                                       2017 IL App (3d) 160183

                               Opinion filed February 22, 2017
     _____________________________________________________________________________

                                                IN THE

                                   APPELLATE COURT OF ILLINOIS

                                          THIRD DISTRICT

                                                 2017

     THE PEOPLE OF THE STATE OF                     )      Appeal from the Circuit Court
     ILLINOIS,                                      )      of the 12th Judicial Circuit,
                                                    )      Will County, Illinois.
            Plaintiff-Appellee,                     )
                                                    )      Appeal No. 3-16-0183
            v.                                      )      Circuit No. 13-CF-777
                                                    )
     JUAN M. GONZALEZ,                              )      Honorable
                                                    )      Sarah F. Jones,
            Defendant-Appellant.                    )      Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
           Presiding Justice Holdridge and Justice Lytton concurred in the judgment and opinion.
     _____________________________________________________________________________

                                              OPINION


¶1          Defendant, Juan M. Gonzalez, appeals from the denial of his motion to reconsider

     sentence, arguing that a new Illinois Supreme Court Rule 604(d) certificate needed to be filed

     and new postplea proceedings held, as the filed certificate was not compliant with the amended

     rule. We vacate the trial court’s decision on the motion to reconsider sentence and remand for

     new postplea proceedings.
¶2                                                FACTS

¶3          Defendant entered a blind guilty plea to two counts of predatory criminal sexual assault

     of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)). The factual basis established that, on March

     17, 2013, defendant was 42 years old and was consuming alcohol at a friend’s house. The victim,

     E.L., was the four-year-old daughter of the friend. Defendant decided to leave to buy more

     alcohol and E.L. went with him. Defendant stopped at his house to use the restroom. While at his

     house, defendant put his penis and mouth on E.L.’s vagina. The judge accepted the plea.

¶4          Defendant was sentenced to 20 years’ imprisonment on each count, to be served

     consecutively. Defendant filed a motion to reconsider sentence, which was denied. Defendant

     appealed. This court remanded the matter for strict compliance with Supreme Court Rule 604(d).

     People v. Gonzalez, No. 3-13-0919 (June 19, 2015) (dispositional order).

¶5          On remand, a new motion to reconsider and Rule 604(d) certificate were filed on

     September 23, 2015. The Rule 604(d) certificate stated counsel had:

                             “1. Consulted with the defendant in person to ascertain defendant’s

                   contentions of error in the sentence and the entry of the plea of guilty;

                             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.”

     A hearing on the motion was held on April 8, 2015, and the court denied the motion to

     reconsider.




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¶6                                                ANALYSIS

¶7           On appeal, defendant argues that counsel has failed to strictly comply with the

     certification requirements of Rule 604(d) and requests that we remand the case for new postplea

     proceedings. 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. On September 23, 2015—the

     date defense counsel filed the motion to reconsider sentence and certificate—Rule 604(d) read,

     in pertinent part:

                     “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.

                     Dec. 11, 2014).

¶8           Prior to the hearing on the motion to reconsider, Rule 604(d) was amended. Therefore, on

     the date of the hearing on the motion to reconsider, Rule 604(d) read:

                     “The defendant’s attorney shall 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




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                      presentation of any defects in those proceedings.” (Emphasis added.) Ill. S. Ct. R.

                      604(d) (eff. Mar. 8, 2016).

       In other words, at the time the motion to reconsider was heard, Rule 604(d) required the

       attorney’s certificate to aver that the attorney had examined the report of proceedings from both

       the plea of guilty and the sentencing hearing. At the time the motion was filed, Rule 604(d) only

       required the certificate to state that the attorney had examined the report of proceedings from the

       plea of guilty. The certificate the defense attorney filed only averred that she had reviewed the

       report of proceedings from the guilty plea, not from the sentencing hearing. Therefore, the

       defense attorney’s certificate complied with the version of Rule 604(d) in place at the time the

       motion was filed, but not at the time the motion was heard and ruled upon.

¶9            Defendant argues that “[b]y making the amended version of the rule ‘eff[ective]

       immediately’ on March 8, 2016, the Illinois Supreme Court indicated its intent that the amended

       version of the rule apply immediately to all cases pending disposition in the circuit court.” That

       is to say the amended version of Rule 604(d), defendant states, should be applied retroactively.

¶ 10          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 the 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).




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¶ 11          As stated above, the Rule 604(d) amendment at issue here added that the attorney had to

       aver that he or she had examined the report of proceedings from the sentencing hearing. The

       amendment was clearly procedural, as it dictated the practices to be followed by defense

       attorneys in filing their Rule 604(d) certificate. Moreover, far from impairing a vested right, the

       amendment actually served to expand the protections afforded to defendants challenging their

       sentences by requiring counsel to examine the report of proceedings from the sentencing hearing.

       Accordingly, we find that the amended Rule 604(d), effective March 8, 2016, may be applied

       retroactively.

¶ 12          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, applying the amendment retroactively would not

       have inequitable consequences, but would provide more protection to defendant without

       requiring too much work on the part of the attorney.

¶ 13          Because we find that the Rule 604(d) amendment applies retroactively, we next turn to

       the question of whether remand is necessary. Rule 604(d) demands strict compliance with each

       of the elements of the certification requirement. People v. Janes, 158 Ill. 2d 27, 33 (1994). The

       remedy for failing to strictly comply with the requirements is remand to the trial court for new

       postplea proceedings. Id. (“[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.”).

¶ 14          Our recent decision in People v. Evans, 2017 IL App (3d) 160019, is particularly

       applicable in this case. In Evans, defense counsel filed a motion to reconsider sentence, but did


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       not file a Rule 604(d) certificate because the version of Rule 604(d) in effect at the time only

       required such a certificate “ ‘[i]f a motion to withdraw the plea of guilty is to be filed.’ ” Id. ¶ 14

       (quoting Ill. S. Ct. R. 604(d) (eff. Dec. 3, 2015)). On appeal, we agreed with the defendant that

       the rule should be applied retroactively, thus requiring remand for defense counsel to file a Rule

       604(d) certificate. Id. ¶ 15. In doing so, we noted that Rule 604(d) is a procedural law, could be

       applied retroactively, and, in fact, should be applied retroactively as equity favored more

       protection for the defendant. Id. ¶¶ 16-18. Further, we stated that remand was required because

       counsel did not strictly comply with the rule, as he did not certify that he had examined the

       report of proceedings from the sentencing hearing. Id. ¶ 21.

¶ 15          Here, as in Evans, defense counsel asserted in her Rule 604(d) certificate that she had

       examined the report of proceedings of the guilty plea. Defense counsel did not certify that she

       had examined the report of proceedings of the sentencing hearing. Because Rule 604(d) requires

       counsel to certify that she has examined the transcript of the sentencing hearing, counsel in the

       present case failed to strictly comply with the rule. See People v. Steinmetz, 110 Ill. App. 3d 439,

       442 (1982). Therefore, remand is necessary for new postplea proceedings and strict compliance

       with the rule.

¶ 16          In coming to this conclusion, we reject the State’s argument that remand is not required.

       Specifically, the State argues, like it did in Evans, that under People v. Shirley, 181 Ill. 2d 359

       (1998), remand is unnecessary because defendant has already been afforded a full and fair

       opportunity to present his postplea motion. In Evans, we rejected the State’s reliance on Shirley

       for this proposition. Evans, 2017 IL App (3d) 160019, ¶¶ 22-28. In doing so, we noted that

       “[t]his 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).” Id. ¶ 24 (citing People


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       v. Hagerstrom, 2016 IL App (3d) 140559, ¶¶ 10-13). Instead, Shirley stands for the proposition

       that multiple remands for compliance with Rule 604(d) are not necessary where a defendant

       received a full and fair hearing. Id. We held that, unlike in Shirley, where the only issue was the

       timeliness of the filing of an otherwise compliant 604(d) certificate, the defendant in Evans had

       not received a full and fair hearing, and, therefore, remand for strict compliance with Rule 604(d)

       was required. Id. ¶¶ 27-28.

¶ 17          Here, counsel has not averred that she examined the transcript of the sentencing hearing,

       which provided the basis of defendant’s motion. See Steinmetz, 110 Ill. App. 3d at 442 (“[T]he

       concern [of Rule 604(d)] has to be that an attorney make a subsequent thorough and

       dispassionate review of the record to assure that the defendant’s rights were safeguarded. To

       assume from the mere fact of continuous representation a knowledge of the record trammels on

       that policy. It ignores not only the reality that a vast amount of time often separates hearings but

       also that defense attorneys often represent numerous defendants with cases far too complex to

       commit to memory.”). Because defendant has not received 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).

¶ 18          Lastly, defendant argues that his sentence was excessive. As we remand for new postplea

       proceedings, we do not reach this issue.

¶ 19                                              CONCLUSION

¶ 20          The judgment of the circuit court of Will County is vacated and remanded with

       instructions.

¶ 21          Vacated and remanded with instructions.




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