                                                                        Digitally signed by
                                                                        Reporter of Decisions
                                                                        Reason: I attest to
                       Illinois Official Reports                        the accuracy and
                                                                        integrity of this
                                                                        document
                              Appellate Court                           Date: 2018.01.25
                                                                        09:52:40 -06'00'




                  People v. Gillespie, 2017 IL App (1st) 152351



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



District & No.    First District, Second Division
                  Docket No. 1-15-2351



Filed             September 29, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 15-DV-72265;
Review            the Hon. Michael R. Clancy, Judge, presiding.



Judgment          Reversed and remanded.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Elizabeth Cook, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
                  and Margaret M. Smith, Assistant State’s Attorneys, of counsel), for
                  the People.



Panel             JUSTICE HYMAN delivered the judgment of the court, with opinion.
                  Justices Pucinski and Mason concurred in the judgment and opinion.
                                               OPINION

¶1      After pleading guilty to violating an order of protection, Jeremy Gillespie then moved to
     withdraw his guilty plea. His counsel certified under Illinois Supreme Court Rule 604(d) (eff.
     Dec. 11, 2014) that counsel had consulted with Gillespie on the guilty plea; however, nothing
     was stated regarding whether counsel consulted with Gillespie on the sentence. Gillespie
     argues that this certification was insufficient. We agree. We vacate the Cook County circuit
     court’s order denying Gillespie’s motion and remand.

¶2                                            Background
¶3       In April 2015, Gillespie was charged with violating an order of protection. In a negotiated
     plea deal, Gillespie pled guilty in exchange for a sentence of 12 months of probation, GPS
     monitoring, and community service.
¶4       But soon after, Gillespie filed a pro se document that the trial court interpreted as a motion
     to withdraw his guilty plea. Gillespie’s counsel then filed an amended motion. Attached to the
     motion was a certification under Illinois Supreme Court Rule 604(d), stating: “I have consulted
     with the defendant in person to ascertain his contentions of error in the entry of the plea of
     guilty in the above matter. I have examined the trial court file and the official transcript of the
     proceedings of May 13, 2015. I have prepared a Motion to Withdraw Defendant’s Plea of
     Guilty and Vacate the Judgment.” After a hearing, the trial court denied the motion, and
     Gillespie filed this appeal.

¶5                                              Analysis
¶6       Gillespie argues that his trial counsel’s Rule 604(d) certification did not strictly comply
     with the rule because it failed to state that counsel had consulted with Gillespie about his
     contentions of error in both the guilty plea and his sentence.
¶7       Illinois Supreme Court Rule 604(d) governs a defendant’s ability to appeal after pleading
     guilty; a defendant may not do so unless he or she first challenges the plea (or the sentence or
     both the plea and the sentence) in a motion in the trial court. Ill. S. Ct. R. 604(d) (eff. Dec. 11,
     2014). The defendant’s attorney must certify to the trial court that certain tasks were
     completed. Until recently, Rule 604(d) stated that the attorney must consult with the defendant
     “to ascertain defendant’s contentions of error in the sentence or the entry of the plea of guilty.”
     (Emphasis added.) Id.
¶8       Our supreme court was asked to interpret this clause in People v. Tousignant, 2014 IL
     115329. The State argued that because the word “or” was disjunctive, an attorney did not need
     to certify consultation about both the sentence and the plea. Id. ¶ 11. But the supreme court
     disagreed, based on the purpose of the rule: “to enable 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. ¶ 16. This would
     enable the trial court to correct possible errors at the soonest opportunity. Id. ¶ 19. The court
     determined that the word “or” should be read as “and,” requiring attorneys to certify
     consultation about both the guilty plea and the sentence. Id. ¶ 20.
¶9       Following Tousignant and Gillespie’s case, the supreme court amended the rule to read
     that defense counsel must consult with the defendant to ascertain the “contentions of error in

                                                  -2-
       the sentence and the entry of the plea of guilty.” (Emphasis added.) Ill. S. Ct. R. 604(d) (eff.
       Dec. 3, 2015).
¶ 10        Gillespie relies on Tousignant to argue that his counsel did not strictly comply with the
       rule. The State argues that Tousignant is distinguishable because Tousignant had an “open”
       plea (he pled guilty without any promise from the State), while Gillespie had a “closed,” or
       fully negotiated, plea deal. According to the State, because Gillespie negotiated for a specific
       sentence, he could not challenge that sentence afterwards and therefore his attorney did not
       need to certify consultation regarding the sentence. Gillespie argues that Tousignant’s holding
       was not limited to open pleas.
¶ 11        In People v. Martell, the Second District agreed with Gillespie’s position, rejecting the
       argument that Tousignant applied only to open pleas: “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.” 2015 IL App (2d) 141202, ¶ 9. Indeed, the rule’s purpose was to
       ensure adequate consultation between attorney and client, and “the sufficiency of the
       consultation does not depend on the scope of the motion that counsel files afterwards.” Id.
       Martell also noted that even in the context of a fully negotiated plea, the trial court’s role had
       “dwindled but not wholly disappeared,” as the agreed-upon sentence might be improper in
       some way, requiring the trial court to step in. Id. ¶ 13.
¶ 12        We agree with Martell. Tousignant and the rule’s language are not limited to open pleas,
       and if our supreme court intends that it be so limited, it will say so explicitly. The State’s
       argument has some superficial logical appeal: if the plea is closed, counsel will not be able to
       challenge the sentence through a written motion. But the rule focuses on the attorney’s duty to
       consult with his or her client, and that consultation has value even if it does not ultimately
       affect the content of the motion. Further, Martell’s concern that a fully negotiated plea might
       include an improper sentence is real. See, e.g., People v. White, 2011 IL 109616, ¶ 23 (trial
       court may not impose illegal sentence even if intended by parties through plea agreement).
       Even when the parties agree on a specific sentence, the trial court still has a role to play beyond
       blindly imposing their wishes. The consultation and motion contemplated by Rule 604(d) will
       ultimately be directed at the trial court’s acceptance of the plea and imposition of sentence, not
       the parties’ agreement.
¶ 13        Though strict enforcement of the rule under Tousignant might seem “hypertechnical” (see
       Martell, 2015 IL App (2d) 141202, ¶ 19), we believe that the law properly requires it.
¶ 14        We vacate the trial court’s denial of Gillespie’s motion and remand for further
       proceedings.

¶ 15      Reversed and remanded.




                                                    -3-
