People v. Martell

• Decision Date: 23 September 2015
• Docket Number: No. 2–14–1202.,2–14–1202.
• Citation: 46 N.E.3d 253
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Gordon R. MARTELL, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

46 N.E.3d 253

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Gordon R. MARTELL, Defendant–Appellant.

No. 2–14–1202.

Appellate Court of Illinois, Second District.

Opinion Filed Sept. 23, 2015.

Modified Upon Denial of Rehearing Oct. 23, 2015.

Thomas A. Lilien and Sherry R. Silvern, both of State Appellate Defender's Office, of Elgin, for appellant.

Michael G. Nerheim, State's Attorney, of Waukegan (Lawrence M. Bauer and Mary Beth Burns, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice BIRKETT

delivered the judgment of the court, with opinion.

¶ 1 On September 29, 2014, defendant, Gordon R. Martell, entered a negotiated plea of guilty to unlawful restraint (720 ILCS 5/10–3(a)

(West 2014)) and was sentenced to the agreed term of 12 months in prison. On October 8, 2014, he moved to withdraw his plea, alleging that he had not been given the time to make a fully informed decision. On October 29, 2014, defendant's attorney filed a certificate of compliance with Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013). The certificate stated that the attorney had:

“1. Consulted with the Defendant in person on October 6, 2014 and on the phone on 10/14/2014 to ascertain her [sic ] contentions of error in 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.”

¶ 2 On October 29, 2014, the trial court denied defendant's motion. He timely appealed. On appeal, defendant argues that the order denying his motion must be vacated, and the cause remanded, because the attorney's Rule 604(d)

certificate was deficient. For the following reasons, we agree.

¶ 3 Rule 604(d)

reads, in pertinent part:

“No appeal shall be taken upon a negotiated plea of guilty challenging the sentence as excessive unless the defendant, within 30 days of the imposition of sentence, files a motion to withdraw the plea of guilty and vacate the judgment. * * * 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 [the] 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.

¶ 4 Rule 604(d)

requires strict compliance; the remedy for noncompliance is to vacate the denial of the postjudgment motion and remand the cause. See People v. Janes, 158 Ill.2d 27, 35–36, 196 Ill.Dec. 625, 630 N.E.2d 790 (1994) ; People v. Herrera, 2012 IL App (2d) 110009, ¶¶ 13–14, 361 Ill.Dec. 273, 970 N.E.2d 1219. Our review is de novo.

People v. Neal, 403 Ill.App.3d 757, 760, 344 Ill.Dec. 197, 936 N.E.2d 726 (2010).

¶ 5 Defendant's argument is straightforward. Illinois Supreme Court Rule 604(d)

(eff. Feb. 6, 2013) requires the defendant's trial attorney to certify, among other things, that “the attorney has consulted with the defendant either by mail or in person to ascertain [the] defendant's contentions of error in the sentence or the entry of the plea of guilty. ” (Emphasis added.) In People v. Tousignant, 2014 IL 115329, 378 Ill.Dec. 796, 5 N.E.3d 176, which involved an open plea, the supreme court held that the quoted language requires the attorney to certify that he or she has consulted with the defendant “ ‘to ascertain [the] defendant's contentions of error in the sentence and the entry of the plea of guilty.’ ” (Emphasis in original.) Id. ¶ 20. Defendant observes that his trial counsel's certificate stated that he had consulted with defendant to ascertain only his “contentions of error in the plea of guilty.” He concludes that, because the attorney did not certify that he had consulted with defendant about the sentence, the certificate did not comply strictly with the rule.

¶ 6 The State responds that applying Tousignant 's rule would make no sense here, because defendant agreed to a specific sentence, which the trial court then imposed. As the plea was fully negotiated, the court did not exercise any discretion in sentencing (beyond accepting the parties' bargain). The State argues that construing “or” to mean “and,” as Tousignant required with an open plea, serves no purpose if the trial court did nothing in sentencing but accept the parties' agreement: requiring the attorney to consult with the defendant about contentions of error in an agreed sentence would mandate “consultations * * * that could only be meaningless.”

¶ 7 We start with Tousignant. There, the defendant entered an open guilty plea to a drug offense. After the trial court accepted the plea and sentenced him, he filed a motion to reconsider the sentence. His attorney's Rule 604(d)

certificate stated that he had consulted with the defendant in order to ascertain his contentions of error “ ‘in the sentence imposed,’ ” but not as to the entry of the plea. Id. ¶ 4. The trial court denied the motion. Id. The appellate court agreed with the defendant that the certificate was defective for failing to state that the attorney had consulted with the defendant about the entry of the plea. Id. ¶ 5.

¶ 8 The supreme court affirmed the appellate court. It noted that, although the rule requires a statement that “the attorney has consulted with the defendant * * * to ascertain [the] defendant's contentions of error in the sentence or the entry of the plea of guilty” (emphasis added) (Ill.S.Ct. R. 604(d)

(eff. Feb. 6, 2013)), even the State conceded that “counsel may not choose [only] one of these arbitrarily as the subject of the consultation.” Tousignant, 2014 IL 115329, ¶ 10, 378 Ill.Dec. 796, 5 N.E.3d 176. Nor should the attorney be required to consult the defendant on only the portion of the judgment that is later challenged in the postjudgment motion: so limiting the attorney's obligation is neither compelled by the rule's language nor consistent with its intent, which is “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.” (Emphasis in original.) Id. ¶ 16. Allowing the attorney to consult with the defendant about only the sentence would frustrate the rule's purpose of enabling the trial court to address any alleged error that might have produced the guilty plea. Id. ¶ 18. Requiring consultation about both the plea and the sentence would make it “more likely, rather than less likely, that all of the contentions of error were included in the post-plea motion, enabling the trial court to address and correct any improper conduct or errors of the trial court that may have produced the guilty plea.” Id. ¶ 19.

¶ 9 Tousignant involved an open plea, in which the trial court held a full sentencing hearing and was unconstrained by any agreement on the sentence. The parties here disagree on whether, or to what extent, Tousignant applies to a negotiated plea and, specifically, to a fully negotiated plea such as the one here. From the internal evidence, defendant has the better argument: nothing in Tousignant 's reasoning relies on the fact that the plea there was open, and nothing in the opinion states that its holding is limited to open pleas. Further, Tousignant emphasizes that the sufficiency of the consultation does not depend on the scope of the motion that counsel files afterward. Tousignant does not suggest that, if the plea is negotiated, counsel may consult the defendant only about the plea.

¶ 10 We note that Rule 604(d)

states, “No appeal shall be taken upon a negotiated plea of guilty challenging the sentence as excessive unless the defendant, within 30 days of the imposition of sentence, files a motion to withdraw the plea of guilty and vacate the judgment.” Ill. S.Ct. R. 604(d) (eff. Feb. 6, 2013). Nonetheless, even when the plea is negotiated, a defendant may move only to reconsider his sentence and may appeal from that judgment—as long as the motion and the appeal are based on something other than a contention that the sentence is merely excessive. See People v. Palmer–Smith, 2015 IL App (4th) 130451, ¶ 28, 390 Ill.Dec. 466, 29 N.E.3d 95 (defendant who pleaded guilty in exchange for sentencing cap was not barred from arguing in motion to reconsider sentence that trial court considered improper factors); People v. Hermann, 349 Ill.App.3d 107, 114, 284 Ill.Dec. 857, 810 N.E.2d 647 (2004) (defendant's motion was proper, as it alleged not that sentence was excessive but that trial court lacked authority to impose it); People v. Economy, 291 Ill.App.3d 212, 219, 225 Ill.Dec. 416, 683 N.E.2d 919 (1997) (defendant who enters negotiated guilty plea may proceed on motion to reconsider sentence arguing that trial court considered improper factors).

¶ 11 With a partially negotiated guilty plea and a sentence entered thereon, the defendant might well have concerns about both the entry of the plea and the sentence, and there is no basis in logic or policy to depart from the requirement of Rule 604(d)

, as construed by Tousignant, that the defendant's attorney “ ‘ascertain [the] defendant's contentions of error in the sentence and the entry of the plea of guilty.’ ” (Emphasis in original.) Tousignant, 2014 IL 115329, ¶ 20, 378 Ill.Dec. 796, 5 N.E.3d 176. Because the defendant who enters a partially negotiated plea may still move to reconsider both the entry of the plea and the sentence, there is no reason to allow the attorney to be concerned with only one or the other. Tousignant does not support limiting the consultation requirement merely because the defendant entered a partially negotiated plea.

¶ 12 The context is different when the defendant has entered a fully negotiated guilty plea, but it does not follow that the rule must receive a different...