2023 IL App (1st) 171631
No. 1-17-1631
FIRST DIVISION
March 20, 2023
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
____________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 11 CR 19367
)
DAVID TAYLOR, )
) The Honorable
Defendant-Appellant. ) Alfredo Maldonado,
) Judge Presiding.
____________________________________________________________________________
JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
Justices Lavin and Coghlan concurred in the judgment and opinion.
OPINION
¶1 After he entered a negotiated guilty plea to two counts of attempted murder, the trial court
sentenced defendant to two concurrent sentences of 31 years’ imprisonment. Subsequently,
defendant filed a pro se motion to withdraw his guilty plea. His postplea counsel filed a certificate
pursuant to Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016). Defendant now challenges
whether his postplea counsel’s certification complied with Rule 604(d). We reverse and remand
for further proceedings.
¶2 BACKGROUND
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¶3 Defendant David Taylor was charged with multiple counts of attempted murder, armed
robbery, attempted armed robbery, and aggravated battery for shooting Oben Pilado and his father,
Jose Pilado, in September 2011. On May 6, 2014, defendant agreed to plead guilty to two counts
of attempted murder in exchange for a negotiated sentence of two concurrent sentences of 31 years’
imprisonment.
¶4 On June 17, 2014, defendant filed a timely pro se motion to withdraw his guilty plea,
arguing that his attorneys falsely informed him that, if he did not plead guilty, he would spend the
rest of his life in prison and could not appeal and that his guilty plea, consequently, was
involuntary. The trial court heard arguments from counsel and defendant regarding this motion but
failed to appoint new counsel to represent defendant. Defendant appealed the failure to appoint
new counsel, and we summarily remanded the case in March 2016 to comply with Illinois Supreme
Court Rule 401(a) (eff. July 1, 1984) and Rule 604(d) (eff. Mar. 8, 2016).
¶5 Upon remand, the trial court appointed an attorney from the public defender’s office, who
filed a certificate in September 2016 averring that he had complied with Rule 604(d). In December
2016, a different attorney from the public defender’s office took over defendant’s case.
¶6 Then, in March 2017, the new counsel filed a superseding Rule 604(d) certificate averring
that he had (1) consulted with defendant by mail and in person about his contentions of error
concerning his guilty plea, (2) examined the trial court file and transcripts of the plea hearing, and
(3) declined to amend defendant’s pro se motion to withdraw his plea because it adequately stated
defendant’s grounds for relief. On March 22, 2017, at a status hearing, the new public defender
stated that he was aware that prior counsel had filed a certificate but that his superseding certificate
followed his “own assessment” of defendant’s case.
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¶7 On June 14, 2017, the court held a hearing on defendant’s motion. Defendant’s new public
defender represented to the trial court that defendant was proceeding on his contention that his trial
counsel lied to him and told him that he could not appeal if he was convicted and that he would
spend the rest of his life in prison. Defendant testified in support of his contention. The State
presented the testimony of Assistant Public Defenders Wendy Steiner and Kyan Keenan,
defendant’s trial counsel. Both attorneys denied telling defendant that he could not appeal from a
jury verdict and that, if he were found guilty by a jury, he would spend the rest of his life in prison.
¶8 The trial court denied defendant’s motion, finding that Assistant Public Defender Steiner
credibly testified that she had explained defendant’s right to appeal and had not told him that he
could not exercise those rights if found guilty by a jury. The trial court also found Assistant Public
Defender Keenan credible in all respects and determined that neither counsel had threatened or
coerced defendant’s plea. The trial court found that defendant’s recollection of his meetings with
counsel, in which he testified his attorneys told him that he could not appeal a jury verdict and
that he would lose his case, was not credible.
¶9 ANALYSIS
¶ 10 Defendant argues that his postplea counsel’s Rule 604(d) certification did not strictly
comply with the rule because it failed to state that counsel had consulted with defendant about his
contentions of error in his sentence and that he reviewed the report of proceedings for his
sentencing hearing. In response, the State argues that his counsel’s certification complied in all
respects with Rule 604(d) and that counsel was not obligated to certify that he had consulted with
defendant on sentencing issues where defendant’s fully negotiated plea barred counsel from raising
sentencing issues as a basis for withdrawing the plea.
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¶ 11 Rule 604(d) “governs the procedure to be followed when a defendant wishes to appeal from
a judgment entered upon a guilty plea.” (Internal quotation marks omitted.) People v. Curtis, 2021
IL App (4th) 190658, ¶ 29. The rule 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. … The motion shall be in writing and shall state the grounds
therefor. … The motion shall be presented promptly to the trial judge by whom
the defendant was sentenced …. 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.” Ill. S. Ct. R. 604(d) (eff. Mar. 8, 2016).
¶ 12 It is well established that counsel must strictly comply with the certificate requirements of
Rule 604(d). See People v. Gorss, 2022 IL 126464, ¶ 19; People v. Janes,
158 Ill. 2d 27, 33 (1994).
However, “[t]he certificate need not recite word for word the verbiage of the rule.” People v. Wyatt,
305 Ill. App. 3d 291, 297 (1999). If counsel does not comply, we must remand the matter to the
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trial court “for the filing of a new Rule 604(d) certificate, for the filing of a new motion to withdraw
guilty plea or to reconsider sentence, and for a new hearing on the motion.” See Gorss, 2022 IL
126464, ¶ 31. “Whether counsel complied with Rule 604(d) is a legal question that we review
de novo.” Id. ¶ 10.
¶ 13 Before 2015, Rule 604(d) instructed that, when a pro se defendant filed a motion to
withdraw his guilty plea and before proceedings on the motion could commence, counsel must, in
pertinent part, “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. Dec. 11, 2014).
¶ 14 The language of the rule changed after our supreme court interpreted this particular clause
in People v. Tousignant, 2014 IL 115329. While the State argued that the use of the word “or” was
disjunctive and meant that an attorney did not need to certify consultation about both the sentence
and the plea, the supreme court disagreed. Id. ¶ 11. The supreme court found that the purpose of
the rule was “to enable the trial court to ensure that counsel has reviewed the defendant’s claim
and considered all relevant bases for the motion to withdraw the guilty plea or to reconsider the
sentence.” (Emphasis in original.) Id. ¶ 16. This would enable the trial court to correct possible
errors at an earlier opportunity. Id. ¶ 19. The court determined that the word “or” should be read
as “and,” requiring attorneys to certify consultation about both the guilty plea and the sentence. Id.
¶ 20.
¶ 15 After Tousignant, the supreme court amended Rule 604(d), effective December 3, 2015, to
read that counsel must consult with the defendant regarding the “contentions of error in the
sentence and the entry of the plea of guilty.” Ill. S. Ct. R. 604(d) (eff. Dec. 3, 2015).
¶ 16 Here, postplea counsel certified that he consulted with defendant about errors in the guilty
plea and reviewed the report of proceedings of the plea of guilty, but he did not certify that he
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consulted with defendant about alleged errors in his sentence or examined the report of proceedings
of the sentencing hearing. The State argues that remand is not necessary where the certificate filed
by postplea counsel contained all relevant information mandated for inclusion by that rule in fully
negotiated plea cases.
¶ 17 We find that postplea counsel did not comply with the certification requirements pursuant
to Rule 604(d). Our supreme court has determined that compliance with Rule 604(d) requires that
postplea counsel certify that he consulted with a defendant regarding his contentions of error both
in the entry of his plea and also in his sentence. Gorss, 2022 IL 126464, ¶ 26. In Gorss, our supreme
court addressed whether postplea counsel strictly complied with Rule 604(d) where the counsel
did not certify that he consulted with the defendant to ascertain his contentions of error with the
entry of the plea of guilty. The defendant entered an open plea of guilty to aggravated DUI and
was sentenced to 11 years’ imprisonment. Id. ¶ 4. On appeal, the supreme court held, “The
language of the rule is clear—counsel must certify that a consultation to ascertain the defendant’s
contentions of error as to both the sentence and entry of the guilty plea took place. This is to ensure
that the defendant’s interests are protected.” Id. ¶ 26 (citing People v. Easton, 2018 IL 122187,
¶ 32). “[W]here the language used [in a statute] is plain and unambiguous, [a reviewing court] may
not ‘depart from its terms’ or read into the rule exceptions, limitations, or conditions that conflict
with the drafters’ intent.” Id. ¶ 10 (citing Acme Markets, Inc. v. Callanan,
236 Ill. 2d 29, 38
(2009)).
¶ 18 We recognize that the defendant in Gorss entered an open plea of guilty, as opposed to
defendant in the instant case who entered a negotiated plea of guilty. In People v. Gillespie, 2017
IL App (1st) 152351, however, we addressed the factual situation present in the instant case. In
Gillespie, the defendant pled guilty pursuant to a negotiated plea and later moved to withdraw his
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plea. Counsel filed a Rule 604(d) certificate, stating, in relevant part, that he consulted with the
defendant about his contentions of error in the entry of the guilty plea. Id. ¶ 1. Following a hearing,
the trial court denied the motion to withdraw. Id. ¶ 4.
¶ 19 On appeal, we held that former Rule 604(d), which Tousignant had explained required
postplea counsel to certify counsel consulted with a defendant regarding contentions of error in
the entry of plea and sentence, along with the other requirements, applies equally to both open and
negotiated pleas. Id. ¶ 12. Relying on People v. Martell, 2015 IL App (2d) 141202, ¶ 9, which
rejected the proposition that Tousignant applied only to open pleas, we found “Tousignant and the
rule’s language are not limited to open pleas, and if our supreme court intends that it be so limited,
it will say so explicitly.” Gillespie, 2017 IL App (1st) 152351, ¶ 12. We also noted the rule’s
purpose, which was an attorney’s duty to consult with his or her client, regardless of whether the
consultation affects the content of the motion. Id. Regarding the State’s contention that if the plea
is negotiated, counsel will not be able to challenge the sentence through a written motion, we
recognized that Rule 604(d) “focuses on the attorney’s duty to consult with his or her client, and
that consultation has value even if it does not ultimately affect the content of the motion” and there
still exists a “concern that a fully negotiated plea might include an improper sentence is real.” Id.;
see Martell, 2015 IL App (2d) 141202, ¶ 9.
¶ 20 In addressing the State’s argument, neither party pointed to cases in which the Third
District found that postplea counsel’s failure to certify that he examined the report of proceedings
of the sentencing hearing does not render the Rule 604(d) certificate noncompliant. See People v.
Stefanski, 2019 IL App (3d) 160140, ¶¶ 22-25; People v. Jackson,
2018 IL App (3d) 170125, ¶ 49.
In both cases, the reviewing courts found that, because the defendant entered into a negotiated plea
of guilty, there was no sentencing hearing and, instead, the trial court accepted the defendant’s
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guilty plea and sentenced him to the agreed-upon sentence. Stefanski, 2019 IL App (3d) 160140,
¶ 23; Jackson,
2018 IL App (3d) 170125, ¶ 49. “Thus, by certifying that she had reviewed the
report of proceedings of the plea of guilty, counsel also certified that she had reviewed the
transcript of the court’s discussion of defendant’s sentence.” Jackson, 2018 IL App (3d) 170125,
¶ 49. However, the facts in the instant case are distinguishable where postplea counsel not only
failed to certify that she examined the report of the proceedings of the sentencing hearing, but
counsel also failed to certify that she consulted with defendant to ascertain defendant’s contentions
of error as to his sentence.
¶ 21 Accordingly, we follow Gillespie and reject the State’s argument that the Rule 604(d)
requirement that postplea counsel certify that counsel consulted with the defendant regarding the
entry of the plea of guilty and sentence applies only to open pleas. Postplea counsel did not file a
substantively compliant certificate. A second remand to the trial court for de novo postplea
proceedings and compliance with Rule 604(d) is thus necessary. See People v. Hagerstrom, 2016
IL App (3d) 140559, ¶ 13 (finding that a second remand for compliance with Rule 604(d)
admonishments is permissible).
¶ 22 CONCLUSION
¶ 23 We vacate the trial court’s judgment denying defendant’s motion to withdraw his guilty
plea and remand for (1) the filing of a new postplea motion (if defendant so wishes), (2) a new
hearing on defendant’s postplea motion, and (3) compliance with the requirements of Rule 604(d).
¶ 24 Vacated and remanded.
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People v. Taylor, 2023 IL App (1st) 171631
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 11-CR-
19367; the Hon. Alfredo Maldonado, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, Manuel S. Serritos, and Linda
for Olthoff, of State Appellate Defender’s Office, of Chicago, for
Appellant: appellant.
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Douglas P. Harvath, Janet C. Mahoney, and David H.
Appellee: Iskowich, Assistant State’s Attorneys, of counsel), for the
People.
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