No. 2-15-0718 Opinion filed October 6, 2017 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 13-CF-1552 ) ANDRE BRIDGES, ) Honorable ) Daniel B. Shanes, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Zenoff concurred in the judgment and opinion.

OPINION

¶1 Defendant, Andre Bridges, entered a negotiated plea of guilty in the circuit court of Lake

County to a single count of aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West

2012)). In exchange for defendant’s plea, he was sentenced to an 18-year prison term and the

State dismissed charges of first-degree murder (720 ILCS 5/9-1 (West 2012)). Defendant

subsequently moved, pro se, to withdraw his guilty plea. The trial court appointed counsel, who

filed an amended motion. The trial court denied the amended motion. Defendant argues on

appeal that the proceedings on the amended motion did not comply with Illinois Supreme Court

Rule 604(d) (eff. July 1, 2017). Defendant notes that counsel failed to support the amended

motion with an affidavit as to matters not based on the record. Furthermore, according to

defendant, the hearing on the amended motion was perfunctory and was improperly held in his

absence. We vacate and remand for proceedings in compliance with Rule 604(d).

¶2 The first-degree murder charges against defendant arose from the shooting death of

James Myles. As the factual basis for defendant’s plea of guilty to the less serious charge of

aggravated battery with a firearm, it was stipulated that “on June 1st, 2013 after a confrontation

in an alley in North Chicago, the defendant discharged a firearm in the direction of James Miles

[sic] and in fact struck James Miles [sic] about the body.” In his pro se motion to withdraw his

plea, defendant asserted that he “had inadequate representation by counsel” and “was not

mentally compentent [sic] to enter a plea.” The motion was supported by an affidavit, which

added that defendant’s plea “was the result of coercion (force or threats).” The amended motion

filed by counsel elaborated on these claims, alleging as follows:

“g. [Defendant’s] plea was made under duress.

h. While this cause was pending, acts of violence were perpetrated upon

[defendant’s] mother.

i. Two days after the victim in this case was killed, but prior to

[defendant’s] arrest, [his mother’s] home was shot at. The bullets landed in the

couch and near a bed; if [defendant’s mother] or another family member had been

present, they would have been hit by the bullets.

ii. After [defendant’s] arrest, the same individuals [his mother] believes

were responsible for the shooting loitered outside [her] workplace; [she] required

a police escort home.

iii. [Defendant] learned of these incidents directly from his mother.

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iv. However, through discussions with fellow inmates in the Lake County

Jail, [defendant] learned that the violence and threats of further violence were

targeted toward [defendant], and were intended to send a message to [defendant].

i. [Defendant] entered his plea of guilty in an objectively reasonable attempt to

prevent future violence against his mother. Thus his plea was involuntary.

j. Further, [defendant] was not properly medicated at the time of his plea, and

therefore, his plea was not intelligently made.

k. Due to inappropriate medication, [defendant] did not intelligently give up his

right to trial.

l. [Defendant] is diagnosed as Bipolar and suffers from ADHD.

m. His doctor prescribed Adderall, Trileptal, Seroquel (Quetiapine), and

Dextroamphetamine.

n. While in the Lake County Jail, [defendant] was given Quetiapine, but was not

provided with his other mediations [sic].

o. While incarcerated in LCJ, [defendant] suffered from anxiety, mood swings,

tremors, and unusually bad dreams.

p. [Defendant] complained to the medical staff at the jail that the medications

were not working for him, but his medication did not change.

q. [Defendant] believes that this change in medication affected his mental

capabilities while in custody.

r. Based upon the insufficient treatment of [defendant’s] symptoms, [defendant]

did not intelligently give up his right to trial. His judgment was clouded and he could not

reach a reasoned decision.”

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The amended motion was not supported by an affidavit. However, counsel filed a certificate of

compliance with Rule 604(d).

¶3 The State initially argued that defendant’s pro se motion was not timely filed and that the

trial court lacked jurisdiction. At a status hearing on April 30, 2015, the State conceded that the

pro se motion had been timely filed and that the amended motion was therefore properly before

the trial court for a decision on the merits. The trial court asked whether the case should be

continued for argument on the substantive issues raised in the amended motion. Defense counsel

responded that the amended motion “laid [the substantive issues] out.” She added: “I could

have [defendant] testify to that. I don’t know if there is any issues about any of the factual issues

made by [defendant].” The trial court then asked the prosecutor, “Are you contesting any of the

factual issues or is this a legal issue?” The prosecutor responded, “your Honor took the plea

from the Defendant and inquired of the Defendant if he understands everything and if there has

been any threats, the defendant indicated no.” The parties indicated that they had no evidence to

present, and the trial court continued the matter to June 16, 2015, for a ruling on the motion.

¶4 Defendant was not present at the April 30, 2015, status hearing. Nor was he present on

June 16, 2015, when the trial court announced its decision after the State and defense counsel

declined an invitation to present any additional argument. With respect to the medications that

defendant alleged he was not receiving, the trial court noted that “there’s nothing in the record to

show that the defendant needed to be prescribed any of these other medications in order to make

a voluntary and intelligent waiver of his rights to trial.” The trial court noted that defendant

appeared to be intelligent and “cognizant of all the issues that were being discussed,” not only

when he entered his plea “but on every date on which he appeared before the Court.” The trial

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court also found that the alleged harassment of defendant’s mother did not render his plea

involuntary.

¶5 Rule 604(d) provides, in pertinent part, as follows:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the

defendant, within 30 days of the date on which sentence is imposed, files in the trial court

a motion to reconsider the sentence, if only the sentence is being challenged, or, if the

plea is being challenged, a motion to withdraw the plea of guilty and vacate the

judgment.

No appeal shall be taken upon a negotiated plea of guilty challenging the sentence

as excessive unless the defendant, within 30 days of the imposition of sentence, files a

motion to withdraw the plea of guilty and vacate the judgment. ***

The motion shall be in writing and shall state the grounds therefor. When the

motion is based on facts that do not appear of record it shall be supported by affidavit

***. *** The trial court shall then determine whether the defendant is represented by

counsel, and if the defendant is indigent and desires counsel, the trial court shall appoint

counsel.

*** 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 presentation of any defects in those

proceedings.

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The motion shall be heard promptly, and if allowed, the trial court shall modify

the sentence or vacate the judgment and permit the defendant to withdraw the plea of

guilty and plead anew. If the motion is denied, a notice of appeal from the judgment and

sentence shall be filed within the time allowed in Rule 606, measured from the date of

entry of the order denying the motion. Upon appeal any issue not raised by the defendant

in the motion to reconsider the sentence or withdraw the plea of guilty and vacate the

judgment shall be deemed waived.” Ill. S. Ct. R. 604(d) (eff. July 1, 2017).

¶6 It is well established that strict compliance with Rule 604(d) is required. People v. Janes,

(1994). Where the defendant fails to file the proper motion, the appeal must be

dismissed. People v. Wilk,

(1988). However, the proper remedy for failure to

strictly comply with Rule 604(d)’s other requirements is “a remand to the circuit court for the

[opportunity to file] a new motion to withdraw guilty plea or to reconsider sentence and a new

hearing on the motion.” Janes,

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1 Defendant occasionally refers to the principles governing claims of ineffective

assistance of counsel. Such claims are evaluated under Strickland v. Washington,

(1984), which requires a showing that counsel’s performance “fell below an objective

standard of reasonableness” and that the deficient performance was prejudicial in that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Seizing on the references to Strickland, the State contends that our

decision “will turn on whether counsel’s acts or failure to act, as described by defendant, were

the result of counsel’s deficient performance which prejudiced defendant under Strickland.” We

disagree. The remedy prescribed by Janes for failure to strictly comply with Rule 604(d) does

not depend on a showing of ineffective assistance of counsel. See People v. Tejada-Soto, 2012

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¶7 There is no dispute that defendant filed the requisite motion to withdraw his plea, so

Wilk’s dismissal rule does not apply. We thus consider whether there was a failure to strictly

comply with other aspects of the rule, necessitating a remand pursuant to Janes.

¶8 As seen, where the defendant moves to withdraw his or her plea, Rule 604(d) requires

counsel to certify that he or she has made any amendments to the defendant’s motion that are

necessary for adequate presentation of any defects in the proceedings relating to the defendant’s

plea. Although counsel here filed a facially valid certificate of compliance, we may consult the

record to determine whether she actually fulfilled her obligations under Rule 604(d). For

instance, in People v. Little,

(2003), the court’s conclusion that counsel had

not strictly complied with Rule 604(d) was based, in part, on the record’s refutation of counsel’s

certificate of compliance. In Little, counsel certified that he had examined the report of

proceedings of the defendant’s guilty plea. However, counsel filed the certificate before the

report of proceedings had been prepared and filed.

¶9 Here, the record refutes counsel’s certification that she made any amendments to the

motion necessary for adequate presentation of any defects in the plea proceedings. Counsel

added new, detailed allegations to defendant’s motion to withdraw his plea, but those allegations

were not supported by the record. As seen, under Rule 604(d), facts that do not appear of record

must be supported by an affidavit. Thus, to fulfill her duty to amend defendant’s motion,

counsel had to attach an affidavit substantiating the new allegations. See People v. Dismuke,

(2005) (where counsel failed to attach documents containing facts upon

IL App (2d) 110188, ¶ 16 (describing circumstances when Strickland does apply to postplea

proceedings). The dispositive question is simply whether the proceedings below were in strict

compliance with Rule 604(d).

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which motion was based, motion did not adequately present defects in the relevant proceedings).

Counsel not only failed to attach an affidavit, but also failed to present defendant’s testimony or

any other evidence in support of defendant’s motion. The trial court thus had no basis for

deciding the motion other than its own recollection of defendant’s demeanor during the plea

proceedings.

¶ 10 We also conclude that the hearing on the motion was inadequate to satisfy Rule 604(d)’s

strict-compliance standard. A hearing on a motion to withdraw a defendant’s guilty plea must be

more than a charade performed only to allow an appeal to proceed. See Tejada-Soto,

(hearing on remand pursuant to Janes for compliance with Rule 604(d)).

People v. Keele,

(1991), is instructive. In Keele, the motion to withdraw

stated that the defendant’s plea was involuntary, but the motion lacked specificity. The

defendant’s attorney presented no evidence or argument on the motion and, indeed, asked that

the motion be denied. The Keele court observed as follows:

“Our understanding is that Rule 604(d) contemplates more than the mere

pro forma filing of a motion as occurred here. Rule 604(d) was designed to eliminate

needless trips to the appellate court and to give the trial court an opportunity to consider

alleged errors and to make a record for the appellate court to consider on review in these

cases where defendants’ claims are disallowed. [Citation.] The rule ensures that before a

criminal appeal can be taken from a guilty plea, the trial judge who accepted the plea and

imposed sentence be given the opportunity, at a time when witnesses are still available

and memories are fresh, to hear the allegations of improprieties that took place outside

the official proceedings and dehors the record but nevertheless were unwittingly given

sanction in the courtroom. [Citation.] Such a hearing allows for the trial court to

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immediately correct any improper conduct or any errors which may have produced a

guilty plea. [Citations.] Naturally, the trial court is the place for fact-finding to occur

and for a record to be made concerning the factual basis upon which a defendant relies

for the grounds to withdraw a guilty plea. [Citation.] For these reasons, a relaxed

standard of compliance with Rule 604(d) can no longer be accepted. [Citation.] Strict

adherence to the rule allows courts of review to ascertain the integrity of the parties’

assertions of fact and law, all of which is essential to the expeditious and accurate

determination of appeals. [Citation.]” Id. at 902-03.

¶ 11 The Keele court concluded that “Rule 604(d) does not contemplate the perfunctory type

of motion and hearing that occurred in this instance.” Id. at 903. Unlike in Keele, counsel in this

case prepared a detailed amended motion to withdraw defendant’s plea and did not explicitly

concede that the motion should be denied. However, counsel’s failure to offer any argument or

evidence in support of the motion functioned as a concession that the motion was without merit.

Thus, the hearing in this case served little purpose other than to clear a procedural hurdle to this

appeal. It is noteworthy that defendant was not even present at the hearing. “While a defendant

has no absolute right to be present at a hearing on a motion to vacate a guilty plea, if the motion

alleges facts outside the record or raises issues which may not be resolved without an evidentiary

hearing, defendant should be present.” People v. Barnes,

(1991).

¶ 12 For the foregoing reasons, we vacate the denial of defendant’s amended motion to

withdraw his plea and we remand the cause to the circuit court of Lake County for “(1) the filing

of a [valid] Rule 604(d) certificate; (2) the opportunity to file a new motion to withdraw the

guilty plea and/or reconsider the sentence, if counsel concludes that a new motion is necessary;

and (3) a new motion hearing.” People v. Lindsay,

(2011).

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¶ 13 Vacated and remanded.

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