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People v. Calleros

Court of Appeals of Illinois, Second District

June 21, 2018

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
EDUARDO CALLEROS, Defendant-Appellant.

          Appeal from the Circuit Court of Kane County. No. 14-CF-2026 Honorable James C. Hallock, Judge, Presiding.

          JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett concurred in the judgment and opinion.

          OPINION

          JORGENSEN JUSTICE.

         ¶ 1 On September 24, 2015, defendant, Eduardo Calleros, pleaded guilty to possession of a controlled substance (720 ILCS 570/402(c) (West 2014)). Pursuant to an agreement with the State, he was sentenced to a two-year prison term in exchange for his plea. He later moved to withdraw his plea. The trial court denied the motion on December 22, 2015, and defendant filed his notice of appeal on the same day. On appeal, defendant argues that his attorney did not properly certify compliance with the Illinois Supreme Court rule that sets forth counsel's duties in connection with postplea motions. We vacate and remand for further proceedings.

         ¶ 2 When defendant entered his guilty plea, Illinois Supreme Court Rule 604(d) (eff. Dec. 11, 2014) provided, in pertinent part, that, when a defendant moves to withdraw a guilty plea or to reconsider a sentence entered on 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." (Emphasis added.) Defendant moved to withdraw his plea on October 21, 2015. On November 4, 2015, defendant's attorney filed a Rule 604(d) certificate stating, in pertinent part:

"1. *** I have personally consulted with [defendant] *** to ascertain his contentions of error in the sentence or the entry of the plea of guilty;
***
3. *** I have obtained transcriptions of the court proceedings on September, 2015 and reviewed with the Defendant." (Emphasis added.)

         ¶ 3 On December 3, 2015, Rule 604(d) was amended to provide, in pertinent part, that "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 and the entry of the plea of guilty." (Emphasis added.) Ill. S.Ct. R. 604(d) (eff. Dec. 3, 2015). Defendant argues that, if the amendment did not apply, the certificate was deficient because it did not state that counsel examined the report of proceedings of the plea of guilty. On the other hand, defendant argues, if the amendment did apply, counsel's certificate was deficient because it stated that counsel consulted with him to ascertain his contentions of error "in the sentence or the entry of the plea of guilty." (Emphasis added.) It is well established that the attorney's certificate must strictly comply with the requirements of Rule 604(d). See People v. Janes, 158 Ill.2d 27, 35 (1994). If the certificate does not satisfy this standard, a reviewing court must remand the case to the trial court for proceedings that strictly comply with Rule 604(d), including "a new hearing on the motion." Id. at 33.

         ¶ 4 The first step in deciding this appeal is to determine whether the December 3, 2015, amendment to Rule 604(d) governed the contents of counsel's certificate. The retroactivity analysis that applies to statutes also applies to Illinois Supreme Court rules. People v. Easton, 2017 IL App (2d) 141180, ¶ 14, appeal allowed, No. 122187 (Jan. 18, 2018). The temporal reach of a statute is governed, in part, by section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2016)), which provides, in pertinent part, that

"[n]o new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding." (Emphasis added.)

         In addition, our supreme court has adopted the retroactivity analysis set forth in Landgraf v. USI Film Products, 511 U.S. 244 (1994). See Commonwealth Edison Co. v. Will County Collector, 196 Ill.2d 27, 36 (2001).

         ¶ 5 In People ex rel. Alvarez v. Howard, 2016 IL 120729, ¶ 19, our supreme court described Landgraf 's two-part approach for determining the retroactivity of a statute. The Howard court also explained the relationship between Landgraf and section 4 of the Statute on Statutes:

"Under [Landgraf's] two-part approach, the first question is whether the legislature has clearly indicated the temporal reach of the amended statute. [Citation.] If so, then that expression of legislative intent must be given effect, absent a constitutional prohibition. [Citation.] If not, then the court proceeds to step two and determines whether the statute would have a retroactive impact. A statute has a retroactive impact if it ' "would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." ' [Citation.] If there is no retroactive impact, the statutory amendment may ...

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