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People v. Tousignant

Supreme Court of Illinois

February 21, 2014

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant,
v.
MITCHELL TOUSIGNANT, Appellee.

JUSTICE FREEMAN delivered the judgment of the court, with opinion. Chief Justice Garman and Justice Burke concurred in the judgment and opinion. Justice Thomas specially concurred, with opinion. Justice Karmeier dissented, with opinion, joined by Justices Kilbride and Theis.

OPINION

FREEMAN JUSTICE

¶ 1 Defendant Mitchell Tousignant pleaded guilty to unlawful possession of a controlled substance with intent to deliver and was sentenced to 12 years' imprisonment. Defendant's counsel filed a motion to reconsider the sentence, and the circuit court of Livingston County denied the motion. A divided panel of the appellate court reversed and remanded, holding that counsel's certificate pursuant to Supreme Court Rule 604(d) was not in strict compliance with the rule. 2012 IL App (4th) 120650-U, ¶ 15. We allowed the State's petition for leave to appeal, and now affirm the judgment of the appellate court.

¶ 2 BACKGROUND

¶ 3 In December 2011 defendant entered an open plea of guilty to unlawful delivery of a controlled substance (720 ILCS 570/401(d) (West 2010)) (count I) and unlawful possession with intent to deliver a controlled substance (720 ILCS 570/401(c)(1) (West 2010)) (count II). The circuit court merged the counts and entered a conviction on count II. In April 2012, the court sentenced defendant to 12 years' imprisonment.

¶ 4 On May 3, 2012, defendant's counsel filed a motion to reconsider the sentence, alleging it was "excessive." On the same day, counsel filed a certificate pursuant to Illinois Supreme Court Rule 604(d) (eff. July 1, 2006), which stated:

"NOW COMES [defense counsel], attorney for Defendant herein and states that he has consulted with the Defendant in person to ascertain Defendant's contentions of error in the sentence imposed herein, has examined the trial court file and the Court proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings."
At the hearing on the motion, defendant asked that his sentence be reduced from 12 years to 7 years so he would be immediately eligible for a drug treatment program. The circuit court denied the motion, and defendant appealed.

¶ 5 The appellate court noted that while counsel's certificate stated that counsel consulted with defendant about defendant's contentions of error in the sentence, it did not state that counsel consulted with defendant about defendant's contentions of error in the guilty plea. "[N]othing shows counsel consulted with defendant to determine contentions of error outside of the motion to reconsider sentence." 2012 IL App (4th) 120650-U, ¶ 13. Concluding that counsel's certificate did not strictly comply with Rule 604(d), the court reversed the circuit court's judgment and remanded for "(1) the filing of a new postplea motion (if defendant so wishes), (2) a new hearing on defendant's postplea motion, and (3) strict compliance with Rule 604(d) requirements." Id. ¶ 15. The dissent asserted, to the contrary, that counsel's certificate strictly complied with the plain language of Rule 604(d), which "does not require defense counsel to state it ascertained defendant's contentions from both the entry of the plea and sentencing but, rather, requires counsel to state he or she ascertained contentions from only one of them." Id. ¶ 18 (Turner, P.J., dissenting).

¶ 6 ANALYSIS

¶ 7 The issue here is whether Rule 604(d) requires counsel to certify that he consulted with the defendant regarding defendant's contentions of error in the sentence and the guilty plea, or only regarding contentions of error relevant to the defendant's post-plea motion. Rule 604(d) provides, in pertinent part;

"(d) Appeal by Defendant From a Judgment Entered Upon a Plea of Guilty. 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 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. The motion shall be heard promptly, and if allowed, the trial court shall modify the sentence or vacate the judgment and permit the defendant to withdraw the plea of guilty and plead anew. Upon appeal any issue not raised by the defendant in the motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be deemed waived." Ill. S.Ct. R. 604(d) (eff. July 1, 2006).

¶ 8 The principles by which we construe supreme court rules are familiar and well settled. The same principles that govern the interpretation of statutes govern the interpretation of rules of this court. People v. Campbell, 224 Ill.2d 80, 84 (2006); People v. Marker, 233 Ill.2d 158, 164-65 (2009). Our goal is to ascertain and give effect to the intention of the drafters of the rule. Campbell, 224 Ill.2d at 84; Marker, 233 Ill.2d at 165. The most reliable indicator of that intent is the language used, which must be given its plain and ordinary meaning. Marker, 233 Ill.2d at 165; People v. Baskerville, 2012 IL 111056, ¶ 18. Words and phrases should not be considered in isolation; rather, they must be interpreted in light of other relevant provisions and the statute as a whole. County of Du Page v. Illinois Labor Relations Board, 231 Ill.2d 593, 604 (2008). In addition to the language used, the court may consider the purpose behind the law and the evils sought to be remedied, as well as the consequences that would result from construing the law one way or the other. Id. As with statutes, the interpretation of a supreme court rule presents a question of law, which we review de novo. Campbell, 224 Ill.2d at 84.

¶ 9 The State emphasizes the rule's use of the word "or, " particularly in the consultation provision, which states: "The defendant's attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant to 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. July 1, 2006). The State asserts the word "or" is disjunctive, not conjunctive, and the rule's plain language therefore "requires counsel to certify only that she has consulted with defendant about his contentions of error in the sentence or in the guilty plea" (emphasis in original). Where, as here, defendant filed only a motion to reconsider his sentence, the State argues counsel must consult with defendant "only about defendant's contentions of error in the sentence." If, on the other hand, a defendant files a motion to withdraw his guilty plea, counsel must consult with the defendant about the defendant's contentions of error in the guilty plea.

¶ 10 The State acknowledges that counsel may not choose one of these arbitrarily as the subject of the consultation. For example, if a defendant files a motion to withdraw his guilty plea, "it would be absurd to conclude that counsel could strictly comply with Rule 604(d) by certifying that he consulted with defendant only about defendant's contentions of error in the sentence." The State also points to People v. Dryden, 2012 IL App (2d) 110646, ¶ 9, which concluded "[i]t would be absurd to suggest that where, as here, counsel moves both to withdraw the plea and to reconsider the sentence, counsel may arbitrarily choose to consult with the defendant about only one type of error." In the State's view, counsel's consultation obligation depends on the type of motion the defendant files.

¶ 11 We disagree. The basis of the State's argument is its assertion that the word "or" is disjunctive in all circumstances. The State asserts: " 'Or' means 'or' in Rule 604(d), just as it does in any other context." We recognize that the word "or" is generally disjunctive (see, e.g., Elementary School District 159 v. Schiller, 221 Ill.2d 130, 145 (2006); People v. Herron, 215 Ill.2d 167, 191 n.3 (2005)), and the word "and" is generally conjunctive (see, e.g., People v. Parcel of Property Commonly Known as 1945 North 31st Street, Decatur, Macon County, Illinois, 217 Ill.2d 481, 500 (2005)). But this is not always the case. In John P. Moriarty, Inc. v. Murphy, 387 Ill. 119, 129-30 (1944), for example, this court stated:

"It is the settled law of this State that the words 'or' and 'and' will not be given their literal meaning when to do so renders the sense of a statutory enactment dubious. The strict meaning of such words is more readily departed from than that of other words. Where it is necessary to effectuate the intention of the legislature, the word 'or' is sometimes considered to mean 'and, ' and the word 'and' to mean 'or.' "

Accord County of Du Page, 231 Ill.2d at 606; Sturgeon Bay v. Leatham, 164 Ill. 239, 243 (1896).

¶ 12 This principle-that the word "and" is sometimes considered to mean "or, " and vice versa, in the interpretation of statutes-applies only where a literal reading is at variance with the legislative intent. See John P. Moriarty, ...


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