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                              Appellate Court                            Date: 2017.05.10
                                                                         11:54:08 -05'00'




                  People v. Gonzalez, 2017 IL App (3d) 160183



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JUAN M. GONZALEZ, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-16-0183



Filed             February 22, 2017



Decision Under    Appeal from the Circuit Court of Will County, No. 13-CF-777; the
Review            Hon. Sarah F. Jones, Judge, presiding.



Judgment          Vacated and remanded with instructions.



Counsel on        Michael J. Pelletier and Steven Varel, of State Appellate Defender’s
Appeal            Office, of Ottawa, for appellant.

                  James Glasgow, State’s Attorney, of Joliet (Justin A. Nicolosi, of
                  State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                  People.



Panel             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 Illinois 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.

¶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).

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¶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 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).
¶ 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.

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¶ 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
       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 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

                                                    -4-
       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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