THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT E. HAMPTON, Defendant-Appellant. | ) ) ) ) ) ) ) ) | Appeal from Circuit Court of McLean County No. 00CF407
Michael G. Prall, Judge Presiding. |
JUSTICE TURNER delivered the opinion of the court:
In April 2000, a grand jury indicted defendant, RobertE. Hampton, on one count of burglary and one count of theft over$300. Defendant was later indicted on one count of aggravatedrobbery. In August 2000, defendant entered into an open guiltyplea on the charge of burglary, and the State agreed to drop theremaining counts. In October 2000, the trial court sentenceddefendant to 20 years in prison as a Class X offender. InNovember 2000, defendant filed a motion to reconsider his sentence, which the trial court denied.
On appeal, defendant argues (1) his cause must beremanded because his attorney's Rule 604(d) (188 Ill. 2d R.604(d)) certificate failed to state he examined the report ofproceedings of the guilty plea; and (2) his prison sentence didnot accord with his rehabilitative potential and was improperlydisparate to his codefendant's sentence. We reverse and remand.
I. BACKGROUND
In April 2000, a grand jury indicted defendant on onecount of burglary (720 ILCS 5/19-1(a) (West 2000)), alleging heknowingly and without authority entered a Freedom Oil gas stationwith the intent to commit therein a theft. The grand jury alsoindicted defendant on one count of theft over $300 (720 ILCS5/16-1(a)(4) (West 2000)), alleging he knowingly obtained controlover stolen property, United States currency and prepaid callingcards belonging to Freedom Oil. In July 2000, a grand juryindicted defendant on one count of aggravated robbery (720 ILCS5/18-5(a) (West 2000)), alleging he knowingly indicated by hisaction to Loriann Hursey that he had a firearm and took propertyfrom her presence by threatening the imminent use of force.
In August 2000, the State filed a motion to enhancesentence under section 5-5-3(c)(8) of the Unified Code of Corrections (Code) (730 ILCS 5/5-5-3(c)(8) (West 2000)), statingdefendant had prior felony convictions of armed robbery in 1991,a Class X felony, and possession of a controlled substance withthe intent to deliver in 1989, a Class 2 felony. Upon conviction, the State asked the trial court to advise defendant that hewould be sentenced as a Class X offender pursuant to section 5-5-3(c)(8) of the Code.
Defendant entered an open guilty plea to the charge ofburglary, and the State agreed to drop the remaining counts atthe sentencing hearing. The trial court advised defendant of thepossible 6- to 30-year prison term as a Class X offender. TheState's factual basis indicated two black males wearing ski masksentered the Freedom Oil gas station in Bloomington on April 4,2000, at about 10:50 p.m. The store clerk indicated "the tallerindividual," believed to be a codefendant, had his hand in hispocket as if he had a weapon. Two men matching the descriptionwere later found in Chenoa with property stolen from the gasstation. The court found defendant knowingly and voluntarilyentered his guilty plea.
In October 2000, the State dropped the remaining twocounts. Thereafter, the trial court sentenced defendant to 20years in prison on the burglary count as a Class X offenderpursuant to section 5-5-3(c)(8) of the Code. The court found nostatutory factors in mitigation. In aggravation, the court noteddefendant's prior criminal history, age, the need to deterothers, and the protection of the public. In November 2000,defendant filed a motion to reconsider sentence, asserting hissentence was excessive and the trial court failed to adequatelyconsider his rehabilitative potential and the support from hisfiancée and her children. In April 2001, defendant's attorneyfiled a certificate pursuant to Supreme Court Rule 604(d) (188Ill. 2d R. 604(d)) in conjunction with defendant's motion. Thetrial court denied defendant's motion to reconsider. This appealfollowed.
II. ANALYSIS
Defendant argues defense counsel's certificate failedto comply with the requirements of Rule 604(d), and remand isrequired for the filing of a new certificate and a new hearing onhis motion to reconsider sentence. We agree.
Supreme Court Rule 604(d) provides in part that beforea defendant who pleaded guilty may appeal from the judgmententered on the plea, the defendant must move to withdraw hisguilty plea, or if only the sentence is being challenged, he mustfile a motion to reconsider his sentence within 30 days. Peoplev. Shirley, 181 Ill. 2d 359, 361, 692 N.E.2d 1189, 1190 (1998);188 Ill. 2d R. 604(d). Rule 604(d) also provides, in pertinentpart, as follows:
"The defendant's attorney shall file with thetrial court a certificate stating that theattorney has consulted with the defendanteither by mail or in person to ascertaindefendant's contentions of error in the sentence or the entry of the plea of guilty, hasexamined the trial court file and report ofproceedings of the plea of guilty, and hasmade any amendments to the motion necessaryfor adequate presentation of any defects inthose proceedings." 188 Ill. 2d R. 604(d).
The certificate requirement allows "the trial court to insurethat counsel has reviewed the defendant's claim and consideredall relevant bases for the motion to withdraw the guilty plea orto reconsider the sentence." Shirley, 181 Ill. 2d at 361, 692N.E.2d at 1191. Our supreme court has held the certificaterequirement of Rule 604(d) must be strictly complied with. Shirley, 181 Ill. 2d at 362, 692 N.E.2d at 1191; People v. Janes,158 Ill. 2d 27, 35, 630 N.E.2d 790, 793 (1994).
In the case sub judice, defendant argues defensecounsel's certificate failed to conform to the requirements ofRule 604(d) and relies on People v. Mast, 305 Ill. App. 3d 727,713 N.E.2d 242 (1999). The State disagrees and contends remandis not required under People v. Wilson, 295 Ill. App. 3d 228, 692N.E.2d 422 (1998). We agree with defendant that this cause mustbe remanded.
In Mast, 305 Ill. App. 3d at 733, 713 N.E.2d at 246,the defendant argued defense counsel's Rule 604(d) certificatewas deficient because it failed to include a statement showingcounsel examined the transcript of the guilty plea hearing andfailed to contain certification that counsel made any necessaryamendments to the motion. The State argued the defendant had thesame attorney throughout the proceedings, and counsel's referenceto his review of the "court file" would likely include a reviewof the guilty plea transcript. Mast, 305 Ill. App. 3d at 733,713 N.E.2d at 246. Defense counsel's certificate of compliancestated:
"'I have consulted with the [d]efendant inperson to ascertain his contentions of errorin this cause; and *** I have examined thetrial court file and report of proceedings ofthe sentencing hearing.'" Mast, 305 Ill.App. 3d at 734, 713 N.E.2d at 246.
The Second District found defense counsel's certificatefailed to comply with the requirements of Rule 604(d). Mast, 305Ill. App. 3d at 734, 713 N.E.2d at 246. Although defense counselacknowledged he received the transcripts from the court reporters, it was unclear whether he had examined the transcriptrelating to the guilty plea hearing. Mast, 305 Ill. App. 3d at734, 713 N.E.2d at 246. The appellate court would not excusedefense counsel's failure to comply with Rule 604(d), even thoughhe had represented the defendant throughout the proceedings,because strict compliance with Rule 604(d) is required. Mast,305 Ill. App. 3d at 734-35, 713 N.E.2d at 246-47.
In Wilson, 295 Ill. App. 3d at 238, 692 N.E.2d at 429,defense counsel's Rule 604(d) certificate indicated he "'obtainedthe trial court file from Judge Patton's court reporter andexamined that file in Judge Patton's courtroom.'" The certificate did not indicate counsel examined the report of proceedings. Wilson, 295 Ill. App. 3d at 238, 692 N.E.2d at 429.
This court found the certificate complied with Rule604(d) because it referred to a particular file that containedthe report of proceedings. Wilson, 295 Ill. App. 3d at 238, 692N.E.2d at 429. The court also noted defense counsel referred tothe report of proceedings at subsequent hearings, thereby confirming his examination. Wilson, 295 Ill. App. 3d at 239, 692N.E.2d at 429.
In this case, defense counsel filed his Rule 604(d)certificate in the form of a checklist. Defense counsel placedan X in boxes indicating he had (1) personally consulted with thedefendant regarding this motion; (2) consulted with the defendantby mail regarding the motion; (3) examined the trial court file;and (4) elected to make no modifications to the motion. Thechecklist also included the following category with defensecounsel's corresponding marks:
"(X) I have reviewed the following transcripts:
( ) report of plea of guilty proceedings
(X) sentencing hearing
( ) other ."
Here, defense counsel indicated he reviewed the transcript of thesentencing hearing but made no indication that he reviewed thereport of the guilty plea proceedings. We do not believe defensecounsel's statement that he examined the trial court file wasenough to comply with Rule 604(d) in this case. The motion toreconsider and Rule 604(d) certificate were filed in April 2001. The report of proceedings was filed in May 2001. Thus, thereport of the guilty plea proceedings may not have been withinthe trial court file for defense counsel to examine. The factthat defense counsel specifically marked the space for thesentencing hearing, but not that of the report of the guilty pleaproceedings, leads us to conclude the Rule 604(d) certificate wasinsufficient.
We also note that at the hearing on the motion toreconsider sentence, defense counsel made no reference to thereport of the guilty plea proceedings, but did refer to thesentencing hearing transcript. Also, even though defendant wasrepresented by the same attorney throughout the proceedings,strict compliance with Rule 604(d) is still required. The remedyfor failure to strictly comply with Rule 604(d) is a remand tothe trial court for the filing of a new motion to reconsidersentence and a new hearing on the motion. Janes, 158 Ill. 2d at33, 630 N.E.2d at 792. We make no comment or ruling on defendant's remaining claims of error pertaining to his prison sentence.
III. CONCLUSION
For the reasons stated, we reverse the trial court'sjudgment denying defendant's motion to reconsider his sentenceand remand for further proceedings.
Reversed and remanded.
APPLETON and McCULLOUGH, JJ., concur.