Opinion filed February 22, 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. 3-16-0183 v. ) Circuit No. 13-CF-777 ) JUAN M. GONZALEZ, ) Honorable ) Sarah F. Jones, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE O’BRIEN delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justice Lytton concurred in the judgment and opinion. _____________________________________________________________________________

OPINION

¶1 Defendant, Juan M. Gonzalez, appeals from the denial of his motion to reconsider

sentence, arguing that a new Illinois Supreme Court Rule 604(d) certificate needed to be filed

and new postplea proceedings held, as the filed certificate was not compliant with the amended

rule. We vacate the trial court’s decision on the motion to reconsider sentence and remand for

new postplea proceedings. ¶2 FACTS

¶3 Defendant entered a blind guilty plea to two counts of predatory criminal sexual assault

of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)). The factual basis established that, on March

17, 2013, defendant was 42 years old and was consuming alcohol at a friend’s house. The victim,

E.L., was the four-year-old daughter of the friend. Defendant decided to leave to buy more

alcohol and E.L. went with him. Defendant stopped at his house to use the restroom. While at his

house, defendant put his penis and mouth on E.L.’s vagina. The judge accepted the plea.

¶4 Defendant was sentenced to 20 years’ imprisonment on each count, to be served

consecutively. Defendant filed a motion to reconsider sentence, which was denied. Defendant

appealed. This court remanded the matter for strict compliance with Supreme Court Rule 604(d).

People v. Gonzalez, No. 3-13-0919 (June 19, 2015) (dispositional order).

¶5 On remand, a new motion to reconsider and Rule 604(d) certificate were filed on

September 23, 2015. The Rule 604(d) certificate stated counsel had:

“1. Consulted with the defendant in person to ascertain defendant’s

contentions of error in the sentence and the entry of the plea of guilty;

2. Examined the trial court file and report of proceedings of the plea of

guilty;

3. Made any amendments to the motion necessary for adequate

presentation of any defects in those proceedings.”

A hearing on the motion was held on April 8, 2015, and the court denied the motion to

reconsider.

2 ¶6 ANALYSIS

¶7 On appeal, defendant argues that counsel has failed to strictly comply with the

certification requirements of Rule 604(d) and requests that we remand the case for new postplea

proceedings. 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. On September 23, 2015—the

date defense counsel filed the motion to reconsider sentence and certificate—Rule 604(d) read,

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.” (Emphasis added.) Ill. S. Ct. R. 604(d) (eff.

Dec. 11, 2014).

¶8 Prior to the hearing on the motion to reconsider, Rule 604(d) was amended. Therefore, on

the date of the hearing on the motion to reconsider, Rule 604(d) read:

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

attorney has consulted with the defendant either by phone, mail, electronic means,

or in person to ascertain defendant’s contentions 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

3 presentation of any defects in those proceedings.” (Emphasis added.) Ill. S. Ct. R.

604(d) (eff. Mar. 8, 2016).

In other words, at the time the motion to reconsider was heard, Rule 604(d) required the

attorney’s certificate to aver that the attorney had examined the report of proceedings from both

the plea of guilty and the sentencing hearing. At the time the motion was filed, Rule 604(d) only

required the certificate to state that the attorney had examined the report of proceedings from the

plea of guilty. The certificate the defense attorney filed only averred that she had reviewed the

report of proceedings from the guilty plea, not from the sentencing hearing. Therefore, the

defense attorney’s certificate complied with the version of Rule 604(d) in place at the time the

motion was filed, but not at the time the motion was heard and ruled upon.

¶9 Defendant argues that “[b]y making the amended version of the rule ‘eff[ective]

immediately’ on March 8, 2016, the Illinois Supreme Court indicated its intent that the amended

version of the rule apply immediately to all cases pending disposition in the circuit court.” That

is to say the amended version of Rule 604(d), defendant states, should be applied retroactively.

¶ 10 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 the 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).

4 ¶ 11 As stated above, the Rule 604(d) amendment at issue here added that the attorney had to

aver that he or she had examined the report of proceedings from the sentencing hearing. The

amendment was clearly procedural, as it dictated the practices to be followed by defense

attorneys in filing their Rule 604(d) certificate. Moreover, far from impairing a vested right, the

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

sentences by requiring counsel to examine the report of proceedings from the sentencing hearing.

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

retroactively.

¶ 12 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, applying the amendment retroactively would not

have inequitable consequences, but would provide more protection to defendant without

requiring too much work on the part of the attorney.

¶ 13 Because we find that the Rule 604(d) amendment applies retroactively, we next turn to

the question of whether remand is necessary. Rule 604(d) demands strict compliance with each

of the elements of the certification requirement. People v. Janes,

(1994). The

remedy for failing to strictly comply with the requirements is remand to the trial court for new

postplea proceedings.

(“[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.”).

¶ 14 Our recent decision in People v. Evans,

, is particularly

applicable in this case. In Evans, defense counsel filed a motion to reconsider sentence, but did

5 not file a Rule 604(d) certificate because the version of Rule 604(d) in effect at the time only

required such a certificate “ ‘[i]f a motion to withdraw the plea of guilty is to be filed.’ ”

¶ 14

(quoting Ill. S. Ct. R. 604(d) (eff. Dec. 3, 2015)). On appeal, we agreed with the defendant that

the rule should be applied retroactively, thus requiring remand for defense counsel to file a Rule

604(d) certificate. Id. ¶ 15. In doing so, we noted that Rule 604(d) is a procedural law, could be

applied retroactively, and, in fact, should be applied retroactively as equity favored more

protection for the defendant. Id. ¶¶ 16-18. Further, we stated that remand was required because

counsel did not strictly comply with the rule, as he did not certify that he had examined the

report of proceedings from the sentencing hearing. Id. ¶ 21.

¶ 15 Here, as in Evans, defense counsel asserted in her Rule 604(d) certificate that she had

examined the report of proceedings of the guilty plea. Defense counsel did not certify that she

had examined the report of proceedings of the sentencing hearing. Because Rule 604(d) requires

counsel to certify that she has examined the transcript of the sentencing hearing, counsel in the

present case failed to strictly comply with the rule. See People v. Steinmetz,

(1982). Therefore, remand is necessary for new postplea proceedings and strict compliance

with the rule.

¶ 16 In coming to this conclusion, we reject the State’s argument that remand is not required.

Specifically, the State argues, like it did in Evans, that under People v. Shirley,

(1998), remand is unnecessary because defendant has already been afforded a full and fair

opportunity to present his postplea motion. In Evans, we rejected the State’s reliance on Shirley

for this proposition. Evans,

. In doing so, we noted that

“[t]his 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).”

¶ 24 (citing People

6 v. Hagerstrom,

). Instead, Shirley stands for the proposition

that multiple remands for compliance with Rule 604(d) are not necessary where a defendant

received a full and fair hearing.

We held that, unlike in Shirley, where the only issue was the

timeliness of the filing of an otherwise compliant 604(d) certificate, the defendant in Evans had

not received a full and fair hearing, and, therefore, remand for strict compliance with Rule 604(d)

was required. Id. ¶¶ 27-28.

¶ 17 Here, counsel has not averred that she examined the transcript of the sentencing hearing,

which provided the basis of defendant’s motion. See Steinmetz,

(“[T]he

concern [of Rule 604(d)] has to be that an attorney make a subsequent thorough and

dispassionate review of the record to assure that the defendant’s rights were safeguarded. To

assume from the mere fact of continuous representation a knowledge of the record trammels on

that policy. It ignores not only the reality that a vast amount of time often separates hearings but

also that defense attorneys often represent numerous defendants with cases far too complex to

commit to memory.”). Because defendant has not received 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).

¶ 18 Lastly, defendant argues that his sentence was excessive. As we remand for new postplea

proceedings, we do not reach this issue.

¶ 19 CONCLUSION

¶ 20 The judgment of the circuit court of Will County is vacated and remanded with

instructions.

¶ 21 Vacated and remanded with instructions.

7