No. 2-11-0666 Opinion filed September 29, 2014 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 08-CF-4923 ) MARTINEZ L. MINEAU, ) Honorable ) Rosemary Collins, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUDSON delivered the judgment of the court, with opinion. Justice Birkett concurred in the judgment and opinion. Justice Jorgensen specially concurred, with opinion.

OPINION

¶1 Defendant, Martinez L. Mineau, was charged with burglary (720 ILCS 5/19-1(a) (West

2008)) and unlawful possession of a stolen motor vehicle (625 ILCS 5/4-103(a) (West 2008)).

Pursuant to an agreement with the State, he pleaded guilty to the unlawful-possession charge and

the State dismissed the burglary charge. Defendant later moved to withdraw the plea. Following

a hearing, the trial court denied the motion. Defendant appeals, contending that the cause should

be remanded for a new hearing where an attorney who represented him at the hearing did not file

a certificate pursuant to Illinois Supreme Court Rule 604(d) (eff. July 1, 2006) and the certificate

that cocounsel filed was insufficient. We affirm.

¶2 Defendant was indicted on January 8, 2009. Represented by Assistant Public Defender

Erin Hannigan, he pleaded not guilty. Questions soon arose about defendant’s fitness to stand

trial but, following a hearing, the court found him fit.

¶3 On August 24, 2010, defendant pleaded guilty to unlawful possession of a stolen motor

vehicle in exchange for the dismissal of the burglary charge. There was no agreement about a

sentence. Ultimately, the trial court sentenced defendant to 8 years’ imprisonment, with credit

for 668 days he spent in presentencing custody.

¶4 Hannigan filed on defendant’s behalf a motion to withdraw the plea or, alternatively, to

reconsider the sentence. At a January 13, 2011, court appearance, Hannigan told the court that

defendant’s case was being reassigned to a new public defender, David Doll. Nonetheless,

Hannigan filed an amended postplea motion and a Rule 604(d) certificate. The certificate stated:

“I hereby state that I have consulted with the Defendant, Martinez Mineau, by

mail and/or in person, to ascertain defendant’s contentions of error in the sentence or the

entry of the plea of guilty; have examined the trial court file and report of proceedings of

the plea of guilty; and have made any amendments to the motion necessary for adequate

presentation of any defects in those proceedings.”

¶5 Both Hannigan and Doll appeared at the hearing on the motion, although Doll questioned

defendant and argued on his behalf. Following the hearing, the trial court denied the motion.

Defendant, through Hannigan, filed a timely notice of appeal.

¶6 Defendant contends that he is entitled to a new hearing on his postplea motion because

Doll, who questioned him and delivered the closing argument at the hearing, did not file a Rule

604(d) certificate. Defendant alternatively contends that the certificate Hannigan filed is

defective because it uses the disjunctive “and/or” or “or” in two places.

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¶7 In our initial disposition, we affirmed the trial court’s denial of defendant’s motion,

holding that Hannigan’s certificate was sufficient. People v. Mineau,

.

Subsequently, the supreme court directed us to vacate our disposition and to reconsider in light

of People v. Tousignant,

. People v. Mineau, No. 115324 (Ill. May 28, 2014)

(supervisory order). Having done so, we conclude that Tousignant does not dictate a different

result.

¶8 Rule 604(d) requires that, when a defendant moves to withdraw a guilty plea or to

reconsider a sentence imposed following a guilty plea, “[t]he 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. July 1, 2006). It is well established that

“[d]efense counsel must strictly comply with Rule 604(d)’s certificate requirement, and, when

counsel fails to do so, the case must be remanded to the trial court for proceedings in compliance

with the rule.” People v. Love,

(2008).

¶9 Nothing in the rule’s plain language requires that, when a defendant is simultaneously

represented by multiple attorneys from the same office, each attorney must file a certificate. In

arguing for such a rule, defendant relies on two cases, People v. Herrera,

, and People v. Ritchie,

(1994), that are distinguishable.

¶ 10 In Herrera, the attorney who filed the certificate left the public defender’s office to

become a judge, and a different attorney from the office represented the defendant at the hearing.

Herrera,

, & 5. Thus, we held, “Without a compliant certificate filed

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by the attorney who represents the defendant at his or her postplea hearing, the court has no

assurance that the attorney presenting the motion has a grasp of the record and the defendant’s

contentions of error.” (Emphasis in original.)

& 11. Our concern was that the record did not

disclose that the first attorney had conferred with the second about the contentions he had

discussed with the defendant.

& 12.

¶ 11 In Ritchie, the attorney who filed the certificate was still employed by the public

defender’s office, but the record did not show that he continued to represent the defendant or

appeared at the hearing. Our primary holding was that the certificate the first attorney filed did

not comply with the rule. Ritchie,

. We further noted that the certificate

was not filed by the attorney who actually represented the defendant at the hearing.

Moreover, there was no indication in the record that the second attorney actually consulted with

the first attorney or with the defendant.

.

¶ 12 The problem that concerned us in Herrera and Ritchie is not present here, where

Hannigan continued to represent defendant and, indeed, attended the hearing. The record shows

that, despite Hannigan’s earlier statement that the case was being “reassigned,” she filed an

amended motion, appeared at the hearing on it, and filed the notice of appeal. When an attorney

leaves an office, depending on the circumstances, he or she might or might not discuss pending

files with his or her replacement. Thus, the concern in Herrera was justified. Here, it is simply

not reasonable to assume that Hannigan, while continuing to represent defendant, assigned Doll

substantial responsibility for the file but did not discuss with him defendant’s contentions of

error that were the basis of Doll’s questioning at the hearing. Moreover, Hannigan, who drafted

and filed the motion, appeared at the hearing. We refuse to assume that Hannigan sat at the

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counsel table with Doll but did not discuss the case with him before letting him question

defendant.

¶ 13 Defendant insists that such an inference is reasonable here because, although the motion

alternatively sought reconsideration of the sentence, Doll did not mention that aspect of it at all.

Defendant cites no case for the proposition that an attorney arguing a motion must specifically

mention each point argued in the written motion. Doll and Hannigan could reasonably have

concluded that the argument for withdrawing the plea was stronger and that they should focus on

it. Moreover, the argument for reconsidering the sentence was relatively straightforward and did

not require defendant’s testimony.

¶ 14 While it might have been better practice for Doll to file his own certificate, we hold that,

where Hannigan prepared and filed the motion and continued to represent defendant throughout

the proceedings, a new certificate by Doll was not required. Because we conclude that Herrera

and Ritchie are distinguishable, we decline the State’s invitation to reconsider those decisions.

¶ 15 Defendant alternatively contends that the certificate Hannigan filed is deficient. This is

so, he claims, because the certificate uses the disjunctive “and/or” or “or” in two places. We

disagree. The certificate states that counsel consulted with defendant “by mail and/or in person,”

to ascertain his contentions of error. However, we know of no requirement that counsel must

specify precisely how he or she communicated with the defendant. Defendant relies on People v.

Prather,

(2008). There, however, although the court found the

certificate deficient, it rejected the defendant’s argument that the certificate had to specify the

method of consultation. It is sufficient that the certificate shows that at least one of the approved

means of communication was used, even if it is not clear which one.

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¶ 16 Nor do we find fault in the portion of the certificate stating that counsel consulted with

defendant “to ascertain 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. July 1, 2006). This comports exactly with

the rule’s text. Courts have repeatedly held that a certificate need not recite verbatim the rule’s

language. See People v. Wyatt,

(1999). However, we are aware of no

case finding a certificate insufficient for following the rule’s language too closely.

¶ 17 In Tousignant, the supreme court held that, in order to effectuate the rule’s purpose, an

attorney must consult with his or her client about both types of error: in the plea proceedings and

in the sentence. In other words, “or,” as used in the rule, means “and.” Thus, an attorney must

certify that he or she has consulted with a defendant “ ‘to ascertain defendant’s contentions of

error in the sentence and the entry of the plea of guilty.’ ” (Emphasis in original.) Tousignant,

. Moreover, this is so even where the defendant files only one type of

postplea motion. Id. ¶ 21.

¶ 18 Given that “or” in the rule means “and,” counsel’s certificate here literally complies.

Nothing in Tousignant demonstrates an intention to change the rule’s literal language or to

change what a certificate must state. Further, we note that, given that counsel filed on

defendant’s behalf a motion to withdraw the plea or, in the alternative, to reconsider the

sentence, it is reasonable to infer that counsel consulted with defendant about both types of error.

¶ 19 We note that, in his special concurrence in Tousignant, Justice Thomas anticipated this

situation, pointing out that literal compliance could lead to uncertainty as to whether counsel

consulted with his or her client about both types of error. However, he implicitly found that

using “or” complies with the rule as presently written. Id. ¶ 27 (Thomas, J., specially

concurring).

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¶ 20 The judgment of the circuit court of Winnebago County is affirmed.

¶ 21 Affirmed.

¶ 22 JUSTICE JORGENSEN, specially concurring.

¶ 23 I agree with the outcome and analysis of the majority decision. I write separately to

emphasize that, as the majority notes, there is a better practice. While not a basis to reverse

here, the better practice would have been for attorney Doll to file his own Rule 604(d)

certificate.

¶ 24 Further, while the content of the certificate filed by attorney Hannigan recites the letter of

Rule 604(d), it does not specifically state what counsel did or did not do. In the wake of

Tousignant, the “or” in Rule 604(d) now means “and.” Thus, the better practice going forward

would be for counsel to use only “and” (as opposed to “or” or “and/or”) to certify that he or she

has consulted with the defendant on both issues (plea and sentence). If counsel would do so,

courts would not need to assume that, when counsel wrote “or,” he or she meant “and,” and the

scope of counsel’s consultation would not need illumination by collateral sources, such as the

motion.

¶ 25 Similarly, although the majority is correct that there is no authority for defendant’s

contention that counsel’s Rule 604(d) certificate is insufficient because she used the language

“and/or” in the designation of how she communicated with defendant, I again suggest that clarity

should prevail and that the better practice is for counsel to certify with specificity how he or she

consulted with the defendant (e.g., in person, by mail, or both).

¶ 26 In sum, the purpose of Rule 604(d) is to ensure that counsel has communicated with the

defendant to ascertain his or her contentions of error in both the plea and the sentence. It is a

logical step to require counsel to specifically certify that he or she has consulted with the

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defendant about both the plea and the sentence and whether that consultation took place by mail

or in person or both. Doing so would provide both the trial and appellate courts with the clearest

averments upon which to judge whether counsel fulfilled his or her obligations under Rule

604(d).

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