People v. Dean

• Decision Date: 05 June 1978
• Docket Number: No. 77-16,77-16
• Citation: People v. Dean, 378 N.E.2d 248, 61 Ill.App.3d 612, 18 Ill.Dec. 784 (Ill. App. 1978)
• Parties: , 18 Ill.Dec. 784 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert DEAN, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 248

378 N.E.2d 248

61 Ill.App.3d 612, 18 Ill.Dec. 784

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Robert DEAN, Defendant-Appellant.

No. 77-16.

Appellate Court of Illinois, Fifth District.

June 5, 1978.

Michael J. Rosborough, DeputyState Appellate Defender, John H. Reid, Asst. State Appellate Defender, Mount Vernon, for defendant-appellant.

Lawrence Eaton, State's Atty., Newton, Bruce D. Irish, Deputy Director, John A. Clark, Staff Atty., State's Attys.Appellate Service Commission, Mount Vernon, of counsel, for plaintiff-appellee.

EBERSPACHER, Presiding Justice.

Defendant, Robert Dean(a/k/a Robert Dean Melson), was charged in the circuit court of Jasper County with the offenses of burglary, possession of burglary tools and misdemeanor-theft.Defendant, while represented by Public DefenderJohn Prusik, pleaded guilty as charged.The guilty pleas were accepted by the court and defendant was sentenced to a term of three to nine years imprisonment on the burglary conviction.However, no sentence was imposed on either of the two other convictions.Thereafter, on behalf of defendant, Prusik filed a motion, pursuant to Supreme Court Rule 604(d)(Ill.Rev.Stat.1975, ch. 110A, par. 604(d)), to withdraw the guilty pleas and vacate the judgment based upon the alleged severity of the sentence imposed.Prusik, however, failed to file an attorney's certificate of compliance with Rule 604(d) prior to the hearing on the motion.Following the hearing, at which defendant was not present, the motion was denied.From the denial, defendant brings this appeal.

In his brief on appeal defendant presents the sole issue of whether the cause should be remanded for a new proceeding under Rule 604(d) because of Prusik's failure to file the certificate of compliance and because of the lack of any other record indication of his attorney's compliance with that Rule.Additionally, defendant filed in this Court a motion for leave to supplement the record with two affidavits.

The first of these is by defendant wherein he states that:

"After I was sentenced, I was able to talk with Mr. Prusik for about two (2) minutes.I told him that I wanted to withdraw my guilty plea or, in the alternative, file an appeal.He said he would look into the matter and get back to me.He did not talk to me after that, but only sent me a copy of the motion he filed. * * * "

Further, defendant states that he had wished to raise three issues in his motion to withdraw his guilty pleas; that the sentence imposed was excessive; that the representation provided by Prusik during the plea proceedings was ineffective; and that he had been subject to coercion in pleading guilty.

In the second affidavit, by Assistant Appellate Defender John Reid, defendant's appointed appellate counsel, Reid states that Prusik had informed him that no issues with regard to the 604(d) motion had been discussed between Prusik and defendant during the conversation following the instant sentencing hearing.

In response to defendant's motion to supplement the record with the foregoing affidavits, the State has filed objections thereto and the motion has been taken with the case.

In turn, the State has also moved to supplement the record.This motion sought to file a belated certificate by Prusik.In the certificate, Prusik first relates a chronology of his activities in the lower court on behalf of defendant.He then states:

"9.After (the) sentencing (hearing), I did speak briefly with Mr. Dean, during which time he advised me of his displeasure with the sentence and his desire to appeal.However, at that time, and thereafter, I never specifically spoke to Mr. Dean concerning the issues that should be raised on the motion to vacate judgment and withdraw the plea of guilty, and thereafter on appeal.

10.It was my professional opinion that I had an active and thorough knowledge of the case, since I had been dealing with it for several months, and that I was therefore capable of raising all the legally cognizable issues possible * * *.

11.I drafted the motion * * * and raised all the legally cognizable issues I could think of.* * * 12.I sent Mr. Dean a copy of this motion * * *."

Although defendant received timely notice of the State's motion to supplement the record, no objection was raised thereto and the motion was consequently granted.The State then filed its brief on appeal contending that Prusik's certificate resolved the issue raised by defendant.

Thereafter, defendant filed a second motion to supplement the record presenting a second affidavit by him.In it, he states that while Prusik had sent him a copy of the 604(d) motion, such was sent after it had already been filed, and denied, in the trial court.The State again has filed an objection to defendant's second motion to supplement, and such has been taken with the case.

Supreme Court Rule 604(d) states 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 his contentions of error in 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."

Strict compliance with this Rule by the convicted defendant's attorney is made by the fulfillment of two requirements.First, that he has consulted with his client, investigated the prior proceedings, and prepared the motion in appropriate legal form presenting his client's complaint concerning the plea of guilty.Second, that he has filed with the trial court a certificate showing that he has performed these duties.Furthermore, under the Rule, the matter of attorney compliance, as a question of fact, is to be determined by the trial court and it is error for the court to deny a motion made pursuant to the Rule without having first ascertained that these requirements have been met. (People v. Samuels, 42 Ill.App.3d 642, 1 Ill.Dec. 375, 356 N.E.2d 563;People v. Moore, 45 Ill.App.3d 570, 4 Ill.Dec. 113, 359 N.E.2d 1065;People v. Sorensen, 49 Ill.App.3d 984, 7 Ill.Dec. 886, 365 N.E.2d 171.)In this respect, the certificate functions to provide a basis upon which the trial court can determine that the attorney has, in fact, performed his duties under the Rule, and also to give the record a clear indication of the extent of such performance which otherwise might not adequately appear thereon.Hence, where strict compliance is observed, any subsequent question on the matter will be effectively removed from the realm of conjecture and speculation.

The language in Rule 604(d) offers no alternative to the filing of the certificate and, equally important, it clearly contemplates the filing of the certificate as a condition precedent to the hearing on the motion.(People v. Samuels; People v. Sorensen.)Yet a plethora of cases have appeared in which reviewing courts have had to confront errors involving the failure to have filed the certificate before rulings have been made on the motion.(See, People v. Norris, 46 Ill.App.3d 536, 5 Ill.Dec. 105, 361 N.E.2d 105;People v. Chestnut, 47 Ill.App.3d 324, 5 Ill.Dec. 657, 361 N.E.2d 1185;People v. Purvis, 48 Ill.App.3d 813, 6 Ill.Dec. 773, 363 N.E.2d 455;People v. Thompson, 50 Ill.App.3d 51, 8 Ill.Dec. 17, 365 N.E.2d 255;People v. Rexroat, 52 Ill.App.3d 364, 10 Ill.Dec. 189, 367 N.E.2d 577.)In some instances the error has warranted a reversal and remandment for new proceedings in compliance with Rule 604(d).(e. g., People v. Samuels.)In other instances the error has been found harmless, such as where the record otherwise demonstrated that the attorney had performed every other duty required by the Rule (e. g., People v. Evans, 46 Ill.App.3d 689, 5 Ill.Dec. 77, 361 N.E.2d 77;People v. Lange(5th Dist.1978), 59 Ill.App.3d 603, 16 Ill.Dec. 812, 375 N.E.2d 919), or where the reviewing court has permitted the State to supplement the record during the pendency of an appeal with a belated certificate showing compliance (e. g., People v. Hummel, 48 Ill.App.3d 1002, 7 Ill.Dec. 837, 365 N.E.2d 122;People v. Hultz, 51 Ill.App.3d 663, 9 Ill.Dec. 386, 366 N.E.2d 897.)

In any event, there can be no justification for the failure of the trial court to demand, and for the defendant's attorney to present, the required certificate prior to conducting the hearing on the motion.It takes but a moment of the trial court's time to obtain the certificate from an attorney who is then presently before it.And by so doing, as a condition precedent to the hearing, it protects in full measure the interests of the defendant, it provides the record with a certificate made at a time at which the memory of the attorney is its keenest, it avoids the often awkward position in which the prosecution is placed in having to subsequently obtain the certificate during the pendency of an appeal, and it avoids the inherent delay and expense for the parties, and for the courts, resulting from an often unnecessary appeal on the issue.

In the case at bar, the lower court failed to ascertain whether Prusik performed his duties under Rule 604(d) and failed to demand and obtain the required certificate, before denying defendant's motion to withdraw the guilty pleas and vacate judgment.In this it did err.Therefore, we must next consider whether or not such error was harmless.

Initially we note that upon the record as originally presented, a reversal and remandment for new proceedings in compliance with Rule 604(d) would have been warranted.We are, however, led to consider the conflicting documents which were subsequently presented.

In viewing these, we find it undisputed that the only pertinent contact had between Prusik and defendant was the brief conversation which had occurred immediately following the sentencing hearing.That the...