                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Mineau, 2012 IL App (2d) 110666




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    MARTINEZ L. MINEAU, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-11-0666


Filed                      November 6, 2012


Held                       Although defendant had two public defenders at the hearing on his
(Note: This syllabus       motion to withdraw his guilty plea, the Supreme Court Rule 604(d)
constitutes no part of     certificate filed by the public defender who represented defendant at the
the opinion of the court   time his plea was entered satisfied the rule, and a certificate from the
but has been prepared      second public defender was not necessary, even though the filed
by the Reporter of         certificate stated that counsel consulted with defendant “by mail and/or
Decisions for the          in person” rather than stating exactly how counsel communicated with
convenience of the         defendant.
reader.)


Decision Under             Appeal from the Circuit Court of Winnebago County, No. 08-CF-4923;
Review                     the Hon. Rosemary Collins, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Dev A. Parikh, of Wilmington, Delaware, for appellant.
Appeal
                            Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M. Bauer
                            and Jay Paul Hoffmann, both of State’s Attorneys Appellate Prosecutor’s
                            Office, of counsel), for the People.


Panel                       JUSTICE HUDSON delivered the judgment of the court, with opinion.
                            Justice Birkett concurred in the judgment and opinion.
                            Presiding Justice Jorgensen specially concurred, with opinion.




                                              OPINION

¶1           Defendant, Martinez L. Mineau, was charged with burglary (720 ILCS 5/19-1(a) (West
        2008)) and unlawful possession of a stolen motor vehicle (625 ILCS 5/4-103(a) (West
        2008)). Pursuant to an agreement with the State, he pleaded guilty to the unlawful-possession
        charge and the State dismissed the burglary charge. Defendant later moved to withdraw the
        plea. Following a hearing, the trial court denied the motion. Defendant appeals, contending
        that the cause should be remanded for a new hearing where the attorney who represented him
        at the hearing did not file a certificate pursuant to Illinois Supreme Court Rule 604(d) (eff.
        July 1, 2006) and the certificate that cocounsel filed was insufficient. We affirm.
¶2           Defendant was indicted on January 8, 2009. Represented by assistant public defender
        Erin Hannigan, he pleaded not guilty. Questions soon arose about defendant’s fitness to stand
        trial but, following a hearing, the court found him fit.
¶3           On August 24, 2010, defendant pleaded guilty to unlawful possession of a stolen motor
        vehicle, in exchange for the dismissal of the burglary charge. There was no agreement about
        a sentence. Ultimately, the trial court sentenced defendant to 8 years’ imprisonment, with
        credit for 668 days he spent in presentencing custody.
¶4           Hannigan filed on defendant’s behalf a motion to withdraw the plea or, alternatively, to
        reconsider the sentence. At a January 13, 2011, court appearance, Hannigan told the court
        that defendant’s case was being reassigned to a new public defender, David Doll.
        Nonetheless, Hannigan filed an amended postplea motion and a Rule 604(d) certificate. The
        certificate stated:
                 “I hereby state that I have consulted with the Defendant, Martinez Mineau, by mail
             and/or in person, to ascertain defendant’s contentions of error in the sentence or the entry
             of the plea of guilty; have examined the trial court file and report of proceedings of the
             plea of guilty; and have made any amendments to the motion necessary for adequate
             presentation of any defects in those proceedings.”

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¶5         Both Hannigan and Doll appeared at the hearing on the motion, although Doll questioned
       defendant and argued on his behalf. Following the hearing, the trial court denied the motion.
       Defendant, through Hannigan, filed a timely notice of appeal.
¶6         Defendant contends that he is entitled to a new hearing on his postplea motion because
       Doll, who questioned him and delivered the closing argument at the hearing, did not file a
       Rule 604(d) certificate. Defendant alternatively contends that the certificate Hannigan filed
       is defective because it uses the disjunctive “or” in two places.
¶7         Rule 604(d) requires that, when a defendant moves to withdraw a guilty plea or to
       reconsider a sentence imposed following a guilty plea, “[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.” Ill. S. Ct. R. 604(d) (eff. July 1, 2006). It
       is well established that “[d]efense counsel must strictly comply with Rule 604(d)’s certificate
       requirement, and, when counsel fails to do so, the case must be remanded to the trial court
       for proceedings in compliance with the rule.” People v. Love, 385 Ill. App. 3d 736, 737
       (2008).
¶8         Nothing in the rule’s plain language requires that, when a defendant is simultaneously
       represented by multiple attorneys from the same office, each attorney must file a certificate.
       In arguing for such a rule, defendant relies on two cases, People v. Herrera, 2012 IL App
       (2d) 110009, and People v. Ritchie, 258 Ill. App. 3d 164 (1994), that are distinguishable.
¶9         In Herrera, the attorney who filed the certificate left the public defender’s office to
       become a judge and a different attorney from the office represented the defendant at the
       hearing. Herrera, 2012 IL App (2d) 110009, ¶ 5. Thus, we held, “Without a compliant
       certificate filed by the attorney who represents the defendant at his or her postplea hearing,
       the court has no assurance that the attorney presenting the motion has a grasp of the record
       and the defendant’s contentions of error.” (Emphasis in original.) Id. ¶ 11. Our concern was
       that the record did not disclose that the first attorney had conferred with the second about the
       contentions he had discussed with the defendant. Id. ¶ 12.
¶ 10       In Ritchie, the attorney who filed the certificate was still employed by the public
       defender’s office, but the record did not show that he continued to represent the defendant
       or appeared at the hearing. Our primary holding was that the certificate the first attorney filed
       did not comply with the rule. Ritchie, 258 Ill. App. 3d at 166. We further noted that the
       certificate was not filed by the attorney who actually represented the defendant at the hearing.
       Id. Moreover, there was no indication in the record that the second attorney actually
       consulted with the first attorney or with the defendant. Id. at 167.
¶ 11       The problem that concerned us in Herrera and Ritchie is not present here, where
       Hannigan continued to represent defendant and, indeed, attended the hearing. The record
       shows that, despite Hannigan’s earlier statement that the case was being “reassigned,” she
       filed an amended motion, appeared at the hearing on it, and filed the notice of appeal. When
       an attorney leaves an office, depending on the circumstances, he or she might or might not


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       discuss pending files with his or her replacement. Thus, the concern in Herrera was justified.
       Here, it is simply not reasonable to assume that Hannigan, while continuing to represent
       defendant, assigned Doll substantial responsibility for the file but did not discuss with him
       defendant’s contentions of error that were the basis of Doll’s questioning at the hearing.
       Moreover, Hannigan, who drafted and filed the motion, appeared at the hearing. We refuse
       to assume that Hannigan sat at the counsel table with Doll but did not discuss the case with
       him before letting him question defendant.
¶ 12        Defendant insists that such an inference is reasonable because, although the motion
       alternatively sought reconsideration of the sentence, Doll did not mention that aspect of it at
       all. Defendant cites no case for the proposition that an attorney arguing a motion must
       specifically mention each point argued in the written motion. Doll and Hannigan could
       reasonably have concluded that the argument for withdrawing the plea was stronger and that
       they should focus on it. Moreover, the argument for reconsidering the sentence was relatively
       straightforward and did not require defendant’s testimony.
¶ 13        While it might have been better practice for Doll to file his own certificate, we hold that,
       where Hannigan prepared and filed the motion and continued to represent defendant
       throughout the proceedings, a new certificate by Doll was not required. Because we conclude
       that Herrera and Ritchie are distinguishable, we decline the State’s invitation to reconsider
       those decisions.
¶ 14        Defendant alternatively contends that the certificate Hannigan filed is deficient. This is
       so, he claims, because the certificate uses the disjunctive “or” in two places. We disagree.
       The certificate states that counsel consulted with defendant “by mail and/or in person,” to
       ascertain his contentions of error. However, we know of no requirement that counsel must
       specify precisely how he or she communicated with the defendant. Defendant relies on
       People v. Prather, 379 Ill. App. 3d 763, 767-69 (2008). There, however, although the court
       found the certificate deficient, it did not accept the defendant’s argument that the certificate
       had to specify the method of consultation. It is sufficient that the certificate shows that at
       least one of the approved means of communication was used, even if it does not specify
       which one.
¶ 15        Nor do we find fault in the portion of the certificate stating that counsel consulted with
       defendant “to ascertain defendant’s contentions of error in the sentence or the entry of the
       plea of guilty” (emphasis added). This comports exactly with the rule’s text. In any event,
       we do not read this to mean that counsel limited her consultation to one type of error or the
       other. Rather, it is reasonably clear from the certificate that counsel consulted with defendant
       to ascertain what type (or types) of error he was asserting.
¶ 16        We note that the rule itself uses the disjunctive “or” in referring to the manner of
       consultation and the type of error. Courts have repeatedly held that a certificate need not
       recite verbatim the rule’s language. However, we are aware of no case finding a certificate
       insufficient for following the rule’s language too closely. Nothing in the rule indicates that
       counsel must select the appropriate option, and thus we will not fault counsel for using the
       language of the rule.
¶ 17        The judgment of the circuit court of Winnebago County is affirmed.


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¶ 18      Affirmed.

¶ 19       PRESIDING JUSTICE JORGENSEN, specially concurring.
¶ 20       I agree with the outcome and analysis in the majority decision. However, I write
       separately to emphasize that, as the majority notes, there is a better practice. While not a
       basis to reverse, the better practice would have been for attorney Doll to file his own Rule
       604(d) certificate. Further, while the content of the certificate filed by attorney Hannigan was
       within the letter of Rule 604(d), the better practice would be for counsel to specifically note
       how he or she communicated with the defendant (e.g., by mail, in person, or both) and the
       subject matter of the communication (e.g., plea withdrawal or sentencing matter).
¶ 21       The purpose of Rule 604(d) is to ensure that counsel in these matters has communicated
       with his or her client and fully discussed the subject matter of the motion and is therefore
       prepared to proceed with a hearing. If the rule required counsel simply to aver that he or she
       has communicated in any manner, the additional language of “by mail or in person” would
       appear to be superfluous. So, while failure to articulate with more specificity the method of
       communication and the subject matter is not fatal, the better practice in keeping with the
       spirit of the rule would be to specify how the communication was accomplished and identify
       the subject matter. Doing so would provide both the trial court and the appellate court with
       the clearest averments upon which to judge whether counsel fulfilled his or her obligations
       under Rule 604(d).




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