                                      2019 IL App (3d) 150212-B

                                 Opinion filed May 22, 2019
     _____________________________________________________________________________

                                                IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                  2019

     THE PEOPLE OF THE STATE OF                     )      Appeal from the Circuit Court
     ILLINOIS,                                      )      of the 13th Judicial Circuit,
                                                    )      La Salle County, Illinois,
            Plaintiff-Appellee,                     )
                                                    )      Appeal No. 3-15-0212
            v.                                      )      Circuit No. 14-CF-264
                                                    )
     WILLIAM J. MILIAN,                             )      Honorable
                                                    )      H. Chris Ryan,
            Defendant-Appellant.                    )      Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE LYTTON delivered the judgment of the court, with opinion.
           Justice O’Brien concurred in the judgment and opinion.
           Presiding Justice Schmidt specially concurred, with opinion.
     _____________________________________________________________________________

                                               OPINION

¶1          Defendant, William J. Milian, appeals from the denial of his motion to reconsider

     sentence, arguing that a new Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) certificate

     needs to be filed and new postplea proceedings held as the filed certificate was not compliant

     with the amended rule. We vacate the circuit court’s decision on the motion to reconsider and

     remand for new postplea proceedings.

¶2                                              FACTS
¶3          Defendant entered a blind guilty plea to attempted first degree murder (720 ILCS 5/8-

     4(a), 9-1(a) (West 2014)) and was sentenced to 22 years’ imprisonment. Defense counsel filed a

     motion to reconsider sentence on February 13, 2015, which was denied on March 27, 2015.

     Defense counsel filed a Rule 604(d) certificate, which stated:

                              “I have consulted with the Defendant, in person to ascertain his/her

                    contentions of error in the entry of his/her plea of guilty in the above-entitled

                    cause.

                              I have consulted with the Defendant, in person to ascertain his/her

                    contentions of error in the sentence in the above-entitled cause.

                              I have examined the trial court file and report of proceedings of the plea of

                    guilty.

                              I have made any amendments to the motion necessary for adequate

                    presentation of any defects in those proceedings.” (Emphases in original.)

¶4          On appeal, this court held that the March 2016 amendment to Rule 604(d) applied

     retroactively to defense counsel’s certificate. We found that, since counsel’s certificate did not

     state that he examined the report of proceedings for the sentencing hearing, as the amended rule

     required, his certificate was deficient. We thus remanded for new postplea proceedings. The

     State filed a petition for leave to appeal. The Illinois Supreme Court denied the petition and, in

     its supervisory authority, vacated this court’s judgment. People v. Milian, No. 122621 (Ill. Jan.

     31, 2019) (supervisory order). It ordered this court to reconsider in light of its decision in People

     v. Easton, 2018 IL 122187.

¶5                                                ANALYSIS




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¶6          On appeal, defendant argues that defense counsel failed to comply with the certification

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

     Specifically, defendant contends that counsel’s certificate is deficient because it fails to verify

     that counsel examined the report of proceedings for the sentencing hearing. Though the

     amendments in Rule 604(d) do not apply retroactively, we find that the certificate is deficient

     because it fails to show that counsel reviewed the transcripts of the sentencing hearing before

     filing the motion to reconsider sentence.

¶7          Rule 604(d) governs the procedures to be followed when a defendant wishes to appeal

     after pleading guilty. One requirement of Rule 604(d) is that counsel file a certificate averring

     that he or she has consulted with defendant about any contentions of error and has reviewed the

     transcripts. Rule 604(d) demands strict compliance with each element of the certification

     requirement. People v. Gonzalez, 2017 IL App (3d) 160183, ¶ 13; People v. Janes, 158 Ill. 2d 27,

     33 (1994). Rule 604(d) currently states, inter alia,

                    “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.” Ill. S. Ct. R. 604(d) (eff. July 1,

                    2017).




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     However, Rule 604(d) went through multiple iterations to get to the current version. See Ill. S.

     Ct. R. 604(d) (eff. Dec. 3, 2015); R. 604(d) (eff. Mar. 8, 2016); R. 604(d) (eff. July 1, 2017). At

     the time counsel’s certificate was filed in February 2015, Rule 604(d) stated, 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.” Ill. S. Ct. R. 604(d) (eff. Dec. 11, 2014).

     In sum, the current version of the rule includes two main changes from the rule in effect in

     February 2015. First, the current version requires counsel to aver he or she consulted with the

     defendant regarding any contentions of error in the sentence and the plea of guilty, while prior

     versions required counsel to aver that he or she had consulted with the defendant regarding any

     contentions of error in the sentence or the plea of guilty. Second, the current version requires

     averring that counsel has examined the transcripts of both the plea of guilty and the sentencing

     hearing, while the rule in effect at the time the certificate was filed only required counsel to aver

     he or she had examined the transcripts of the plea of guilty.

¶8          Defendant argues that we should retroactively apply the amended portion of Rule 604(d).

     Our supreme court considered a similar issue in Easton, 2018 IL 122187. Defense counsel filed a

     Rule 604(d) certificate on October 29, 2014, with a motion to reconsider. Id. ¶ 4. The certificate

     stated, “ ‘I have consulted with the Defendant in person to ascertain his contentions of error in

     the imposition of the sentence or the entry of plea of guilty[.]’ ” Id. ¶ 5. While the defendant’s

     appeal was pending, Rule 604(d) was amended to require that counsel certify that he or she had


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     consulted with the defendant about contentions of error both in the sentence and the entry of the

     plea of guilty. Id. ¶ 6. On appeal, the

                    “defendant argued that the amended version of Rule 604(d) applied retroactively

                    to his case and that his counsel’s certificate failed to satisfy the requirements of

                    the amended rule because counsel did not certify that she had consulted with him

                    as to his contentions of error with regard to both his guilty plea and his sentence.”

                    Id. ¶ 7.

     The appellate court held that the amended rule applied retroactively and, therefore, defense

     counsel’s certificate was deficient because “it did not certify that she had consulted with

     defendant as to his contentions of error with regard to both his guilty plea and his sentence, and it

     did not certify that she had reviewed the report of proceedings of the sentencing hearing.” Id. ¶ 8.

     The State appealed. Id. ¶ 9.

¶9          On appeal, the supreme court stated that,

                    “section 4 of the Statute on Statutes requires that ‘ “the proceedings thereafter”—

                    after the enactment of the new procedural statute—“shall conform, so far as

                    practicable, to the laws in force at the time of such proceeding.” ’ (Emphasis in

                    original.) [People v.] Hunter, 2017 IL 121306, ¶ 31 (quoting 5 ILCS 70/4 (West

                    2016)). Thus, ‘[s]ection 4 contemplates the existence of proceedings after the new

                    or amended [rule] is effective to which the new procedure could apply.’ Id. This

                    understanding of section 4 has been acknowledged by our use of the phrase

                    ‘ongoing proceedings’ when referring to the retroactive application of a

                    procedural amendment under that provision. Id.” Id. ¶ 21.




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       The court further noted that just because a new rule is procedural in nature did not mean that it

       applied to every pending case. Id. ¶ 22. The court held that Rule 604(d) did not apply

       retroactively to the defendant’s case, stating,

                               “In this case, defendant’s postplea proceedings in the circuit court were

                        completed more than a year before Rule 604(d) was amended in December 2015.

                        As a consequence, there were no ‘ongoing proceedings’ to which the amended

                        rule would apply. The result of the appellate court’s decision was to necessitate

                        new proceedings in order to apply an amendment to a procedural rule that

                        postdated the postplea proceedings. That conclusion is not warranted under our

                        retroactivity jurisprudence, and as expressed in Hunter, we ‘have grave concerns

                        about such a result.’ ” Id. ¶ 23 (quoting Hunter, 2017 IL 121306, ¶ 33).

¶ 10          As in Easton, defendant’s postplea proceedings had been completed for a significant

       period of time before Rule 604(d) was first amended. “[T]here were no ‘ongoing proceedings’ to

       which the amended rule would apply.” Id. Therefore, we will not apply Rule 604(d)

       retroactively.

¶ 11          However, our inquiry does not stop there. After finding that Rule 604(d) did not apply

       retroactively, the supreme court in Easton turned to “whether defense counsel’s certificate

       satisfied the requirements of the rule that was in effect when the certificate and notice of appeal

       were filed.” Id. ¶ 25. Defense counsel’s certificate stated, “ ‘I have consulted with the Defendant

       in person to ascertain his contentions of error in the imposition of the sentence or the entry of

       plea of guilty[.]’ ” Id. ¶ 5. The certificate specifically mimicked the language of Rule 604(d) in

       effect at that time. The supreme court noted that in People v. Tousignant, 2014 IL 115329, ¶ 7, it




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              “addressed the scope of defense counsel’s obligations under that version of Rule

              604(d) to determine whether the rule ‘requires counsel to certify that he consulted

              with the defendant regarding defendant’s contentions of error in the sentence and

              the guilty plea, or only regarding contentions of error relevant to the defendant’s

              post-plea motion.’ (Emphasis in original.)” Easton, 2018 IL 122187, ¶ 28

              (quoting Tousignant, 2014 IL 115329, ¶ 7).

The court went on to say,

                      “We noted that Rule 604(d) is designed to ensure that any potential errors

              in the entry of a guilty plea are brought to the trial court’s attention prior to the

              filing of an appeal. [Citation.] We also observed that the certificate requirement

              included in the rule ‘enable[s] 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.’ *** [Citation.] We

              determined that, with regard to defense counsel’s consultation obligation, a literal

              reading of the word ‘or’ is at variance with the rule’s purpose and frustrates the

              goal of allowing trial courts to address potential improprieties in the guilty plea

              before an appeal is taken. [Citation.] However, construing the rule to require that

              counsel certify he or she consulted with the defendant about both sentencing and

              plea errors makes it more likely that all potential errors are addressed in the

              postplea proceeding.” (Emphasis in original.) Id. ¶ 29 (quoting Tousignant, 2014

              IL 115329, ¶ 16).




                                              -7-
       The court stated that solely “tracking the ‘text’ of the rule is inadequate.” Id. ¶ 35. The court held

       that counsel’s certificate did not comply with Rule 604(d) and, thus, remanded for new postplea

       proceedings. Id. ¶ 37.

¶ 12           Though Easton considered a different portion of Rule 604(d), we find its reasoning

       equally applicable, here. As stated above (supra ¶ 7), at the time defense counsel filed the

       certificate, Rule 604(d) stated, inter alia,

                        “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.” Ill. S. Ct. R. 604(d) (eff. Dec. 11, 2014).

       While the plain language of this version of Rule 604(d) does not specifically state that defense

       counsel must examine the report of proceedings for the sentencing hearing, the purpose of the

       rule is to ensure that all errors are brought to the court’s attention and that counsel has

       “ ‘considered all relevant bases for the motion to withdraw the guilty plea or to reconsider the

       sentence.’ ” (Emphasis in original.) Easton, 2018 IL 122187, ¶ 29 (quoting Tousignant, 2014 IL

       115329, ¶ 16).

¶ 13           Here, counsel filed a motion to reconsider sentence. In order to adequately consider all

       potential errors in the sentence, defense counsel needed to examine the report of proceedings for

       the sentencing hearing. The certificate did not indicate to the court that counsel had done so.

       Therefore, we find that the certificate “does not serve as a guarantee of compliance with Rule

       604(d)’s imperatives.” Id. ¶ 34. Therefore, we remand the cause “for new postplea proceedings,


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       including (1) the filing of a new Rule 604(d) certificate; (2) the opportunity to file a new motion

       to withdraw the guilty plea and/or reconsider the sentence, if counsel concludes that a new

       motion is necessary; and (3) a new motion hearing.” Id. ¶ 37.

¶ 14                                             CONCLUSION

¶ 15          The judgment of the circuit court of La Salle County is vacated and remanded with

       instructions.

¶ 16          Vacated and remanded with instructions.

¶ 17          PRESIDING JUSTICE SCHMIDT, specially concurring:

¶ 18          I concur but write separately to point out the obvious. The supreme court demands strict

       compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). Easton and Tousignant

       hold that the supreme court expects attorneys to strictly comply with what it intended its rule to

       say, rather than what the rule says. Perhaps there is a better avenue.




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