and to
       advance a primary purpose of the rule. See id. ¶¶ 11-12, 16, 18, 20. Acceptance of
       the State’s argument directly contravenes that intent and impedes the purpose of the
       rule, where use of the word “or” does not confirm that counsel discussed both types
       of errors with the defendant.

¶ 37       Because defense counsel’s certificate did not comply with Rule 604(d) as
       construed by Tousignant, defendant’s case must be remanded to the circuit court
       for new postplea proceedings, including (1) the filing of a new 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 (3) a new motion hearing. See e.g. People v. Lindsay, 239 Ill. 2d 522, 531
       (2011). On remand, counsel is required to comply with the current rule, which
       codifies the holding in Tousignant and also imposes the additional requirement that
       counsel review the report of proceedings in the sentencing hearing.


¶ 38                                    III. CONCLUSION

¶ 39      For the foregoing reasons, the judgment of the appellate court is affirmed.


¶ 40      Appellate court judgment affirmed.

¶ 41      Circuit court judgment vacated.

¶ 42      Cause remanded.




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