Opinion
4-20-0334
12-22-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHAD CALLAHAN, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Livingston County No. 18CF46 Honorable Jennifer H. Bauknecht, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court. Justices DeArmond and Steigmann concurred in the judgment.
ORDER
HARRISJUSTICE
¶ 1 Held: Defense counsel failed to strictly comply with the requirements of Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) where he filed his certificate of compliance prior to filing an amended motion to withdraw guilty plea.
¶ 2 Defendant, Chad Callahan, appeals from the denial of his postplea motions to reconsider his sentence and withdraw his plea of guilty. On appeal, defendant argues counsel failed to strictly comply with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) by filing a certificate prior to filing an amended motion to withdraw guilty plea. We agree.
¶ 3 I. BACKGROUND
¶ 4 In February 2018, the State charged defendant with unlawful distribution of a look-alike substance (720 ILCS 570/404(b) (West 2016)) (count I), unlawful delivery of cocaine (id. § 401(d)(i)) (count II), unlawful delivery of clonazepam (id. § 401(g)) (count III), unlawful delivery of diazepam (id.) (count IV), and unlawful delivery of diazepam within 1, 000 feet of a church (id. § 407(b)(5)) (count V). On February 26, 2019, defendant pleaded guilty to counts I and II in exchange for the State's agreement to dismiss the remaining counts. On April 16, 2019, the trial court sentenced defendant to concurrent five-year terms of imprisonment.
¶ 5 On May 8, 2019, defendant, through counsel, filed a motion to reconsider sentence. Counsel attached a Rule 604(d) certificate to the motion stating, in relevant part, he had "made any amendments to the motion necessary for the adequate presentation of any defects in [the guilty plea and sentencing] proceedings."
¶ 6 About a week later, on May 16, 2019, defendant pro se filed a motion to withdraw guilty plea. Defendant alleged his plea of guilty was not knowing "due to [his] mental status." Defendant explained he was unable to consistently take his psychiatric medications and had "plenty of medical records *** to back this up." At a subsequent hearing, the trial court informed defendant he could not file a pro se motion because he was represented by counsel. The court told defendant he could speak to counsel about his contentions and counsel would be permitted to file an amended motion if necessary.
¶ 7 On February 27, 2020, defendant, through counsel, filed an amended motion to withdraw guilty plea. Defendant alleged his plea was not knowing and voluntary because he "was suffering from the effects of a prescription drug overdose in February of 2018" and "did not receive consistent mental health treatment for his various mental health and physical health problems while out on bail." In support, defendant attached an affidavit in which he averred he was given the incorrect medications while in pretrial custody and unable to obtain consistent medication while out on bail. Defense counsel did not attach a Rule 604(d) certificate to the amended motion.
¶ 8 On July 22, 2020, the trial court denied defendant's motions following a hearing. With respect to the amended motion to withdraw guilty plea, the court noted defendant had the burden of proof and it ultimately was "not satisfied that the Defendant has provided sufficient evidence that he I guess did not understand what he was doing."
¶ 9 This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant argues counsel failed to strictly comply with Rule 604(d) by filing a certificate of compliance prior to filing an amended motion to withdraw guilty plea. The State makes no attempt to argue counsel's certificate complied with the rule. Instead, citing to People v. Montag, 2014 IL App (4th) 120993, 5 N.E.3d 246, and People v. Walker, 2021 IL App (1st) 190139-U, the State contends we should affirm the trial court's judgment because "remanding this case would serve no substantive purpose and would merely be a pro forma activity." Whether counsel complied with Rule 604(d) is a question of law reviewed de novo. People v. Easton, 2018 IL 122187, ¶ 25, 123 N.E.3d 1074.
¶ 12 Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) governs appeals from convictions entered on pleas of guilty. It provides the defendant must file the appropriate postplea motion within 30 days of the imposition of sentence and, in conjunction with the motion, the defendant's attorney must:
"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." Id.¶ 13 "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." Easton, 2018 IL 122187, ¶ 29. "[T]he rule's certificate requirement is meant to enable 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." (Emphasis in original.) People v. Tousignant, 2014 IL 115329, ¶ 16, 5 N.E.3d 176. "It is firmly established that the certificate filed by counsel must strictly comply with the requirements of Rule 604(d). [Citation.] If the certificate fails to meet this standard, a reviewing court must remand the case to the trial court for proceedings that strictly comply with Rule 604(d)." Easton, 2018 IL 122187, ¶ 26.
¶ 14 Generally, to determine compliance with the rule, a court need only look to the face of the certificate itself. See, e.g., People v. Neal, 403 Ill.App.3d 757, 760, 936 N.E.2d 726, 728 (2010). However, a facially-compliant certificate may be found in violation of the rule where it is undermined by the record. Id. ("[W]e may consider the record where it undermines the certificate filed."); see also People v. Herrera, 2012 IL App (2d) 110009, ¶ 13, 970 N.E.2d 1219 ("Unless the record undermines the certificate, *** the only thing we consider in determining compliance with Rule 604(d) is the certificate itself."); People v. Love, 385 Ill.App.3d 736, 739, 896 N.E.2d 1062, 1066 (2008) ("Where *** the record impeaches the Rule 604(d) certificate, a remand for further proceedings is necessary."). Moreover, where it is not entirely clear whether counsel strictly complied with the rule, "this court cannot simply assume or infer compliance***." People v. Prather, 379 Ill.App.3d 763, 768, 887 N.E.2d 44, 47 (2008).
¶ 15 Here, we agree with defendant that counsel's certificate is not in strict compliance with Rule 604(d). Although it complies with the rule on its face, it is nonetheless deficient in that one of the representations contained therein is positively rebutted by the record. Specifically, in his certificate, which was filed on May 8, 2019, counsel asserts he "made any amendments to the motion necessary for the adequate presentation of any defects" in the guilty plea or sentencing proceedings. However, counsel subsequently filed an amended motion to withdraw guilty plea on February 27, 2020, clearly contradicting his earlier representation that all necessary amendments had been made the previous year. Importantly, counsel did not file a new certificate of compliance along with the amended motion. Accordingly, because the Rule 604(d) certificate is positively rebutted by the record, we find it is not in strict compliance with the rule.
¶ 16 The above deficiency notwithstanding, the State maintains we should affirm the trial court's judgment because remanding "would merely be a pro forma activity." As noted above, the State cites to Montag and Walker in support of its position.
¶ 17 In Montag, this court held that although the Rule 604(d) certificate was technically deficient, remand was unnecessary because it would serve no substantive purpose. Montag, 2014 IL App (4th) 120993, ¶ 25. There, in February 2012, the defendant pro se filed a motion to withdraw his plea and a motion to reconsider his sentence. Id. ¶ 14. In August 2012, the defendant, through counsel, filed an amended motion to withdraw his plea and motion to reconsider; counsel filed a Rule 604(d) certificate the following month. Id. ¶¶ 14-15. In October 2012, counsel filed an amended motion to reconsider but did not file an accompanying certificate. Id. ¶ 16. On appeal, the defendant argued the certificate failed to strictly comply with Rule 604(d) "because it was filed prior to the amended motion to reconsider." Id. ¶ 21. This court did not disagree with the defendant's contention, but we nonetheless denied his request to remand the cause. Id. ¶ 25. We noted the defendant made no suggestion on appeal that counsel "failed to comply with the rule's substantive requirements ***. Nor does he articulate how the certificate's technical inaccuracy undermines Rule 604(d) 's purpose and deprives him of a fair opportunity to present his claims of error ***." Id. Ultimately, we concluded "remand would only serve to allow counsel to file a new certificate" and "would merely be a pro forma activity and serve no substantive purpose." Id.
¶ 18 In Walker, an unpublished Rule 23 order, the defendant, through counsel, filed an amended motion to withdraw guilty plea in September 2018. Walker, 2021 IL App (1st) 190139-U, ¶ 7. Counsel filed a Rule 604(d) certificate the following month. Id. ¶ 8. When the matter was called for a hearing, counsel informed the court he had yet to obtain a transcript of the relevant proceedings, and the trial court responded that his certificate was incorrect as a result and continued the matter. Id. ¶ 9. At a later hearing, counsel informed the court he had obtained the transcript, but no new certificate was filed. Id. ¶ 9. On appeal, the defendant argued the certificate was deficient because it was filed before counsel had obtained the transcripts and no new certificate was filed after they were obtained. Id. ¶ 11. The Walker court agreed "the certificate contained a technical inaccuracy ***." Id. ¶ 14. Nonetheless, the court declined to remand the matter because the record made clear that the trial court had "recognized an inaccuracy in the certificate and resolved it." Id. ¶ 19. The Walker court further noted that, "as in Montag, defendant has not articulated how the Rule 604(d) certificate's technical inaccuracy undermined the purpose of the rule or deprived him of a fair opportunity to present his claims of error." Id. ¶ 17.
¶ 19 According to the State, the instant case is analogous to Montag and Walker in that, despite a minor technical deficiency, the record makes clear counsel complied with the substance of Rule 604(d) and therefore we need not remand because it "would merely be a pro forma activity." We disagree.
¶ 20 Here, unlike in Montag and Walker, defendant has articulated how the certificate's technical inaccuracy could possibly undermine the purpose of Rule 604(d). Specifically, defendant argues that by failing to file a new certificate with the amended motion to withdraw guilty plea, it is unclear whether counsel in fact made all necessary amendments to defendant's motion, such as attaching available evidentiary support to the motion. See, e.g., People v. Bridges, 2017 IL App (2d) 150718, ¶ 9, 87 N.E.3d 441 (finding counsel's certification that she made any necessary amendments to the motion refuted by the record where counsel added new allegations to motion but failed to attach any evidence in support of those allegations). In defendant's pro se motion, he asserted he had "plenty of medical records" to support the allegations in his motion. However, when counsel amended defendant's motion, he attached an affidavit signed by defendant but no other evidence in support. Importantly, in denying defendant's motion, the trial court stated that defendant had not "provided sufficient evidence that he *** did not understand what he was doing." Thus, unlike in Montag and Walker, the potential exists that the "certificate's technical inaccuracy undermined the purpose of the rule or deprived him of a fair opportunity to present his claims of error." Walker, 2021 IL App (1st) 190139-U, ¶ 17; see also Montag, 2014 IL App (4th) 120993, ¶ 25.
¶ 21 The State suggests we can dismiss out of hand defendant's allegation-that he "was suffering from the effects of a prescription drug overdose in February of 2018" which somehow negated the knowing and voluntary nature of his guilty plea one year later in February of 2019-as an "unbelievable argument." However, even if we were inclined to do as the State requests, we note defendant further alleged in his motion to withdraw guilty plea that he "did not receive consistent mental health treatment for his various mental health and physical health problems while out on bail." Thus, it is possible some evidence exists which could support his contention that his guilty plea was not knowing or voluntary due to a mental or physical health problem. The State does not address this allegation in its argument and we are unwilling to categorically reject it based on the state of the record.
¶ 22 Further, while it might be tempting, as suggested by the State, to simply infer or assume that, by filing an amended motion, counsel clearly considered the medical records but found them unhelpful, we are prohibited from doing so. See Prather, 379 Ill.App.3d at 768. (" [T]his court cannot simply assume or infer compliance ***."). Accordingly, because counsel's certificate of compliance was technically inaccurate, and because the record does not clearly establish that counsel later strictly complied with the substance of Rule 604(d) 's requirements, we must remand for further proceedings in strict compliance with that rule. See Easton, 2018 IL 122187, ¶ 26 ("It is firmly established that the certificate filed by counsel must strictly comply with the requirements of Rule 604(d). [Citation.] If the certificate fails to meet this standard, a reviewing court must remand the case to the trial court for proceedings that strictly comply with Rule 604(d).").
¶ 23 III. CONCLUSION
¶ 24 For the reasons stated, we vacate the trial court's judgment and remand for further proceedings.
¶ 25 Judgement vacated and cause remanded.