NO. 4-02-0686

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

Defendant, Troi Starks, appeals from a final judgmentof conviction on his plea of guilty to one count of armed robberyand sentence of 20 years in prison. We affirm as modified andremand with directions.

I. BACKGROUND

On October 4, 2001, defendant pleaded guilty to onecount of armed robbery with a dangerous weapon (720 ILCS 5/18-2(a)(2) (West 2000)) as part of an open plea agreement with theState. The State agreed to dismiss six other counts in theindictment. On November 5, 2001, the trial court sentenceddefendant to 20 years in the Department of Corrections (DOC).

Defendant later filed a notice of appeal and sent aletter to the trial judge alleging ineffective assistance oftrial counsel and seeking a sentence reduction. He alleged thathis trial counsel, the public defender, had told defendant thatthe sentence would be 10 to 15 years rather than 20 years andthat no witnesses that defendant wanted to testify were called atthe sentencing hearing.

On December 18, 2001, the trial court held a hearing asa result of that letter and granted the public defender's motionto withdraw based upon defendant's allegation of ineffectiveassistance of counsel. New counsel was appointed, and onFebruary 8, 2002, defendant filed a motion to withdraw plea. OnAugust 12, 2002, defendant's new counsel filed a "[c]ertificateof [c]ompliance with Rule 604(d)," which stated:

"I [,] the undersigned attorney [,] herebycertify that I have consulted by mail and inperson to learn his contentions of error andI have been furnished a copy of thetranscripts of the proceedings of the pleahearing and the sentencing of the defendantand the file in this matter. I have filedthe appropriate [m]otion to [w]ithdraw. Respectfully [s]ubmitted, Troi Starks ByDavid N. Rumley [,] his attorney[.]"

The trial court denied defendant's motion to withdrawhis plea or alternatively to reduce his sentence. This appealfollows.

II. ANALYSIS

A. The Record Shows Strict Compliance With the CertificateRequirement of Rule 604(d)

Legal questions on trial court compliance with supremecourt rules are reviewed de novo. People v. Hayes, 336 Ill. App.3d 145, 147, 782 N.E.2d 787, 789 (2002).

Supreme Court Rule 604(d) states:

"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 thesentence or the entry of the plea of guilty,has examined the trial court file and reportof proceedings 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).

In People v. Janes, 158 Ill. 2d 27, 630 N.E.2d 790(1994), our supreme court has interpreted the rule strictly:

"[A] rule that counsel need not strictlycomply merely generates disputes on review,like the instant one, over whether the recordshows that there has been substantialcompliance with the provisions of Rule604(d). Accordingly, where the record hereindoes not show strict compliance with thecertificate requirement of Rule 604(d), wereverse that portion of the trial court'sjudgment denying defendant's motion towithdraw his guilty plea." Janes, 158 Ill.2d at 35, 630 N.E.2d at 793.

Since Janes, the appellate courts have struggled withstrict compliance with Rule 604(d) when faced with a recordshowing actual compliance with Rule 604(d). Clearly, if therecord demonstrates that the purpose of Rule 604(d) is satisfied, remand for a word change when no specific form has been mandatedby opinion, order, or rule is a waste of judicial resources.

This does not ignore the supreme court's reaffirmationof Janes in People v. Shirley, 181 Ill. 2d 359, 370-71, 692N.E.2d 1189, 1195 (1998), or signal a return to an analysis ofwhether failure to comply with Rule 604(d) was harmless orprejudicial.

The State cites People v. Wyatt, 305 Ill. App. 3d 291,712 N.E.2d 343 (1999), for the proposition that the words used inthe certificate need not be synonymous so long as the recordclearly demonstrates, on its face, strict compliance with Rule604(d): "The certificate need not recite word for word theverbiage of the rule." Wyatt, 305 Ill. App. 3d at 297, 712N.E.2d at 347-48. The State is correct that Wyatt stands for theproposition that "[a] Rule 604(d) certificate functions as abasis upon which the trial court can determine that defensecounsel has performed his duties under the rule and gives therecord a clear indication of the extent of counsel'sperformance." Wyatt, 305 Ill. App. 3d at 297, 712 N.E.2d at 347.

Here, defendant argues the Rule 604(d) certificate isflawed because it states only "furnished a copy of thetranscripts," but does not state that defense counsel had"examined the trial court file and report of proceedings of theplea of guilty (188 Ill.2d R. 604(d))." However, the record andtranscript of the proceedings in the trial court clearlydemonstrate strict compliance. The motion to withdraw the guiltyplea specifically references receipt of the record of thesentencing hearing, to wit:

"5. On or about January 17, 2002, [d]efendant'scounsel received the record of [d]efendant's sentencinghearing conducted November 05, 2001.

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7. That the court gave insufficient weight to themitigation evidence and arguments at sentencing.

8. That the court gave excessive weight to thebiased and misleading aggravation evidence and argumentat sentencing."

Moreover, the transcript was used by the State to cross-examinedefendant and was admitted as an exhibit during the hearingwithout objection by defendant's counsel. Defendant's counselactively participated in the hearing on the motion to withdrawthe guilty plea, and, at the conclusion of that hearing, in opencourt, defendant's counsel filed his Rule 604(d) certificate. Indeed, defendant was present and in counsel's company throughoutthe hearing. Defense counsel's questions show knowledge of thetranscript and of defendant's arguments.

We agree with the supreme court's concern that disputeson review should not degenerate into questions over whether therecord shows substantial compliance. Janes, 158 Ill. 2d at 35,630 N.E.2d at 793. Further, we noted in People v. Edwards, 228Ill. App. 3d 492, 499, 592 N.E.2d 591, 595 (1992), "although thisrule is one to be complied with by defense counsel, the trialcourts can help ensure that compliance is met." We would addthat it is also in the interest of the State to ensure thatstrict compliance is observed as the State also has an interestin avoiding a failure to comply with Rule 604(d).

The State relies on our decision in People v. Wilson,295 Ill. App. 3d 228, 692 N.E.2d 422 (1998), arguing aninartfully worded certificate satisfies the requirements of Rule604(d) where the record shows the transcript of the proceedingsin the court file and defense counsel's reference in argumentthereto. In Wilson, the Rule 604(d) certificate stated thatcounsel had "'obtained the trial court file from Judge Patton'scourt reporter and examined that file in Judge Patton'scourtroom.'" Wilson, 295 Ill. App. 3d at 238, 692 N.E.2d at 429. Further, the appellate court found the court reporter's "usualprocedure would have been *** to place the transcripts of thosehearings in the court file, the file to which counsel referred inthe Rule 604(d) certificate would have likely contained the'report of proceedings.'" Wilson, 295 Ill. App. 3d at 238-39,692 N.E.2d at 429. (We note the Wilson court assumes the usualcourt reporter procedure.) We find, nonetheless, the actualrecord in the case at bar sufficient to affirm. However, we notehere also that neither the November 5, 2001, report ofproceedings of defendant's sentencing hearing nor the August 12,2002, report of proceedings of the hearing on defendant's motionto withdraw his guilty plea bears file stamps to show they havebeen filed in the Sixth Judicial Circuit, although they are inthis court's file. Further, the docket sheet fails to evidencethe filing of the Rule 604(d) certificate, although thecertificate is file stamped, was submitted in open court asevidenced by the transcript, and is also in the court file.

We find that review of the record in total in thiscase, including the transcript of proceedings and the Rule 604(d)certificate, demonstrate compliance with the requirement of theRule 604(d).

B. Amendment of Judgment of Sentence

Defendant alleges and the State concedes that thejudgment of sentence in this case is erroneous in that it doesnot reflect that count IV was amended at the guilty plea hearingby striking "firearm, namely: a handgun" and inserting "dangerousweapon." Further, the statutory citation should be changed to aviolation of section 18-2(a)(1) (720 ILCS 5/18-2(a)(1) (West2000)) from section 18-2(a)(2) (720 ILCS 5/18-2(a)(2) (West2000)).

Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b)) givesthe appellate court the power to modify any judgment or orderfrom which the appeal is taken. A mistake in a judgment ofsentence is not reversible error but may be corrected at anytime. People v. Pittman, 75 Ill. App. 3d 683, 689, 394 N.E.2d702, 706 (1979). We, therefore, modify and remand and direct thetrial court to correct the judgment of sentence of to say: "720ILCS 5/18-2(a)(1)."

C. Defendant's Sentence Was Not Excessive

Defendant further argues that his 20-year prisonsentence for armed robbery was excessive in light of his strongrehabilitative potential, his age, his remorse, his efforts toimprove himself, and the lack of physical injuries among thevictims.

A reviewing court has the power and authority underSupreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)) to reducea sentence imposed by the trial court found to have constitutedan abuse of discretion. People v. Center, 198 Ill. App. 3d 1025,1032, 556 N.E.2d 724, 728 (1990).

An abuse of discretion includes imposition of asentence that is in violation of the principles of thedisproportionate-penalties clause. People v. Stacey, 193 Ill. 2d203, 209-10, 737 N.E.2d 626, 629 (2000). Where a sentence fallswithin statutory guidelines, it will not be disturbed on reviewunless it is manifestly disproportionate to the nature of thecase. People v. Kerkering, 283 Ill. App. 3d 867, 872, 671 N.E.2d368, 372 (1996). The sentencing range for armed robbery with adangerous weapon is 6 to 30 years. 730 ILCS 5/5-8-1(a)(3) (West2000). Defendant received a 20-year prison sentence. Thesentence the trial court imposed here clearly falls within thestatutory guidelines. The record shows that the trial judgeconsidered both defendant's admission of guilt and his substanceabuse as mitigating factors and his criminal history, threat ofserious harm to others, and the need for deterrence asaggravating factors. No abuse of discretion has beendemonstrated.

Therefore, we affirm the sentence the trial courtimposed.

III. CONCLUSION

We affirm defendant's conviction and sentence asmodified and remand with direction that the judgment of sentencebe amended to reflect defendant's conviction of armed robberywith a dangerous weapon under section 18-2(a)(1) (720 ILCS 5/18-2(a)(1) (West 2000)).

Affirmed as modified and remanded with directions.

COOK and TURNER, JJ., concur.