                                         2016 IL App (3d) 140262

                                 Opinion filed May 6, 2016
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                    2016

     THE PEOPLE OF THE STATE OF                        )      Appeal from the Circuit Court
     ILLINOIS,                                         )      of the 10th Judicial Circuit,
                                                       )      Tazewell County, Illinois,
            Plaintiff-Appellee,                        )
                                                       )      Appeal No. 3-14-0262
            v.                                         )      Circuit No. 13-CF-282
                                                       )
     DAVID JORDAN,                                     )      Honorable
                                                       )      Kevin R. Galley,
            Defendant-Appellant.                       )      Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE McDADE delivered the judgment of the court, with opinion.
           Presiding Justice O'Brien and Justice Schmidt concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1          Defendant, David Jordan, pled guilty to first degree murder. Defendant subsequently

     filed a motion to withdraw his guilty plea, which the trial court denied. Defendant appeals

     arguing that postplea counsel failed to strictly comply with Illinois Supreme Court Rule 604(d)

     (eff. Feb. 6, 2013) because he did not certify that he consulted with defendant to ascertain

     defendant's contentions of error in the entry of the guilty plea. We reverse and remand for new

     postplea proceedings.

¶2                                                 FACTS
¶3           The State charged defendant by indictment with three counts of first degree murder (720

     ILCS 5/9-1(a)(1), (a)(2) (West 2012)). Count I alleged that defendant, with the intent to kill or

     do great bodily harm, shot and killed Larry Vandyke with a firearm. The trial court appointed

     two attorneys to represent defendant.

¶4           Ultimately, defendant pled guilty to the first count (intentional murder). 1 The parties

     agreed to a negotiated plea of 50 years' imprisonment. The term included 25 years'

     imprisonment for murder, plus 25 years for the firearm enhancement. In addition, the State

     agreed not to file any drug charges against defendant.

¶5           Subsequently, defendant filed five pro se motions to withdraw his guilty plea. Defendant

     also filed several pro se notices of appeal. Defendant's attorneys subsequently filed a motion

     that requested the trial court to strike the notices of appeal without prejudice as being premature.

     The motion also asked for leave to file an amended motion to withdraw defendant's guilty plea.

     The trial court granted the requests.

¶6           Postplea counsel appeared on defendant's behalf and filed an amended motion to

     withdraw the guilty plea. Along with that motion, postplea counsel filed a Rule 604(d)

     certificate. The certificate states:

                               "Defense Counsel in the current case has consulted with the Defendant in

                       person to ascertain defendant's contentions of error in the sentence. Further,

                       Defense Counsel has examined the court file and reviewed the report of the

                       proceedings to determine if any additional amendments needed to be added for

                       the adequate presentation of any defects in the proceedings to perfect the

                       Defendant's right to appeal."

             1
                 Counts II and III were dismissed.


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¶7            The State filed a response to defendant's motion. After a hearing, the trial court denied

       defendant's motion to withdraw his guilty plea.

¶8                                                    ANALYSIS

¶9            On appeal, defendant argues that postplea counsel's Rule 604(d) certificate failed to

       strictly comply with Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013). Because postplea

       counsel failed to certify that he consulted with defendant to ascertain his contentions of error in

       the guilty plea, we find remand for new postplea proceedings is necessary.

¶ 10          Rule 604(d) requires a defendant seeking to appeal from a judgment entered upon a guilty

       plea to first file a motion to withdraw the guilty plea and vacate the judgment. Ill. S. Ct. R.

       604(d) (eff. Feb. 6, 2013). The version of Rule 604(d) in effect at the time defendant moved to

       withdraw his guilty plea required that upon the filing of such a motion,

                        "[t]he 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." Id. 2

¶ 11          In this case, postplea counsel only certified that he consulted with defendant to ascertain

       his contentions of error in the sentence. Postplea counsel did not certify that he consulted with

              2
                  During the pendency of this appeal, Rule 604(d) was amended to require postplea

       counsel to certify that counsel has consulted with 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).


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       defendant to ascertain his contentions of error in his guilty plea. Although the version of Rule

       604(d) in effect at the time used the term "or," our supreme court has held that "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.) People v.

       Tousignant, 2014 IL 115329, ¶ 20. Because postplea counsel's certificate only certified that he

       consulted with defendant regarding defendant's contentions of error in the sentence, we find he

       did not strictly comply with the rule. Id. ¶ 23. The remedy for failure to strictly comply with the

       rule is remand for the filing of a new postplea motion (if defendant so desires), a hearing on that

       motion, and strict compliance with the rule. Id. ¶¶ 5, 23.

¶ 12          In reaching this conclusion, we reject the State's argument that remand is unnecessary

       because the deficiency in postplea counsel's certificate was merely an oversight. Specifically,

       the State argues that remand would be a waste of judicial resources because the record from the

       hearing on the motion shows that postplea counsel consulted with defendant regarding his

       contentions of error in the guilty plea. In other words, the State emphasizes the fact that

       defendant does not argue that he had objections to his plea that postplea counsel did not raise or

       that he was prejudiced by counsel's deficient certificate. In support, the State relies on People v.

       Montag, 2014 IL App (4th) 120993, and People v. Scarbrough, 2015 IL App (3d) 130426.

¶ 13          In Montag the reviewing court found that postplea counsel's Rule 604(d) certificate was

       technically deficient, but did not remand for strict compliance with the rule because defendant

       did not argue that postplea counsel failed to comply with the substantive requirements of the rule

       or argue how the technically deficient certificate undermined the purpose of Rule 604(d).

       Montag, 2014 IL App (4th) 120993, ¶ 25. We note, however, that Montag was decided prior to

       our supreme court's decision in Tousignant. Therefore, we disregard Montag as precedential in


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       light of our supreme court's directive in Tousignant that postplea counsel must strictly comply

       with the provisions of Rule 604(d) and failure to do so requires remand for strict compliance

       with the rule. Tousignant, 2014 IL 115329, ¶¶ 5, 23.

¶ 14          In Scarbrough (decided after Tousignant) postplea counsel filed a Rule 604(d) certificate

       that tracked verbatim the language of the version of Rule 604(d) at the time. Scarbrough, 2015

       IL App (3d) 130426, ¶ 37. On review, this court found that postplea counsel's Rule 604(d)

       certificate was technically deficient, but went on to state:

                              "That said, we find in the instant case that the defendant does not contend

                      that he had objections to the entry of his guilty plea—independent of the

                      sentencing issues that have been raised—that his counsel failed to include in his

                      postplea proceedings. Rather he raises only a claim of a technical semantic defect

                      in the Rule 604(d) certificate.

                              We agree that the language used in the certificate was insufficiently

                      precise and technically noncompliant, but defendant has raised no claim of

                      omitted legal contentions or of prejudice. Accordingly we reject defendant's

                      prayer for a remand for a more compliant Rule 604(d) certificate." Id. ¶¶ 40-41.

¶ 15          To the extent that Scarbrough suggests that a defendant on appeal challenging postplea

       counsel's technically deficient Rule 604(d) certificate must also show prejudice to obtain remand,

       it is incorrect. See People v. Mason, 2015 IL App (4th) 130946, ¶¶ 13-14 (agreeing with

       Scarbrough to the extent that a Rule 604(d) certificate which tracks the language of the rule is

       technically deficient, but holding that Tousignant requires remand for strict compliance); See

       also O'Casek v. Children's Home & Aid Society of Illinois, 229 Ill. 2d 421, 440 (2008) ("the

       opinion of one district, division, or panel of the appellate court is not binding on other districts,


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       divisions, or panels"). Again, Tousignant requires postplea counsel to strictly comply with the

       provisions of Rule 604(d) and failure to do so requires remand for strict compliance with the

       rule. Tousignant, 2014 IL 115329, ¶¶ 5, 23.

¶ 16          Thus, the holding in Scarbrough, which I authored, should not have included any

       reference to prejudice. Here, postplea counsel's certificate fails to reference any effort he made

       to ascertain defendant's contentions of error in his guilty plea. We will not excuse this oversight.

       See People v. Willis, 2015 IL App (5th) 130020, ¶ 23 (refusing to look beyond the four corners

       of a Rule 604(d) certificate).

¶ 17                                            CONCLUSION

¶ 18          The judgment of the circuit court of Tazewell County is reversed and remanded for new

       postplea proceedings.

¶ 19          Reversed and remanded.




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