People v. Shirley

People v. Shirley, No 82485 (2/20/98)

Docket No. 82485--Agenda 32--May 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
STEVEN M. SHIRLEY, Appellant.
Opinion filed February 20, 1998.

JUSTICE McMORROW delivered the opinion of the court:
This appeal involves the application of the
requirements of Supreme Court Rule 604(d) (145 Ill. 2d R.
604(d)) when a defendant who has pleaded guilty
subsequently appeals his conviction or sentence.
Defendant requests us to determine whether the appellate
court in the case at bar departed from this court's prior
ruling requiring strict compliance with that portion of
Rule 604(d) which pertains to furnishing the attorney
certificate. See People v. Janes, 158 Ill. 2d 27 (1994)
(Janes I); People v. Janes, 168 Ill. 2d 382 (1995) (Janes
II). The appellate court held that counsel's filing of
the attorney certificate four days after the hearing on
defendant's motion to reduce sentences, if error, was
harmless.
Rule 604(d) provides in pertinent part that before
a defendant who pleaded guilty may appeal from a judgment
entered on the plea, the defendant must file a motion to
withdraw the guilty plea and vacate the judgment within
30 days of the imposition of sentence. If only the
sentence is being challenged, as in the case at bar, the
defendant must file a motion to reconsider the sentence
in the circuit court within 30 days of the date on which
the sentence is imposed. The rule further provides that
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 sentence or the
entry of the plea of guilty, has examined the trial court
file and report of proceedings *** and has made any
amendments to the motion necessary for adequate
presentation of any defects in those proceedings ***."
145 Ill. 2d R. 604(d).
Compliance with the motion requirement of Rule 604
permits the trial judge who accepted the plea and imposed
sentence to consider any allegations of impropriety that
took place dehors the record and correct any error that
may have led to the guilty plea. See, e.g., People v.
Wilk, 124 Ill. 2d 93, 104 (1988); Janes I, 158 Ill. 2d at
31. Requiring the defendant's counsel to file the
requisite certificate 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. The
attorney certificate thereby encourages the preservation
of a clear record, both in the trial court and on appeal,
of the reasons why a defendant is moving to withdraw his
plea or to reduce sentence. See, e.g., People v. Dean, 61
Ill. App. 3d 612 (1978). Because Rule 604(d) is designed
both to protect defendant's due process rights and to
eliminate unnecessary appeals, this court requires strict
compliance with its requirements, including the filing of
the attorney certificate in the trial court. Janes I, 158 Ill. 2d at 35.

BACKGROUND
In September 1993, Steven M. Shirley pleaded guilty,
in the circuit court of St. Clair County, and was
convicted of aggravated criminal sexual assault,
aggravated battery, and unlawful production of cannabis
sativa plants. The factual basis for the plea indicated
that approximately two weeks before the aggravated
criminal sexual attack and aggravated battery, defendant
was arrested and charged with unlawful production of
cannabis sativa plants, which police officers discovered
at defendant's residence while responding to a neighbor's
report of a domestic disturbance between defendant and
his wife. While out on bond for the cannabis offense,
defendant committed the other two offenses. The record
reflects that on April 10, 1993, at approximately 4 a.m.,
defendant entered the residence where his wife and a male
companion were sleeping. At the time of this entry,
defendant was subject to a domestic violence order of
protection issued on behalf of his wife. Defendant
attacked her and her male companion while they were
asleep in a bedroom. Defendant stabbed the male victim,
inflicting great bodily harm, and then sexually assaulted
his wife at knifepoint. Upon hearing a noise outside,
defendant fled the scene, but threatened to return and
kill the two victims if they called the police.
As part of the subsequent plea negotiations, the
State agreed to recommend probation for the cannabis
charge and to request sentences on the other two felony
charges not to exceed 15 years' imprisonment. After
defendant was admonished of his rights and was explained
the range of sentencing that he could receive for the
offenses charged, the circuit court accepted the guilty
plea. During this plea hearing the court inquired whether
anyone had coerced defendant's acquiescence to the plea
or had made any promises other than the State's agreement
not to recommend a sentence in excess of 15 years.
Defendant responded in the negative. He stated that his
plea of guilt was freely and voluntarily made.
At the sentencing hearing, the court considered
evidence in mitigation and aggravation, as well as
argument of counsel. The court imposed a 12-year sentence
of imprisonment on the aggravated criminal sexual assault
conviction, a Class X felony, and a two-year sentence for
aggravated battery, a Class 3 felony, both sentences to
be served concurrently. On the cannabis charge, also a
Class 3 felony, the court ordered defendant to serve a
two-year conditional discharge sentence, consecutive to
the prison terms. The court then explained to defendant
the procedure to be followed if he wished to appeal from
the judgment. The court advised defendant that if he
wished to appeal from the sentence, he would first have
to file a written motion to withdraw the guilty plea. The
court also stated that defendant had 30 days to "file a
motion to reduce the sentence as excessive."[fn1]
On December 3, 1993, within 30 days of the
sentencing, defendant's trial counsel filed a "Motion to
Reduce/Modify Sentence." The sole ground stated in the
motion was "[t]hat the defendant feels his sentence is
excessive." Defense counsel did not file a Rule 604(d)
certificate at that time. The trial court denied
defendant's motion.
Defendant's trial counsel did not file a notice of
appeal from the denial of this motion. However, defendant
subsequently requested and was granted leave to file a
late notice of appeal. A public defender was appointed to
represent him during the appeal from the denial of his
motion to reduce sentences. In an affidavit attached to
the motion for leave to file a late notice of appeal,
defendant represented that he had informed his trial
counsel he wanted to appeal his sentences and was not
aware that his counsel did not file an appeal. He also
stated that his sentences were "excessive given [his]
background and work history."
The appellate court remanded the cause for a new
hearing on the motion to reduce sentences. No. 5--94--
0175 (unpublished order under Supreme Court Rule 23). The
remand was ordered because defendant's trial counsel,
prior to the hearing on the motion, had failed to file in
the trial court the attorney certificate required by
Supreme Court Rule 604(d). Citing to this court's
decision in Janes I, 158 Ill. 2d 27, the appellate panel
held that motions to reduce sentences imposed upon guilty
pleas must be filed with the certificate of the
defendant's attorney in the circuit court as a
prerequisite for appeal. The certificate must indicate
that the attorney has consulted with the client, reviewed
the proceedings of the plea of guilty, and included in
the motion whatever matters are necessary to adequately
present any defects in the plea process or sentencing.
The record indicates that after the remand to the
circuit court, defendant's trial counsel filed an
attorney certificate pursuant to Supreme Court Rule
604(d) and also filed a motion to withdraw as counsel.
The attorney certificate, file dated June 27, 1995,
stated that prior to his filing the motion to reconsider
sentences, trial counsel had "consulted with the
defendant to ascertain his contentions of error in the
sentence and examined the trial court file and report of
proceedings in the plea of guilty to determine if there
were any defects in those proceedings." The certificate
does not indicate the date on which trial counsel
consulted with defendant to ascertain his claim of error
in sentencing. Although the original motion for reduction
of sentences was filed in December 1993, the remand for
new hearing on the motion occurred in 1995. Trial counsel
filed the June 27, 1995, attorney certificate as a
separate document, not attached to a motion to reduce
sentence.[fn2]
The circuit court granted trial counsel's motion to
withdraw as defendant's attorney, and appointed the
public defender's office to represent defendant during
the new hearing on defendant's motion to reduce
sentences. The assistant public defender assigned to the
case filed her own motion on behalf of defendant. This
motion, dated July 11, 1995, repeated virtually the same
language as was found in the motion to reduce sentences
which previous counsel had filed in 1993. Like the
original motion, the assistant public defender's motion
stated that "defendant feels his sentence is excessive."
However, the assistant public defender failed to attach
the requisite 604(d) certification to her motion.
At the hearing on defendant's motion, the assistant
public defender told the court that she agreed with the
statements which prior trial counsel had made during the
sentencing and at the original motion to reconsider or
reduce sentences. The assistant public defender added
that defendant had worked regularly in the prison as the
chief cook. The circuit court denied defendant's motion
to reduce sentences. Four days later, the assistant
public defender filed in the circuit court her Rule
604(d) attorney certificate and a notice of appeal. Her
certificate stated that she had "consulted with the
defendant to ascertain his contentions of error in this
cause; that [she had] examined the trial court file and
report of proceedings of the plea of guilty and
sentencing hearing, and that defendant offer[ed] no
amendments to the Motion to Reconsider/Reduce Sentence."
In his appeal from the denial of his second motion
to reduce sentences, defendant argued that the assistant
public defender's attempt to comply with Rule 604(d) was
untimely, as it was not filed before the hearing on the
motion to reduce sentences. Therefore, defendant
contended, strict compliance with Supreme Court Rule
604(d) was lacking and a second remand was required. The
appellate court rejected defendant's arguments. Although
the appellate panel acknowledged that Rule 604(d) clearly
"contemplates that the certificate be filed prior to the
hearing on a postplea motion," the panel nonetheless
rejected defendant's argument that the tardy filing of
the certificate required another remand for further
proceedings. 284 Ill. App. 3d 734, 737. The appellate
panel held that the contents of the assistant public
defender's certificate strictly complied with the
requirements of Rule 604(d). The panel further concluded
that if error existed with respect to the timing of the
certificate's filing in the trial court, such error was
harmless. 284 Ill. App. 3d at 737.
Defendant sought leave to appeal in this court, and
we granted his petition. 166 Ill. 2d R. 315. For the
reasons which follow, we affirm the judgment of the
appellate court.

ANALYSIS
The sole ground for defendant's appeal is the
failure of the assistant public defender to file her
attorney certificate prior to the remand hearing on the
Rule 604(d) motion to reduce defendant's sentences.
According to defendant, he is entitled to a second remand
of this cause to the trial court for what will be a third
hearing on his sentencing motion. In support, defendant
cites decisions from this court which hold that strict
compliance with Rule 604(d)'s attorney certificate
requirement is mandatory, and that the rule requires the
certificate to be filed before the hearing on the motion
to withdraw guilty plea or to reconsider sentences. See
Janes I, 158 Ill. 2d at 35; Janes II, 168 Ill. 2d at 389.
Defendant contends that the appellate court in the case
at bar applied a lesser standard of substantial
compliance or harmless error, which contravenes this
court's rulings in the Janes cases.
In Janes I, we held that a defendant who wishes to
appeal from a judgment entered upon his plea of guilty
must file, as a condition precedent to such appeal, a
motion to withdraw his guilty plea pursuant to Rule
604(d). In addition, we held that the rule plainly
requires defense counsel to file a certificate that he or
she has reviewed the proceedings, consulted with the
defendant, and made any amendments to the motion
necessary for adequate presentation of any defects in the
plea proceedings. Instead of complying with Rule 604(d),
and filing the required certificate in the trial court,
the defendant's counsel in Janes I furnished a
certificate to the State during the direct appeal.
Defendant in Janes I argued in this court that the cause
should be remanded to the circuit court to afford him the
opportunity to file a new motion to withdraw his guilty
plea because of his counsel's failure to comply with Rule
604(d). We agreed, concluding that, in the absence of
strict compliance with Rule 604(d), the appropriate
remedy was to remand the cause to the circuit court to
permit the defendant to file a new motion to withdraw his
plea.
Our ruling in Janes I reflected an express
reaffirmance of statements from prior opinions in which
this court held that the filing of a motion to withdraw
a guilty plea is a condition precedent to an appeal from
a conviction (e.g., Wilk, 124 Ill. 2d at 107), and that
a motion to reconsider sentence is a condition precedent
to an appeal from a sentence imposed upon a guilty plea
(People v. Wallace, 143 Ill. 2d 59, 60 (1991)). This
court has explained that the "rule was designed to
eliminate needless trips to the appellate court and to
give the trial court an opportunity to consider the
alleged errors and to make a record for the appellate
court to consider on review in cases where defendant's
claim is disallowed." Wilk, 124 Ill. 2d at 106. The
requirements of Rule 604(d) encourage the preservation of
a clear record which includes the reasons why a defendant
is moving to withdraw his plea or to reduce sentence.
See, e.g., Dean, 61 Ill. App. 3d at 615.
As a result of our decision in Janes I, the
defendant in that case received a new hearing on his
motion to withdraw his guilty plea. The trial court
denied the motion. On direct appeal to this court, in
Janes II, the defendant contended that he should be given
another new hearing on his motion to withdraw guilty plea
because the lawyer who had represented him on remand was
the same attorney who had provided the State with a Rule
604(d) certificate during the pendency of the first
appeal, which the State used in its argument that
defendant was not entitled to a remand. According to the
defendant in Janes II, his counsel labored under a
conflict of interest because his actions in the first
appeal aligned him with the State. We rejected the
defendant's claim that he was entitled to another hearing
on the motion to withdraw his guilty plea, and affirmed
the circuit court's judgment on the guilty plea. Janes
II, 168 Ill. 2d at 393.
In the instant case, defendant received the full
benefit of the Janes I ruling because he was granted a
remand and a new hearing on his sentencing motion.
However, he contends that his remand hearing was as
flawed as the original hearing because the attorney
representing him on remand failed to file the requisite
Rule 604(d) certificate until after the remand hearing.
Therefore, according to defendant, the circuit court did
not have the benefit of the attorney certificate in
evaluating defendant's motion to reduce sentences.
Consequently, defendant contends, strict compliance with
Rule 604(d) has not been established in the record and he
must be granted another remand to permit a further
opportunity to file for a reduction in sentences.
We reject defendant's implicit premise that the
strict compliance standard of Janes I must be applied so
mechanically as to require Illinois courts to grant
multiple remands and new hearings following the initial
remand hearing. Where, as here, the defendant was
afforded a full and fair second opportunity to present a
motion for reduced sentencing, we see limited value in
requiring a repeat of the exercise, absent a good reason
to do so. All parties involved in the instant case were
or should have been aware, in light of the appellate
court's order of remand in reliance on Janes I, that the
sole reason defendant was being given a second
opportunity to argue for a reduced sentence was that the
trial court had not been furnished with the requisite
attorney certificate pursuant to Rule 604(d) at the time
of the first hearing in 1993. Defendant was well aware of
the appellate court's order of remand, as indicated in
certain letters in the record written by defendant. It
was, therefore, incumbent upon defendant, his counsel,
the State, and the circuit court to insure that
compliance with the requirements of this court's Rule
604(d) would be met in this second hearing on the motion
to reduce sentences.
Before the second hearing took place, on August 3,
1995, defendant's original trial counsel complied with
the remand order by filing a Rule 604(d) certificate, at
the same time he withdrew as counsel. The assistant
public defender then took over defendant's
representation. She filed her own motion to reduce or
reconsider sentences. Defendant's only challenge was to
the "excessiveness" of his sentences, rather than any
impropriety in the plea process or sentencing itself.
Significantly, defendant did not move to withdraw the
guilty plea under which the State capped its sentencing
recommendation at 15 years. Absent the plea agreement,
the State could have recommended up to 30 years on the
Class X offense, as well as increased penalties on the
other counts. Indeed, as the trial court observed in
warning defendant not to violate the conditions of bond
pending sentencing, "[Y]ou qualify on your sentencing
date for, by my count, up to 45 years with extended terms
and consecutive sentences." The trial court ultimately
imposed a prison term of fewer years than the maximum
available under the State's agreed-upon sentencing cap.
There is nothing in the record, or in the two motions to
reduce sentences, or in the two Rule 604(d) certificates
filed by two different attorneys, which indicates any
reason why this court should remand the cause for a third
hearing on defendant's claim that his sentences were
excessive. In light of all these circumstances, requiring
another remand and hearing on the motion to reduce
sentences would be an empty and wasteful formality.
Our holding in no way retreats from this court's
call for strict compliance with our rules. We observed,
in Janes I, that after this court's ruling in Wilk, the
appellate court adhered to the strict compliance mandate
and renounced the prior practice of determining whether
errors in failing to comply with Rule 604(d) were
harmless or prejudicial. See, e.g., People v. Hayes, 195
Ill. App. 3d 957, 960-61 (1990). We reaffirm the
reasoning and disposition of those cases which have
faithfully followed the strict compliance standard. In
general, strict compliance with the attorney
certification component of Rule 604(d) means the
certificate must be filed in the trial court, rather than
on appeal, as occurred in Janes I. The filing should
precede or be simultaneous with the hearing in the trial
court. Such a procedure will insure that the trial court,
in considering a defendant's motion to withdraw his or
her guilty plea or to reduce sentence, will be apprised
that defense counsel has reviewed the proceedings with
the defendant and prepared any necessary amendments to
the motion. If this standard of strict compliance is not
met, the remedy is a remand to afford defendant another
opportunity to be heard on his Rule 604(d) motion.
However, once this remedy is granted, there is no further
requirement under Rule 604(d) that successive remands and
rehearings will be ordered.
We conclude that defendant is not entitled to any
further proceedings on his twice-heard motion to reduce
his sentences as being excessive. Because of our holding
it is unnecessary to reach the State's argument, raised
for the first time in the appeal to this court, that the
relief defendant seeks is not available because of this
court's recent opinion in People v. Evans, 174 Ill. 2d 320 (1996). In Evans, we held that when a defendant
enters a negotiated guilty plea he cannot attack his
sentence unless he moves to withdraw his plea in its
entirety. The State contends that Evans precludes
defendant from maintaining his appeal, and therefore the
issue involving the timeliness of the Rule 604(d)
certificate is legally irrelevant. Defendant responds
that the issue is not properly before this court. We
express no opinion on, and decline to address, the merits
of the State's argument on this issue because its
resolution is not required for the disposition of this
appeal.
For the foregoing reasons, we affirm the judgment of
the appellate court.

Appellate court judgment affirmed.
JUSTICE HARRISON, specially concurring:
While purporting to retain the strict compliance
standard of Janes I, the majority holds that the standard
need not be applied where, as here, a defendant has
already been granted a remand and a new hearing on his
resentencing motion. Strict compliance, as it turns out,
is not so strict after all.
The merits of the majority's new rule are
questionable. Although I appreciate its pragmatic appeal,
it creates the possibility that a defendant's motion to
withdraw his plea or reconsider his sentence may be
denied without a proper attorney certificate having ever
been filed. If another mistake is made on remand and the
defendant still does not receive the requisite assistance
of counsel in preparing and presenting his motion, the
majority's new rule would leave the defendant without any
recourse. This hardly seems consistent with the
principles of Janes I or the purposes of Rule 604(d).
Wholly aside from these issues, I am puzzled as to
why the majority felt compelled to fashion a new rule
based on the facts of this case. As the majority
correctly notes, defendant's attorney did file a Rule
604(d) certificate following remand and prior to the new
hearing on his resentencing motion. Although a
substitution of counsel subsequently took place, that was
inconsequential for Rule 604(d) purposes. Nothing in that
rule requires that the certificate be filed by the same
attorney who drafts the motion and argues it before the
circuit court.
Because a proper Rule 604(d) certificate was timely
filed on remand, I agree with the majority that defendant
is not entitled to another remand and another hearing on
his motion to reduce sentence. Accordingly, I concur.

JUSTICE HEIPLE joins in this special concurrence.


[fn1] We note that the 1993 amendment to section 5--8--
1(c) of the Unified Code of Corrections (730 ILCS 5/5--8-
-1(c) (West 1994)) requires that a defendant file a
written post-sentencing motion in the trial court to
preserve sentencing issues for appellate review. See
People v. Reed, 177 Ill. 2d 389 (1997). Similarly,
Supreme Court Rule 604(d), which applies to sentences
imposed upon guilty pleas rather than after contested
trials, requires that a motion to reconsider the sentence
must be filed in the trial court within 30 days of the
date on which the sentence is imposed.


[fn2] We note that neither defendant nor the State refer
to this Rule 604(d) certificate in their briefs. Also,
the appellate panel did not mention the existence of this
Rule 604(d) certificate, and apparently assumed that the
only attorney certificate that had been filed in the
trial court was the one that the assistant public
defender filed four days after the remand hearing on the
motion to reduce sentences.