FILED

August 4, 2015 Carla Bender NO. 4-13-0946 th 4 District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County DEMETRIOUS J. MASON, ) No. 13CF227 Defendant-Appellant. ) ) Honorable ) Heidi Ladd, ) Judge Presiding.

JUSTICE TURNER delivered the judgment of the court, with opinion. Presiding Justice Pope and Justice Knecht concurred in the judgment and opinion.

OPINION

¶1 Pursuant to a negotiated plea agreement, defendant pleaded guilty to criminal

sexual abuse, and the Champaign County circuit court sentenced defendant to 30 months'

probation. Thereafter, defendant filed a timely pro se motion to withdraw his guilty plea.

Defense counsel also filed a motion to withdraw defendant's guilty plea and a certificate as

required by Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013). After a hearing, the court

denied defendant's request to withdraw his guilty plea.

¶2 Defendant appeals, contending he is entitled to a remand for new postplea

proceedings because his counsel's Rule 604(d) certificate did not comply with the rule. We

reverse and remand.

¶3 I. BACKGROUND

¶4 In February 2013, the State charged defendant with criminal sexual assault (720 ILCS 5/12-13(a)(2) (West 2010) (text of section effective until July 1, 2011)) for his actions in

February 2011. The State later added a second charge of criminal sexual abuse (720 ILCS 5/12-

15(a)(2) (West 2010) (text of section effective until July 1, 2011)) for defendant's actions in

February 2011. Defendant and the State entered into a plea agreement, under which defendant

would plead guilty to the criminal-sexual-abuse charge with a sentence of 30 months' probation

with 180 days in jail and the State would move to dismiss the criminal-sexual-assault charge. At

the June 18, 2015, plea hearing, the trial court accepted the parties' plea agreement and continued

sentencing for defendant to obtain a sex-offender evaluation. On July 31, 2013, the court

sentenced defendant in accordance with the terms of the plea agreement and dismissed the

criminal-sexual-assault charge.

¶5 On August 20, 2013, defendant filed a timely pro se motion to withdraw his guilty

plea, asserting his right to a speedy trial was violated. Defense counsel also filed a motion to

withdraw defendant's guilty plea, which incorporated defendant's speedy-trial argument. On

October 23, 2013, the trial court held a hearing on defendant's postplea motion, and defense

counsel filed the Rule 604(d) certificate at issue in this appeal. At the conclusion of the hearing,

the court denied defendant's postplea motion.

¶6 On October 25, 2013, defendant filed a timely notice of appeal in sufficient

compliance with Illinois Supreme Court Rule 606 (eff. Feb. 6, 2013). Accordingly, this court

has jurisdiction under Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013).

¶7 II. ANALYSIS

¶8 On appeal, defendant's sole argument is his counsel's Rule 604(d) certificate is

deficient because it fails to show counsel consulted with defendant about his contentions of error

related to both his guilty plea and sentence. Due to the deficiency, defendant asserts he is

-2- entitled to a remand for new postplea proceedings. The State contends defense counsel's Rule

604(d) certificate was not deficient, and if it was, remand is not warranted. We review de novo

the question of whether defense counsel complied with Rule 604(d). People v. Grice,

,

(2007).

¶9 Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013) provides, in pertinent part,

the following:

"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." (Emphasis

added.)

In People v. Tousignant,

,

, our supreme court held that, in the

above context, "the word 'or' is considered to mean 'and.' " It further explained that, "[u]nder 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.' " (Emphasis

in original.) Tousignant,

,

. The aforementioned reading

applies even when the defendant files only one type of postplea motion. Tousignant,

,

. In his special concurrence, Justice Thomas emphasized the need for

Rule 604(d) to be amended because, without such, "the rule will continue to create confusion,

and we will not know with any degree of certainty which attorneys are complying and which are

-3- not." Tousignant,

,

(Thomas, J., specially concurring).

Despite its decision in Tousignant and an amendment to a different part of Rule 604(d), the

supreme court has not amended the "or" addressed in Tousignant. See Ill. S. Ct. R. 604(d) (eff.

Dec. 11, 2014).

¶ 10 Since the Tousignant decision, the Second District has addressed a certificate's

compliance with Rule 604(d) where the certificate recited the verbatim language of Rule 604(d).

People v. Mineau,

,

. The Second District found that,

since "or" means "and" for purposes of Rule 604(d) certificates, a counsel's certificate that uses

"or" literally complies. Mineau,

,

. The Mineau

court reasoned "[n]othing in Tousignant demonstrates an intention to change the rule's literal

language or to change what a certificate must state." Mineau,

,

. Moreover, it noted that, in his special concurrence, Justice Thomas implicitly

found using "or" complied with the rule as currently written. Mineau,

,

. Last, on the facts of that case, the Second District pointed out

that, since defense counsel filed a motion to withdraw the defendant's plea or, in the alternative,

to reconsider his sentence, it could reasonably be inferred counsel consulted with the defendant

about both types of error. Mineau,

,

.

¶ 11 Recently, the Third District has disagreed with the Second District's holding that a

verbatim recital of the rule complies with Rule 604(d)'s certificate requirement. People v.

Scarbrough,

, pet. for leave to appeal pending, No. 119564 (July

21, 2015). Like Justice Thomas in his special concurrence in Tousignant, the Third District

explained the verbatim language of Rule 604(d) does not explicitly identify what defense counsel

actually did during the postplea proceedings. See Scarbrough,

.

-4- It concluded a Rule 604(d) certificate must specify what counsel actually did to achieve

compliance with the rule. Scarbrough,

. While it found a

certificate's verbatim recitation of the language in Rule 604 was technically noncompliant with

the rule, the Third District did not remand the cause for new postplea proceedings because the

defendant did not raise a "claim of omitted legal contentions or of prejudice." Scarbrough,

.

¶ 12 In this case, the Rule 604(d) certificate states, in pertinent part, the following:

"Consulted with the defendant in person to ascertain his contentions of error in the sentence or

the entry of the plea of guilty." Thus, like the reviewing courts in Mineau and Scarbrough, we

must address whether a certificate that tracks the verbatim language of Rule 604(d) is compliant

with Rule 604(d) in light of the supreme court's decision in Tousignant.

¶ 13 Usually, as the Second District has recognized, the utilization of a rule's exact

language is the best way to comply with a rule's requirement. See People v. Herrera,

,

(stating that using the rule's language verbatim "is the

better practice"). However, the Tousignant decision declared the general disjunctive meaning of

the word "or" in Rule 604(d) did not apply in that context and, in fact, "or" meant the conjunctive

"and." Tousignant,

,

. Since Tousignant did not apply the

ordinary meaning of "or," the use of the word "or" in a Rule 604(d) certificate does not really

indicate what counsel actually did regarding the ascertainment of contentions of error related to

both the defendant's guilty plea and sentence. See Tousignant,

,

(Thomas, J., specially concurring); Scarbrough,

. Moreover,

contrary to Mineau and the State's argument, the supreme court did indicate its intent to change

what a Rule 604(d) certificate must state when it declared "counsel is required to certify that he

-5- has consulted with the defendant 'to ascertain defendant's contentions of error in the sentence and

the entry of the plea of guilty.' " (Emphasis in original.) Tousignant,

,

. While the supreme court has not amended Rule 604(d) to be consistent with its

holding in Tousignant, we will not overlook the aforementioned directive given by the

Tousignant majority. Accordingly, we agree with the Third District in Scarbrough that a Rule

604(d) certificate, which uses Rule 604(d)'s verbatim language with the "or," does not precisely

show compliance with Rule 604(d) as explained by our supreme court in Tousignant.

¶ 14 While we agree with the Third District's interpretation of Tousignant, we find

remand for strict compliance with Tousignant is appropriate.

¶ 15 III. CONCLUSION

¶ 16 For the reasons stated, we reverse the Champaign County circuit court's denial of

defendant's motion to withdraw his guilty plea and remand for proceedings in strict compliance

with Rule 604(d)'s requirements as explained by our supreme court in Tousignant and this

opinion.

¶ 17 Reversed and remanded.

-6-