Opinion filed January 10, 2017 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2017

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-16-0019 v. ) Circuit No. 10-CF-2408 ) PAUL J. EVANS III, ) Honorable ) Amy Bertani-Tomczak, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE O’BRIEN delivered the judgment of the court, with opinion. Justice Carter concurred in the judgment and opinion. Justice Schmidt dissented, with opinion. _____________________________________________________________________________

OPINION

¶1 Defendant, Paul J. Evans III, pled guilty to home invasion (720 ILCS 5/12-11(a)(1) (West

2010)) and was sentenced to a term of 12 years’ imprisonment. Defendant has tried to challenge

that sentence as excessive through a postsentencing motion numerous times, but each time this

court has remanded the matter on appeal either because defense counsel failed to strictly comply

with Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016) or on jurisdictional grounds.

Following our latest remand, the trial court again denied defendant’s motion to reduce sentence.

On this appeal, defendant once again argues that his attorney failed to strictly comply with Rule 604(d). Once again, we agree with defendant and must remand the matter for strict compliance

with that rule.

¶2 FACTS

¶3 Defendant entered an open plea of guilty to one count of home invasion in exchange for

the nolle prosequi of the remaining charges. On November 16, 2011, the trial court sentenced

defendant to a term of 12 years’ imprisonment. The court also made a finding of great bodily

harm, in turn ordering that defendant serve 85% of his sentence.

¶4 Defendant filed a motion to reconsider sentence on December 1, 2011. This motion to

reconsider sentence would be the first of three such motions filed in a two-year span. Each time,

the trial court denied the motion, and defendant appealed. On each appeal, this court remanded

the matter because counsel had not strictly complied with the certification requirements of Rule

604(d). See People v. Evans,

(providing detailed procedural

history).

¶5 On September 25, 2014, following this court’s third remand for Rule 604(d) compliance,

but prior to this court’s mandate being issued, defense counsel filed a new motion to reconsider

sentence and a Rule 604(d) certificate. In that filing, counsel certified, inter alia: “Counsel has

examined the Trial Court file and report of proceedings of the plea of guilty and was the original

counsel at both the plea and the sentencing hearing.” The trial court denied the motion prior to

the issuance of the mandate.

¶6 This court subsequently held that the trial court was without jurisdiction to rule on the

motion (id. ¶ 14) because the mandate from this court had not yet issued. The trial court’s

decision was void and therefore vacated. Id. ¶¶ 14, 17.

2 ¶7 On January 8, 2016, defense counsel filed—for the fifth time—a motion to reconsider

sentence and a Rule 604(d) certificate. In this certificate, as in the fourth certificate, defense

counsel certified: “Counsel has examined the Trial Court file and report of proceedings of the

plea of guilty and was the original counsel at both the plea and the sentencing hearing.” The trial

court denied the motion.

¶8 ANALYSIS

¶9 On this appeal, defendant argues that counsel has, once again, failed to strictly comply

with the certification requirements of Rule 604(d). Defendant contends that strict compliance

with the rule is mandatory and that the matter should therefore be remanded for such compliance.

The State argues that defense counsel was not required to file a Rule 604(d) certificate at all.

Alternatively, the State argues that defendant has already received a full and fair hearing

accompanied by a compliant certificate and that remand is therefore not necessary.

¶ 10 I. Certification Requirement Under Rule 604(d)

¶ 11 Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016) governs the procedures to be

followed where a defendant wishes to appeal after pleading guilty. The rule, in its current form,

mandates that defendants who entered an open guilty plea and wish to challenge the ensuing

sentence must file a motion to reconsider sentence within 30 days of the imposition of the

sentence. Id. Defendants who entered a negotiated guilty plea must file a motion to withdraw that

plea if they wish to challenge the sentence. 1 Id. The current version of the rule also provides:

“The defendant’s attorney shall file with the trial court a certificate stating that the

attorney has consulted with the defendant *** to ascertain defendant’s contentions

1 The rule defines a negotiated guilty plea as “one in which the prosecution has bound itself to recommend a specific sentence, or a specific range of sentence, or where the prosecution has made concessions relating to the sentence to be imposed.” Id. 3 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.

The rule currently provides an outline of the required certificate, which defense counsel may

simply print and fill in the blank spaces for the date and counsel’s name. Id.

¶ 12 Paragraph (d) was added to Rule 604 in 1975. Ill. S. Ct. R. 604(d), Committee Comments

(adopted July 1, 1975). The rule read: “The defendant’s attorney shall file with the trial court a

certificate ***.” Ill. S. Ct. R. 604(d) (eff. July 1, 1975). The rule was amended 11 times over the

next 39 years; in each iteration of the rule, the certificate requirement appeared in identical form.

¶ 13 Rule 604 was amended again on December 3, 2015. The amended rule added a clause to

the certification requirement, resulting in the following: “If a motion to withdraw the plea of

guilty is to be filed, the defendant’s attorney shall file with the trial court a certificate ***.” Ill. S.

Ct. R. 604(d) (eff. Dec. 3, 2015). The rule was amended again 96 days later, on March 8, 2016.

That amendment made only one change to the rule, removing the clause: “If a motion to

withdraw the plea of guilty is to be filed.” Ill. S. Ct. R. 604(d) (eff. Mar. 8, 2016).

¶ 14 Defense counsel in the present case filed his latest motion to reconsider sentence on

January 8, 2016. The version of Rule 604(d) in effect at that time was the version enacted on

December 3, 2015, which required a certificate only “[i]f a motion to withdraw the plea of guilty

is to be filed.” Ill. S. Ct. R. 604(d) (eff. Dec. 3, 2015). Because defendant was only filing a

motion to reconsider sentence, the plain language of the rule in effect at the time did not mandate

that counsel file a Rule 604(d) certificate.

4 ¶ 15 Defendant acknowledges that the plain language of Rule 604(d) in effect at the time of

filing did not require the filing of any certificate. However, he argues that the limiting clause

added in the December 3, 2015, version of the rule—and subsequently removed in the March 8,

2016, version—was simply a scrivener’s error, and should be ignored. Alternatively, defendant

contends that the version of the rule presently in effect can and should be applied retroactively.

Such retroactive application would require defense counsel to have filed a compliant certificate

in the present case, which defendant argues counsel failed to do. The State asserts that the

December 3, 2015, addition was not a scrivener’s error. However, the State has made no

response to defendant’s retroactivity argument.

¶ 16 It is well-settled that statutory amendments may be applied retroactively where they are

procedural in nature and do not impair a vested right. E.g., Allegis Realty Investors v. Novak,

(2006) (“[Statutory amendments] that are procedural may be applied

retroactively, while those that are substantive may not.”); see also People ex rel. Madigan v.

Petco Petroleum Corp.,

(2006) (finding that supreme court’s

retroactivity framework “applies equally to supreme court rules”). “Generally, a procedural

change in the law prescribes a method of enforcing rights or involves pleadings, evidence and

practice.” Schweickert v. AG Services of America, Inc.,

(2005).

¶ 17 The statutory amendment in the present case was the March 8, 2016, removal of the

clause limiting the certification requirement to those defendants moving to withdraw their guilty

pleas. The amendment was clearly procedural, as it dictated the practices to be followed by

defense attorneys in filing postplea motions. Moreover, far from impairing a vested right, the

amendment actually served to expand the protections afforded to defendants challenging their

5 sentences, by once again requiring counsel to follow the certification requirements. Accordingly,

we find that the amended Rule 604(d), effective March 8, 2016, may be applied retroactively.

¶ 18 Furthermore, we find that the amended Rule 604(d) should be applied retroactively. Our

supreme court has held that in determining whether a statutory amendment should apply

retroactively, courts should consider whether such application would have “inequitable

consequences.” Novak,

. Here, the inequitable consequences would result if the

statutory amendment was not applied retroactively. It would be inequitable if, for a 96-day

period, defendants who only wished to challenge their sentence were not afforded the

certification protections that they had been afforded since 1975. Indeed, the marked departure

from the history of Rule 604(d) and the swift correction 96 days later tends to indicate that the

December 3, 2015, amendment was nothing more than a scrivener’s error. Moreover despite that

amendment, defense counsel did file a Rule 604(d) certificate. Thus, retroactive application of

the March 8, 2016, amendment will not hamper our analysis in any way.

¶ 19 II. Strict Compliance With Rule 604(d)

¶ 20 It is well-settled that defense counsel must strictly comply with the certification

requirements of Rule 604(d). People v. Janes,

(1994); People v. Love,

(2008). The remedy for counsel’s failure to strictly comply with those

requirements is remand to the trial court for such compliance. Janes,

(“[T]he

remedy for failure to strictly comply with each of the provisions of Rule 604(d) is a remand to

the circuit court for the filing of a new motion to withdraw guilty plea or to reconsider sentence

and a new hearing on the motion.”).

¶ 21 In the present case, defense counsel asserted in his most recent certificate that he had

examined the report of proceedings of the guilty plea. As to defendant’s sentencing hearing,

6 however, counsel merely asserted that he was the original counsel at that hearing. Counsel did

not certify that he examined the report of proceedings of the sentencing hearing. Because Rule

604(d) requires counsel to certify that he has examined the transcript of the sentencing hearing

(see supra ¶ 11), counsel in the present case failed to strictly comply with the rule. See People v.

Steinmetz,

(1982). The State concedes this point.

¶ 22 The State argues, however, that remand is not necessary here, despite counsel’s failure to

strictly comply with Rule 604(d) in his most recent certificate. Specifically, the State posits that

under People v. Shirley,

(1998), remand is not required because defendant has

already been afforded a full and fair opportunity to present his postplea motion.

¶ 23 In Shirley, the defendant’s case had already been remanded once for Rule 604(d)

compliance.

. On remand, new defense counsel failed to file a Rule 604(d) certificate

with her motion to reduce sentence.

. However, previous counsel had filed a compliant

certificate before withdrawing, and new counsel filed a compliant certificate four days later.

. Our supreme court rejected the defendant’s argument that this failure to strictly comply

with the rule’s timing requirements warranted a second remand, finding: “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.”

. The court also declared: “Our holding in no way retreats from this court’s call for

strict compliance with our rules.”

.

¶ 24 This court has expressly held that Shirley does not stand for the blanket proposition that a

matter may only be remanded one time for compliance with Rule 604(d). People v. Hagerstrom,

. We wrote in Hagerstrom:

7 “The Shirley court explicitly premised its decision not to remand on the

defendant’s having already received ‘a full and fair’ hearing following the initial

remand, as well as on its finding that nothing on the record or in the Rule 604(d)

certificates indicated a need for further remands. [Citation.] In other words, the

holding in Shirley does not create a bar on successive Rule 604(d) remands when

appropriate.”

¶ 12 (quoting Shirley,

).

The State does not argue otherwise. Instead, Shirley stands for the proposition that where a

defendant receives a full and fair hearing, technical noncompliance with Rule 604(d) need not

give rise to multiple remands. For example, in Shirley, multiple substantively compliant

certificates were filed, but the timing of the certificates rendered them technically noncompliant.

Thus, it is the substantive compliance with the Rule 604(d) certification requirements that

ensures a full and fair postplea hearing. Love,

(“[W]here compliance with

the substantive requirements of Rule 604(d) is doubtful, so is the fairness of the proceedings.

Accordingly, multiple remands are appropriate.”).

¶ 25 The State contends that defendant did receive a full and fair postplea hearing in

September 2014, arguing that the certificate filed at that time was compliant. See supra ¶¶ 5-6.

However, this court held the September 2014 postplea hearing to be null and void. Evans,

. Specifically, we held that the trial court was without jurisdiction

to take any action prior to the filing of this court’s mandate. 2 It would be irrational for this court

to now find that defendant received a full and fair hearing before a court that lacked jurisdiction.

We therefore reject the State’s argument.

2 Because we decided defendant’s previous appeal on jurisdictional grounds, we did not address the substantive issue of whether the September 2014 certificate was compliant. Moreover, we would not have had the jurisdiction to do so. 8 ¶ 26 In fact, the State’s argument illustrates the fundamental difference between the present

case and Shirley. In Shirley, two unquestionably compliant certificates were filed, and a hearing

was properly held before a court of competent jurisdiction. Neither of those certificates,

however, was filed at the correct time. Thus, the issue in Shirley was one of timing. There our

supreme court held that, in the interest of judicial economy, a technical shortcoming such as the

mistimed filing of a Rule 604(d) certificate should be forgiven to avoid multiple remands, as

long as the defendant had received a full and fair hearing.

¶ 27 In the present case, the issue is not timing, but jurisdiction. Unlike in Shirley, no

compliant Rule 604(d) certificate has ever been filed in a court of competent jurisdiction. The

trial court’s lack of jurisdiction in September 2014 is not the sort of technical shortcoming that

was forgiven by the Shirley court.

¶ 28 In order for defendant to receive a full and fair hearing on his postplea motion, we are

compelled to again remand the matter to the trial court for new postplea proceedings in

compliance with Rule 604(d).

¶ 29 CONCLUSION

¶ 30 The judgment of the circuit court of Will County is vacated and the matter is remanded

with directions.

¶ 31 Vacated and remanded with directions.

¶ 32 JUSTICE SCHMIDT, dissenting.

¶ 33 Defendant, notwithstanding Rule 604(d) certificate errors, has had five hearings (one

which has been declared void because it occurred when the trial court lacked jurisdiction). Four

is enough. There is no reason to believe that in five appearances before the trial court that

defendant has not had a full and fair opportunity to present his motion for reduced sentencing.

9 See Shirley,

. This has become an exercise in form over substance. I would

affirm.

10