Opinion
NO. 4-15-0801
08-28-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRIS D. WARNSLEY, Defendant-Appellant.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from Circuit Court of Macon County
No. 12CF1651
Honorable Timothy J. Steadman, Judge Presiding.
PRESIDING JUSTICE TURNER delivered the judgment of the court.
Justices Steigmann and Knecht concurred in the judgment.
ORDER
¶ 1 Held: The appellate court reversed and remanded with directions, finding defense counsel failed to strictly comply with Illinois Supreme Court Rule 604(d) (eff. Dec. 11, 2014).
¶ 2 In April 2014, defendant, Terris D. Warnsley, pleaded guilty to one count of first degree murder. In October 2014, the trial court sentenced him to 50 years in prison. In August 2015, defense counsel filed an amended motion to withdraw defendant's guilty plea. In October 2015, the court denied the motion.
¶ 3 On appeal, defendant argues (1) he is entitled to a remand for postplea proceedings under Illinois Supreme Court Rule 604(d) (eff. Dec. 11, 2014), (2) the Macon County circuit clerk improperly imposed various fines, and (3) he is entitled to an additional day of sentence credit. We reverse and remand with directions.
¶ 4 I. BACKGROUND
¶ 5 In December 2012, the State charged defendant by information with 18 counts of first degree murder (720 ILCS 5/9-1 (West 2012)), one count of armed robbery (720 ILCS 5/18-2(a)(1) (West 2012)), and one count of home invasion (720 ILCS 5/12-11 (West 2012)). In April 2014, defendant pleaded guilty to one count of first degree murder in exchange for the dismissal of the remaining counts.
¶ 6 In May 2014, defendant filed a pro se motion to withdraw his guilty plea. In August 2014, defense counsel asked the trial court to withdraw the pro se motion. On October 8, 2014, the court sentenced defendant to 50 years in prison. On the same day, defendant filed a pro se "motion to fire appointed counsel."
¶ 7 On October 21, 2014, defendant filed a pro se motion to withdraw his guilty plea. In November 2014, the trial court vacated defense counsel's appointment. In December 2014, the court appointed Steven G. Jones to represent defendant.
¶ 8 In August 2015, Jones filed an amended motion to withdraw defendant's guilty plea. Jones also filed a certificate pursuant to Illinois Supreme Court Rule 604(d) (eff. Dec. 11, 2014), certifying as follows:
"1. That I have consulted with the Defendant, TERRIS WARNSLEY, in person, to ascertain Defendant's contentions of error in the sentence or the entry of the plea of guilty.
2. That I have examined the trial court file.
3. That I have examined the report of proceedings of the plea of guilty.
4. That I have made any amendments to the motion necessary for adequate presentation of any defects in those
proceedings."
¶ 9 On October 2, 2015, Jones filed an amended Rule 604(d) certificate, certifying as follows:
"1. That I have consulted with the Defendant, TERRIS WARNSLEY, in person, to ascertain Defendant's contentions of error in the sentence and the entry of the plea of guilty.
2. That I have examined the trial court file.
3. That I have examined the report of proceedings of the plea of guilty.
4. That I have made any amendments to the motion necessary for adequate presentation of any defects in those proceedings."
¶ 10 Also on October 2, 2015, the trial court conducted a hearing on the motion to withdraw the guilty plea. At the start of the hearing, the court pointed out the amended Rule 604(d) certificate was deficient because it did not "say counsel has examined the trial court file and the Report of Proceedings of Plea of Guilty and Sentencing." The court indicated it would "fill in the blanks" in a new certificate. Jones signed the second amended Rule 604(d) certificate and certified as follows:
"1. Counsel has consulted with 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.
2. Counsel has examined the trial court file and report of proceedings of the plea of guilty and sentencing hearing.
3. Counsel has made any amendments, if any, to the motion necessary for adequate presentation of any defects in those proceedings."
Following testimony and arguments, the court denied the motion to withdraw the guilty plea. This appeal followed.
¶ 11 II. ANALYSIS
¶ 12 Defendant argues this court should remand for new postplea proceedings based on counsel's failure to strictly comply with the requirements of Rule 604(d). We agree.
¶ 13 "Rule 604(d) governs the procedure to be followed when a defendant wishes to appeal from a judgment entered upon a guilty plea." In re H.L., 2015 IL 118529, ¶ 7, 48 N.E.3d 1071. The purpose of the rule " 'is to ensure that before a criminal appeal can be taken from a guilty plea, the trial judge who accepted the plea and imposed sentence be given the opportunity to hear the allegations of improprieties that took place outside the official proceedings and dehors the record, but nevertheless were unwittingly given sanction in the courtroom.' " H.L., 2015 IL 118529, ¶ 9, 48 N.E.3d 1071 (quoting People v. Wilk, 124 Ill. 2d 93, 104, 529 N.E.2d 218, 221-22 (1988)). Moreover, the rule " 'enables the trial court to insure 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.' " H.L., 2015 IL 118529, ¶ 10, 48 N.E.3d 1071 (quoting People v. Shirley, 181 Ill. 2d 359, 361, 692 N.E.2d 1189, 1191 (1998)).
¶ 14 Our supreme court has held strict compliance with Rule 604(d) is required, and counsel's failure to strictly comply requires remand to the trial court. People v. Janes, 158 Ill. 2d 27, 33, 630 N.E.2d 790, 792 (1994). We review de novo whether defense counsel's certificate complied with Rule 604(d). People v. Grice, 371 Ill. App. 3d 813, 815, 867 N.E.2d 1143, 1145
(2007).
¶ 15 At the time defense counsel's three certificates were filed, Rule 604(d) provided, 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).
¶ 16 In People v. Tousignant, 2014 IL 115329, ¶ 19, 5 N.E.3d 176, our supreme court found interpreting "or" in the clause of the rule as "and" would further the rule's purpose. The court concluded as follows:
"We hold that in order to effectuate the intent of Rule 604(d), specifically the language requiring counsel to certify that he has consulted with the defendant 'to ascertain defendant's contentions of error in the sentence or the entry of the plea of guilty,' the word 'or' is considered to mean 'and.' Under this reading, counsel is required to certify that he has consulted with the defendant 'to ascertain defendant's contentions of error in the sentence and the entry of the plea of guilty.' " (Emphases in original.) Tousignant, 2014 IL 115329, ¶ 20, 5 N.E.3d 176.
¶ 17 In the case sub judice, defense counsel's second amended Rule 604(d) certificate stated, in relevant part, that he "consulted with 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." (Emphasis added.) In light of our supreme court's decision in Tousignant and the purpose of Rule 604(d), we find the second amended certificate is deficient. See People v. Hobbs, 2015 IL App (4th) 130990, ¶ 33, 42 N.E.3d 471.
¶ 18 The State argues defense counsel's three certificates, when read together, show he performed all of the duties required by Rule 604(d). However, the State cites no authority for its position. Moreover, all three of the certificates, when read separately, were deficient in one form or another. While the State asks this court to review the transcript to discover the reasoning for the second amended certificate, we have noted compliance will be found by looking solely at the plain language of the certificate. See Grice, 371 Ill. App. 3d at 816, 867 N.E.2d at 1146 (stating "the certificate itself is all that this court will consider to determine compliance with Rule 604(d)"). As the second amended certificate, which necessarily supersedes all prior certificates, is deficient, we remand the matter for compliance with the supreme court's interpretation of Rule 604(d) in Tousignant. See People v. Mason, 2015 IL App (4th) 130946, ¶ 14, 37 N.E.3d 927. As remand is necessary, we need not address defendant's claims pertaining to fines improperly imposed by the circuit clerk and his entitlement to an additional day of sentence credit.
¶ 19 III. CONCLUSION
¶ 20 For the reasons stated, we reverse the trial court's judgment regarding Rule 604(d) compliance and remand for (1) the opportunity to file a new motion to withdraw the guilty plea and/or reconsider the sentence, if counsel concludes a new motion is necessary; (2) a new hearing on defendant's postplea motion; and (3) the filing of a new certificate in compliance
with Rule 604(d).
¶ 21 Reversed; cause remanded with directions.