No. 2--03--0681

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE KAPALA delivered the opinion of the court:

On October 10, 2001, defendant, Antwon L. Dismuke, entered into negotiated pleaagreements and pleaded guilty to two charges of delivery of a controlled substance (720 ILCS570/401(d) (West 2000)). As agreed, he was sentenced to four years' imprisonment for eachconviction, to run consecutively. On November 9, 2001, defendant filed a pro se motion to withdrawhis guilty plea on one conviction, and with the assistance of appointed counsel, subsequently amendedhis motion. The trial court granted the motion to withdraw, but ordered the pleas on both convictionsto be withdrawn. Upon reconsideration after a hearing, however, the court denied defendant'smotion, because the motion did not include any affidavits as to those facts upon which the motionwas based but which were outside the record. Defendant then filed an amended motion, to whichdefense counsel attached a certificate pursuant to Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)). On May 23, 2003, the court denied the motion, and defendant appeals. Defendant argues that thetrial court's order should be reversed because defense counsel's Rule 604(d) certificate was deficient,and because defense counsel was ineffective. Because the Rule 604(d) certificate was deficient, thetrial court's order is reversed, and this cause is remanded.

Defense counsel's signed Rule 604(d) certificate reads as follows:

"I, JOHN A. BARSANTI, appointed counsel for the Defendant hereby state as follows:

1. I have consulted with the Defendant;

2. I have examined the Court file, and;

3. I have reviewed the report of proceedings."

Defendant argues that the certificate was deficient for three reasons. First, it omits any mention ofmaking any amendments to defendant's motion that were necessary to adequately present any defectsin the proceedings. Second, although it states that defense counsel consulted with defendant, it doesnot state the subject of the consultation. Third, although it states that defense counsel examined thecourt file and the report of proceedings, it does not specify that counsel reviewed the report ofproceedings of the guilty plea.

When a defendant moves to withdraw a negotiated guilty plea, Rule 604(d) requires defensecounsel to

"file with the trial court a certificate stating that the attorney has consulted with the defendanteither by mail or in person to ascertain defendant's contentions of error in the sentence or theentry of the plea of guilty, has examined the trial court file and report of proceedings of theplea of guilty, and has made any amendments to the motion necessary for adequatepresentation of any defects in those proceedings." 188 Ill. 2d R. 604(d).

Such certification assures the trial court that the defense counsel has reviewed the defendant's claimand has considered all of the relevant bases for a motion to withdraw a guilty plea. People v. Linder,186 Ill. 2d 67, 69 (1999). When a defendant has not waived counsel, defense counsel's filing of aRule 604(d) certificate is a condition precedent to a hearing on the defendant's motion to withdrawa plea of guilty and to vacate the judgment. People v. Dickerson, 212 Ill. App. 3d 168, 171 (1991). Consequently, strict compliance with Rule 604(d) is required. Linder, 186 Ill. 2d at 69; People v.Shirley, 181 Ill. 2d 359, 371 (1998); People v. Janes, 158 Ill. 2d 27, 32 (1994). Compliance withsupreme court rules is reviewed de novo. People v. Hall, 198 Ill. 2d 173, 177 (2001).

In this case, defense counsel did not strictly comply with Rule 604(d), because the certificatewas deficient on its face. Defense counsel failed to certify that he made amendments to the motionthat were necessary for the adequate presentation of any defects in the proceedings. This omissionviolated the clear language of the rule, and in the absence of such a certification, the presumptionmust be that counsel failed to make the requisite amendments. Indeed, counsel had good reason notto certify that the necessary amendments had been made to the motion, because he failed to attachthe documents containing the facts upon which the motion was based. Failing to attach thosenecessary documents does not make for an adequate presentation of the defects in the proceedings. Furthermore, this omission causes this court to be unsure whether defense counsel considered all ofthe relevant bases for defendant's motion to withdraw his guilty plea. See Linder, 186 Ill. 2d at 69.

Although this court has held that the attorney's "certificate need not recite word for word theverbiage of the rule," the certificate must give some indication that counsel performed the dutiesrequired under Rule 604(d). People v. Wyatt, 305 Ill. App. 3d 291, 297 (1999). Failure to do socauses a deficiency in the certificate.

In this case, the State nevertheless argues that, although the certificate did not refer to anyamendments, the motion itself demonstrates actual compliance with Rule 604(d) by referencingdocuments containing the facts upon which the motion was based and by stating that they wereattached, even though they were not. Citing a Fourth District case, People v. Starks, 344 Ill. App.3d 766 (2003), appeal denied, 208 Ill. 2d 553 (2004), the State posits that, although a certificate doesnot state that counsel performed one of the tasks required by Rule 604(d), an attorney complies withthe certificate requirement when the record demonstrates counsel's compliance. This court refusesto subscribe to the State's proposition, because it is contrary to the "strict compliance" mandate ofthe supreme court.

In Starks, 344 Ill. App. 3d at 769-70, the Fourth District found that a review of the completerecord demonstrated that the attorney complied with the requirements of Rule 604(d), even thoughthe attorney failed to certify that he had examined the trial court file and the report of proceedingsof the guilty plea. The record showed that the attorney received the transcripts, which were used bythe State to cross-examine the defendant and were admitted into evidence at a hearing, during whichthe attorney asked questions that showed a knowledge of the transcripts. Starks, 344 Ill. App. 3dat 769-70. Based on the record, the court found strict compliance with Rule 604(d), reasoning thatif the record demonstrates that the purpose of Rule 604(d) is satisfied, remand for a word change isa waste of judicial resources. Starks, 344 Ill. App. 3d at 769.

To the contrary, a waste of judicial resources occurs when, as a result of an attorney'sdeficient certificate, an appellate court must scour through the record to determine whether thatattorney actually complied with Rule 604(d), even though strict compliance with that rule'scertification requirements would prevent such waste. Rule 604(d) sets forth the duties of a defensecounsel and provides a simple, straightforward, and mandatory procedure designed to insure thatthose duties are performed. Dickerson, 212 Ill. App. 3d at 171. The supreme court rules are notsuggestions but, rather, rules of procedure, and it is incumbent upon counsel and the courts to followthem. People v. Wilk, 124 Ill. 2d 93, 103 (1988). Moreover, strictly complying with the certificaterequirement will not place an onerous burden on a defense counsel. Dickerson, 212 Ill. App. 3d at171. Even the Fourth District acknowledges that the trial courts can help to ensure that defenseattorneys comply with the certificate requirement, and that "it is also in the interest of the State toensure that strict compliance is observed as the State also has an interest in avoiding a failure tocomply with Rule 604(d)." Starks, 344 Ill. App. 3d at 770. Strict compliance eliminates unnecessaryappeals (Dickerson, 212 Ill. App. 3d at 171) and controversies concerning whether the recorddemonstrates substantial compliance (People v. Ritchie, 258 Ill. App. 3d 164, 167 (1994)). Therefore, requiring strict compliance with the simple certification requirements of Rule 604(d) is inthe best interests of the parties and the judicial system.

This court repeatedly has insisted upon strict compliance with Rule 604(d) (Ritchie, 258 Ill.App. 3d at 166), and there is no reason to relax this standard now. Consequently, we hold thatdefense counsel in this case filed a deficient Rule 604(d) certificate, because the certificate failed tostate that the attorney made any necessary amendments to the motion.

We hold further that the certificate is also deficient for the second and third reasons advancedby defendant. In Ritchie, the certificate at issue included a statement that the attorney wrote to andspoke with the defendant. However, in finding that the certificate was deficient, this court noted that,"[a]lthough the affidavit states that [the attorney] communicated with defendant, it does not state thatthe attorney spoke with defendant concerning his contentions of error." Ritchie, 258 Ill. App. 3d at166. The certificate filed in this case is similarly deficient. In his certificate, defense counsel aversthat he has "consulted with defendant," but he does not indicate the subject matter of thisconsultation. In People v. Mast, 305 Ill. App. 3d 727, 734-35 (1999), this court held that anattorney's certification was deficient because it failed to include a statement showing that the attorneyhad examined the transcript of the guilty plea hearing, as required by the rule. The certificate in thatcase stated that the attorney had " 'examined the trial court file and report of proceedings of thesentencing hearing.' " Mast, 305 Ill. App. 3d at 734. The State, asserting that strict compliance "'does not necessarily mean literalistic compliance which ignores the reality of the situation at bar,' "argued that the certification satisfied the purpose of Rule 604(d), because the attorney examined thetrial court file, which contained the transcripts of the guilty plea hearing, and because the attorney hadrepresented the defendant at that hearing. Mast, 305 Ill. App. 3d at 733, 735. The court rejected thisargument, deciding instead to follow the policy made emphatically clear by the supreme court: thatstrict compliance with each of the provisions set forth in Rule 604(d) is required. Mast, 305 Ill. App.3d at 735. Like the certificate filed in Mast, the certificate filed in this case is deficient because itcontains no statement that the report of proceedings reviewed was of the plea hearing.

Although the broad language of the certificate can be read to imply that defense counsel didconsult with the defendant to ascertain defendant's contentions of error and did examine the reportof proceedings of the guilty plea, we refuse to make such implications, in light of the need for strictcompliance with the rule. Ritchie, 258 Ill. App. 3d at 166. The trial court's denial of defendant'smotion, therefore, must be reversed. Linder, 186 Ill. 2d at 69. The remedy for the failure to strictlycomply with Rule 604(d) is a remand to the circuit court for the filing of a new motion and for a newhearing on the motion. Janes, 158 Ill. 2d at 33; Ritchie, 258 Ill. App. 3d at 167.

This cause is remanded solely on the ground that the certification was deficient. As a result,this court need not address defendant's arguments regarding ineffective assistance of counsel.

The order of the circuit court of Kane County is reversed, and this cause is remanded.

Reversed and remanded.

BOWMAN and HUTCHINSON, JJ., concur.