IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT
November 6, 2012
THE PEOPLE OF THE STATE OF ILLINOIS PLAINTIFF-APPELLEE,
MARTINEZ L. MINEAU,
Appeal from the Circuit Court of Winnebago County. No. 08-CF-4923 Honorable Rosemary Collins, Judge, Presiding.
The opinion of the court was delivered by: Justice Hudson
JUSTICE HUDSON delivered the judgment of the court, with opinion. Justice Birkett concurred in the judgment and opinion.
Presiding Justice Jorgensen specially concurred, with opinion.
¶ 1 Defendant, Martinez L. Mineau, was charged with burglary (720 ILCS 5/19-1(a) (West 2008)) and unlawful possession of a stolen motor vehicle (625 ILCS 5/4-103(a) (West 2008)). Pursuant to an agreement with the State, he pleaded guilty to the unlawful-possession charge and the State dismissed the burglary charge. Defendant later moved to withdraw the plea. Following a hearing, the trial court denied the motion. Defendant appeals, contending that the cause should be remanded for a new hearing where the attorney who represented him at the hearing did not file a certificate pursuant to Illinois Supreme Court Rule 604(d) (eff. July 1, 2006) and the certificate that co-counsel filed was insufficient. We affirm.
¶ 2 Defendant was indicted on January 8, 2009. Represented by assistant public defender Erin Hannigan, he pleaded not guilty. Questions soon arose about defendant's fitness to stand trial but, following a hearing, the court found him fit.
¶ 3 On August 24, 2010, defendant pleaded guilty to unlawful possession of a stolen motor vehicle, in exchange for the dismissal of the burglary charge. There was no agreement about a sentence. Ultimately, the trial court sentenced defendant to 8 years' imprisonment, with credit for 668 days he spent in presentencing custody.
¶ 4 Hannigan filed on defendant's behalf a motion to withdraw the plea or, alternatively, to reconsider the sentence. At a January 13, 2011, court appearance, Hannigan told the court that defendant's case was being reassigned to a new public defender, David Doll. Nonetheless, Hannigan filed an amended postplea motion and a Rule 604(d) certificate. The certificate stated:
"I hereby state that I have consulted with the Defendant, Martinez Mineau, by mail and/or in person, to ascertain defendant's contentions of error in the sentence or the entry of the plea of guilty; have examined the trial court file and report of proceedings of the plea of guilty; and have made any amendments to the motion necessary for adequate presentation of any defects in those proceedings."
¶ 5 Both Hannigan and Doll appeared at the hearing on the motion, although Doll questioned defendant and argued on his behalf. Following the hearing, the trial court denied the motion. Defendant, through Hannigan, filed a timely notice of appeal.
¶ 6 Defendant contends that he is entitled to a new hearing on his postplea motion because Doll, who questioned him and delivered the closing argument at the hearing, did not file a Rule 604(d) certificate. Defendant alternatively contends that the certificate Hannigan filed is defective because it uses the disjunctive "or" in two places.
¶ 7 Rule 604(d) requires that, when a defendant moves to withdraw a guilty plea or to reconsider a sentence imposed following a guilty plea, "[t]he defendant's attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain defendant's contentions of error in the sentence or the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, 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. July 1, 2006). It is well established that "[d]efense counsel must strictly comply with Rule 604(d)'s certificate requirement, and, when counsel fails to do so, the case must be remanded to the trial court for proceedings in compliance with the rule." People v. Love, 385 Ill. App. 3d 736, 737 (2008).
¶ 8 Nothing in the rule's plain language requires that, when a defendant is simultaneously represented by multiple attorneys from the same office, each attorney must file a certificate. In arguing for such a rule, defendant relies on two cases, People v. Herrera, 2012 IL App (2d) 110009, and People v. Ritchie, 258 Ill. App. 3d 164 (1994), that are distinguishable.
¶ 9 In Herrera, the attorney who filed the certificate left the public defender's office to become a judge and a different attorney from the office represented the defendant at the hearing. Herrera, 2012 IL App (2d) 110009, ¶ 5. Thus, we held, "Without a compliant certificate filed by the attorney who represents the defendant at his or her postplea hearing, the court has no assurance that the attorney presenting the motion has a grasp of the record and the defendant's contentions of error." (Emphasis in original.) Id. ¶ 11. Our concern was that the record did not disclose that the first attorney had conferred with the second about the contentions he had discussed with the defendant. Id. ¶ 12.
¶ 10 In Ritchie, the attorney who filed the certificate was still employed by the public defender's office, but the record did not show that he continued to represent the defendant or appeared at the hearing. Our primary holding was that the certificate the first attorney filed did not comply with the rule. Ritchie, 258 Ill. App. 3d at 166. We further noted that the certificate was not filed by the attorney who actually represented the defendant at the hearing. Id. Moreover, there was no indication in the record that the second attorney actually consulted with the first attorney, or with the defendant. Id. at 167.
¶ 11 The problem that concerned us in Herrera and Ritchie is not present here, where Hannigan continued to represent defendant and, indeed, attended the hearing. The record shows that, despite Hannigan's earlier statement that the case was being "reassigned," she filed an amended motion, appeared at the hearing on it, and filed the notice of appeal. When an attorney leaves an office, depending on the circumstances, he or she might or might not discuss pending files with his or her replacement. Thus, the concern in Herrera was justified. Here, it is simply not reasonable to assume that Hannigan, while continuing to represent defendant, assigned Doll substantial responsibility for the file but did not discuss with him defendant's contentions of error that were the basis of Doll's questioning at the hearing. Moreover, Hannigan, who drafted and filed the motion, appeared at the hearing. We refuse to assume that Hannigan sat at the counsel table with Doll but did not discuss the case with him before letting him question defendant.
¶ 12 Defendant insists that such an inference is reasonable because, although the motion alternatively sought reconsideration of the sentence, Doll did not mention that aspect of it at all. Defendant cites no case for the proposition that an attorney arguing a motion must specifically mention each point argued in the written motion. Doll and Hannigan could reasonably have concluded that the argument for withdrawing the plea was stronger and that they should focus on it. Moreover, the argument for reconsidering the sentence was relatively straightforward and did not require defendant's testimony.
¶ 13 While it might have been better practice for Doll to file his own certificate, we hold that, where Hannigan prepared and filed the motion and continued to represent defendant throughout the proceedings, a new certificate by Doll was not required. Because we conclude that Herrera and Ritchie are distinguishable, we decline the State's invitation to reconsider those decisions.
¶ 14 Defendant alternatively contends that the certificate Hannigan filed is deficient. This is so, he claims, because the certificate uses the disjunctive "or" in two places. We disagree. The certificate states that counsel consulted with defendant "by mail and/or in person," to ascertain his contentions of error. However, we know of no requirement that counsel must specify precisely how he or she communicated with the defendant. Defendant relies on People v. Prather, 379 Ill. App. 3d 763, 767-69 (2008). There, however, although the court found the certificate deficient, it did not accept the defendant's argument that the certificate had to specify the method of consultation. It is sufficient that the certificate shows that at least one of the approved means of communication was used, even if it does not specify which one.
¶ 15 Nor do we find fault in the portion of the certificate stating that counsel consulted with defendant "to ascertain defendant's contentions of error in the sentence or the entry of the plea of guilty" (emphasis added). This comports exactly with the rule's text. In any event, we do not read this to mean that counsel limited her consultation to one type of error or the other. Rather, it is reasonably clear from the certificate that counsel consulted with defendant to ascertain what type (or types) of error he was asserting. ¶ 16 We note that the rule itself uses the disjunctive "or" in referring to the manner of consultation and the type of error. Courts have repeatedly held that a certificate need not recite verbatim the rule's language. However, we are aware of no case finding a certificate insufficient for following the rule's language too closely. Nothing in the rule indicates that counsel must select the appropriate option, and thus we will not fault counsel for using the language of the rule.
¶ 17 The judgment of the circuit court of Winnebago County is affirmed.
¶ 18 Affirmed.
¶ 19 PRESIDING JUSTICE JORGENSEN, specially concurring.
¶ 20 I agree with the outcome and analysis in the majority decision. However, I write separately to emphasize that, as the majority notes, there is a better practice. While not a basis to reverse, the better practice would have been for attorney Doll to file his own Rule 604(d) certificate. Further, while the content of the certificate filed by attorney Hannigan was within the letter of Rule 604(d), the better practice would be for counsel to specifically note how he or she communicated with the defendant (e.g., by mail, in person, or both) and the subject matter of the communication (e.g., plea withdrawal or sentencing matter).
¶ 21 The purpose of Rule 604(d) is to ensure that counsel in these matters has communicated with his or her client and fully discussed the subject matter of the motion and is therefore prepared to proceed with a hearing. If the rule required counsel simply to aver that he or she has communicated in any manner, the additional language of "by mail or in person" would appear to be superfluous. So, while failure to articulate with more specificity the method of communication and the subject matter is not fatal, the better practice in keeping with the spirit of the rule would be to specify how the communication was accomplished and identify the subject matter. Doing so would provide both the trial court and the appellate court with the clearest averments upon which to judge whether counsel fulfilled his or her obligations under Rule 604(d).
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