                                  Illinois Official Reports

                                          Appellate Court



                             People v. Axelson, 2015 IL App (2d) 140173



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      ORVILLE AXELSON, Defendant-Appellant.


District & No.               Second District
                             Docket No. 2-14-0173


Filed                        January 9, 2015


Held                         The denial of defendant’s postjudgment motion was vacated on the
(Note: This syllabus         ground that defendant’s counsel failed to strictly comply with
constitutes no part of the   Supreme Court Rule 604(d) when his certificate stated that he
opinion of the court but     consulted with defendant about his contentions of error with respect to
has been prepared by the     his guilty plea but did not mention any contentions of sentencing
Reporter of Decisions        errors, and the parties agreed that the cause had to be remanded to
for the convenience of       allow defendant to file a new motion, if desired, to allow his counsel to
the reader.)                 file a complete and correct certificate, and to have the motion heard in
                             compliance with Rule 604(d), but the parties disagreed as to whether
                             defendant should be allowed to seek the withdrawal of his guilty plea,
                             reconsideration of his sentences, or both, and in view of the language
                             of Rule 605(c) stating that it applies when concessions have been
                             made by the prosecution relating to defendant’s sentences, and not
                             merely the charges pending, as in defendant’s case, where the
                             prosecution agreed to forego any recommendation that consecutive
                             sentences be imposed, the proceedings on remand would have to
                             follow Rule 605(c) and defendant would only be allowed to withdraw
                             his guilty plea and vacate the judgment.


Decision Under               Appeal from the Circuit Court of Winnebago County, Nos.
Review                       10-CF-905, 10-CF-1425; the Hon. Rosemary Collins, Judge,
                             presiding.
     Judgment                 Vacated and remanded with directions.



     Counsel on               Michael J. Pelletier and Thomas A. Lilien, both of State Appellate
     Appeal                   Defender’s Office, of Elgin, for appellant.

                              Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M.
                              Bauer and Barry W. Jacobs, both of State’s Attorneys Appellate
                              Prosecutor’s Office, of counsel), for the People.



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


                                               OPINION

¶1         Defendant, Orville Axelson, pleaded guilty to one count each of burglary (720 ILCS
       5/19-1(a) (West 2010)) and unlawful possession of a stolen motor vehicle (625 ILCS
       5/4-103(a)(1) (West 2010)) and was sentenced to concurrent 10-year prison terms. The trial
       court denied his postjudgment motion, and he appeals. On appeal, defendant argues that,
       because his attorney failed to file a proper certificate of compliance with Illinois Supreme
       Court Rule 604(d) (eff. July 1, 2006), the order denying his motion must be vacated and the
       cause must be remanded.
¶2         The State confesses error and agrees that the cause must be remanded. The parties disagree,
       however, on the proper procedure on remand. Defendant contends that, because he entered a
       nonnegotiated plea, Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001) applies. The State
       contends that defendant’s plea was negotiated, so that Illinois Supreme Court Rule 605(c) (eff.
       Oct. 1, 2001) applies. We agree with the State and remand the cause with directions.
¶3         In case No. 10-CF-905, defendant was charged with two counts of burglary and one count
       of possession of burglary tools (720 ILCS 5/19-2(a) (West 2010)). In case No. 10-CF-1425, he
       was charged with one count of unlawful possession of a stolen motor vehicle. The cases were
       consolidated.
¶4         On April 17, 2012, the parties presented an agreement under which defendant would plead
       guilty to one count of burglary and the count of unlawful possession of a stolen motor vehicle,
       and the other charges would be dismissed. In questioning defendant, the judge asked, “Is there
       any agreement about what the sentencing would be?” Defendant said, “No.” The judge then
       stated, “That’s correct, too. What we call an open plea.” After further admonishments, the
       judge stated, “[B]ecause this is what’s called an open plea that means that there is no
       agreement about what the sentence will be.”


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¶5          The judge then stated, “And it’s my understanding that the sentences will be concurrent.”
       Defendant’s attorney, Wendell Coates, responded, “That’s correct.” The judge explained to
       defendant what “concurrent” meant but did not specifically inform him that the law allowed
       consecutive sentencing in his case. After further admonishments and the presentation of the
       factual basis, the court accepted the plea. On June 13, 2012, defendant was sentenced to
       concurrent 10-year prison terms.
¶6          Coates later withdrew from the case. On January 13, 2014, defendant’s new counsel,
       Michael Phillips, filed an amended motion to withdraw his guilty plea and, alternatively, to
       reduce his sentences. It alleged defects in the guilty-plea hearing and in the sentencing process.
¶7          On January 13, 2014, at a status hearing without defendant present, Phillips stated that the
       motion was “defendant’s motion to withdraw his guilty plea. *** And to–and/or in the
       alternative to reduce sentence.” The judge noted, “Actually, Counsel, this was a cap case. So
       when there’s a cap, it’s a motion to withdraw plea. At least that’s my understanding of the
       law.” Phillips responded, “That’s my understanding too. If there’s an agreed sentence on the
       plea agreement [sic], then you have to make a motion to withdraw.”
¶8          On February 7, 2014, Phillips submitted a certificate stating that he had consulted with
       defendant “to ascertain [his] contentions of error regarding the entry of a Plea of Guilty”; that
       he had examined the trial court file and the report of proceedings of the guilty-plea hearing;
       and that he had made any amendments to the motion necessary to present any defects in the
       proceedings.
¶9          On February 11, 2014, the trial court denied defendant’s motion. He timely appealed.
¶ 10        On appeal, the parties agree that the ruling on the postjudgment motion must be vacated,
       and the cause remanded, because Phillip’s certificate did not strictly comply with Rule 604(d).
       See People v. Janes, 158 Ill. 2d 27, 35 (1994) (strict compliance required). Rule 604(d)
       requires an attorney to certify that he has consulted with the defendant “to ascertain [the]
       defendant’s contentions of error in the sentence or the entry of the plea of guilty.” Ill. S. Ct. R.
       604(d) (eff. July 1, 2006). As interpreted, this language requires counsel 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.) People v. Tousignant, 2014 IL
       115329, ¶ 20; see Ill. S. Ct. R. 604(d) (eff. July 1, 2006). Here, Phillips’ certificate stated that
       he had consulted with defendant “to ascertain [his] contentions of error regarding the entry of a
       Plea of Guilty” but did not mention contentions of error regarding defendant’s sentences. Thus,
       it did not strictly comply with Rule 604(d).
¶ 11        The parties agree that the order denying defendant’s motion must be vacated, and the cause
       remanded, so that defendant may (1) file a new postjudgment motion if he wishes; (2) have
       counsel file a complete and correct Rule 604(d) certificate; and (3) have the motion heard, all
       in strict compliance with Rule 604(d). See Tousignant, 2014 IL 115329, ¶¶ 5, 23. We agree.
¶ 12        The parties disagree, however, on one matter. Defendant asserts that, on remand, he must
       be allowed to move either to withdraw his guilty plea, to reconsider his sentences, or both.
       Accordingly, he requests that we direct the trial court first to admonish him per Rule 605(b),
       which applies when “a judgment is entered on a plea of guilty, other than a negotiated plea of
       guilty.” Ill. S. Ct. R. 605(b) (eff. Oct. 1, 2001). Rule 605(c), by contrast, applies when a
       judgment is entered on a negotiated plea of guilty, i.e., “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 and not merely to the

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       charge or charges then pending.” Ill. S. Ct. R. 605(c) (eff. Oct. 1, 2001). Defendant notes that,
       at the guilty-plea hearing, he stated that there was no agreement on his sentences, and the trial
       judge stated that he was entering an “open” plea. Defendant concludes that, because his plea
       was not negotiated, the proceedings on remand must follow Rule 605(b).
¶ 13        The State responds that the proceedings on remand must follow Rule 605(c), under which
       defendant may move only to withdraw his guilty plea and vacate the judgment. The State
       reasons that defendant’s plea was in reality a negotiated one, because, as part of the agreement,
       the prosecution elected not to recommend consecutive sentences. The parties implied this at
       the hearing, and, indeed, the trial judge later recognized that this was a “cap” case.
¶ 14        The resolution of this issue turns on the construction of Rule 605. We must effectuate the
       intent of the rule’s drafters, the best evidence of which is the rule’s language, given its plain
       meaning. Tousignant, 2014 IL 115329, ¶ 8.
¶ 15        Rule 605(c) applies when “the prosecution has made concessions relating to the sentence to
       be imposed and not merely to the charge or charges then pending.” Ill. S. Ct. R. 605(c) (eff.
       Oct. 1, 2001). This language is plain, and it applies here. Whatever defendant and the trial
       judge said at one point, the guilty-plea hearing as a whole proves that the prosecution did make
       a concession relating to the sentences to be imposed–it agreed to forgo any recommendation
       that defendant receive consecutive sentences. That objective fact controls. Whether to apply
       Rule 605(b) or 605(c) depends on the character of the plea and the agreement, if any,
       underlying it, and not on the defendant’s subjective understanding of his plea. Of course, any
       inconsistency between the actual plea and the defendant’s understanding thereof might support
       a claim of error to be raised later in a postjudgment motion. That is a separate matter, and we
       intimate no opinion on whether any such misunderstanding might provide grounds for relief on
       remand.
¶ 16        For the foregoing reasons, we (1) vacate the order denying defendant’s postjudgment
       motion; and (2) remand the cause for postjudgment proceedings in accordance with this
       opinion and Rules 604(d) and 605(c).

¶ 17      Vacated and remanded with directions.




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