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Nos. 2--02--0522, 2--02--0523, 2--02--0524, 2--02--0525 cons.

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, Joseph Spooner-Tye, appeals the trial court's order denying his motion towithdraw his guilty plea. Defendant argues that defense counsel failed to strictly comply withSupreme Court Rule 604(d) (188 Ill. 2d R. 604(d)) and that the cause should be remanded for a newhearing. We affirm.

In an information dated December 3, 1999, defendant was charged with two counts ofdomestic battery, both Class A misdemeanors (720 ILCS 5/12--3.2(a)(1), (a)(2) (West 2000)). Inan information dated December 20, 1999, defendant was charged with another count of domesticbattery (720 ILCS 5/12--3.2(a)(1) (West 2000)). In an information dated March 3, 2000, defendantwas charged with retail theft, a Class A misdemeanor (720 ILCS 5/16A--3(a) (West 2000)). Finally,in an information dated March 10, 2000, defendant was charged with unlawful use of a credit card,a Class 4 felony (720 ILCS 250/8 (West 2000)).

On December 10, 2001, defendant entered guilty pleas in each case. In exchange for pleadingguilty, the State agreed to reduce the felony charge of unlawful use of a credit card to deceptivepractices, a Class A misdemeanor (720 ILCS 5/17--1 (West 2000)). Defendant was sentenced to 12months in the Lake County jail.

On January 8, 2002, defendant filed a motion pro se to withdraw his guilty plea. On March25, 2002, defense counsel filed a motion to withdraw the guilty plea in all four cases. In support ofhis motion, defendant stated that he did not plead guilty to the domestic battery charges and that hebelieved that those charges would be nol-prossed. Following a hearing, the trial court denieddefendant's motion to withdraw his guilty plea.

Prior to the motion to withdraw the guilty plea, defense counsel filed a certificate ofcompliance with Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)). The certificate indicated thatdefense counsel: (1) consulted with defendant to ascertain his contentions of error; (2) examined thecourt file, although "[t]here were no reports of proceedings of the plea of guilty"; and (3) made anynecessary amendments to the motion.

On May 14, 2002, defendant filed four separate notices of appeal. In a motion filed onJanuary 15, 2003, defendant asked this court to: (1) consolidate the four appeals; (2) reverse the trialcourt's judgment denying his motion to withdraw his guilty plea; and (3) remand the cause so thatdefendant could file a new postplea motion. Defendant further requested that we order defensecounsel to prepare a bystander's report or an agreed statement of facts for the guilty plea proceedings. On February 7, 2003, we agreed to consolidate the appeals but denied defendant's motion forsummary reversal and remand. Further, we ordered that the consolidated appeal be briefed.

The sole issue we address on appeal is whether Supreme Court Rule 604(d) requiresexamination of guilty plea transcripts (or their equivalent) in misdemeanor cases. According todefendant, Rule 604(d) requires defense counsel to certify that he has examined the guilty pleatranscripts or an equivalent, such as a bystander's report or an agreed statement of facts preparedunder Rule 323 (166 Ill. 2d R. 323). Because defense counsel did not certify that he had reviewedthe guilty plea transcripts or their equivalent, defendant argues that the attorney's certificate filedunder Rule 604(d) was defective. He asks this court to reverse the trial court's denial of his motionto withdraw his guilty plea and remand the cause for strict compliance with Rule 604(d).

The State counters that defense counsel fully complied with Rule 604(d). In the State's view,Rule 604(d) does not require that counsel certify that he has reviewed the transcripts of the guiltyplea hearing in misdemeanor cases. According to the State, a report of proceedings is required tobe prepared only in cases where Supreme Court Rule 402(e) (177 Ill. 2d R. 402(e)) applies. BecauseRule 402(e) applies only to felony cases, a strict reading of Rule 604(d) requires that a report ofproceedings be prepared only in felony cases. Since defendant here pleaded guilty to misdemeanoroffenses, the State argues that no report was required to be prepared in this case.

Our analysis concerns the language in Rules 604(d) and 402(e). Supreme Court Rule 604(d)states, in pertinent part:

"If the defendant is indigent, the trial court shall order a copy of the transcript as providedin Rule 402(e) be furnished the defendant without cost. The defendant's attorney shall filewith the trial court a certificate stating that the attorney has consulted with the defendanteither by mail or in person to ascertain defendant's contentions of error in the sentence or theentry of the plea of guilty, has examined the trial court file and report of proceedings of theplea of guilty, and has made any amendments to the motion necessary for adequatepresentation of any defects in those proceedings." 188 Ill. 2d R. 604(d).

Supreme Court Rule 402(e) states:

"In cases in which the defendant is charged with a crime punishable by imprisonmentin the penitentiary, the proceedings required by this rule to be in open court shall be takenverbatim, and upon order of the trial court transcribed, filed, and made a part of the commonlaw record." 177 Ill. 2d R. 402(e).

When a defendant files a postplea motion, Rule 604(d) requires that defense counsel file withthe trial court a certificate stating that the attorney has consulted with the defendant to ascertain hiscontentions of error, has examined the trial court file and report of proceedings of the guilty plea,and has made any amendments to the motion necessary to adequately present any defects in theproceeding. 188 Ill. 2d R. 604(d); People v. Wyatt, 305 Ill. App. 3d 291, 296 (1999). The remedyfor failure to strictly comply with each of the strictures of Rule 604(d) is a remand to the circuit courtfor the filing of a new to motion to withdraw guilty plea and a new hearing on the motion. Peoplev. Janes, 158 Ill. 2d 27, 33 (1994).

At the outset, we note that defendant was originally charged with unlawful use of a creditcard, a Class 4 felony. In exchange for pleading guilty, however, the State agreed to reduce thefelony charge of unlawful use of a credit card to deceptive practices, a Class A misdemeanor. Because defendant did not plead guilty to a felony charge, Rule 402(e) does not apply. Defendantconcedes that, under Rule 402(e), there was no requirement to have a transcript prepared in this case;thus, his attorney was unable to examine a report of proceedings. Nevertheless, defendant states thatthere is "tension" between Supreme Court Rules 604(d) and 402(e), and gives four reasons why the"guilty plea transcript-review" portion of Rule 604(d) should extend to misdemeanor guilty pleas.

First, defendant contends that Rule 604(d) does not distinguish between felony andmisdemeanor cases. We disagree. As set forth above, Rule 604(d) specifically incorporates Rule402(e), which does not mandate a transcript unless the offense is punishable by a penitentiarysentence. See People v. Grundset, 63 Ill. App. 3d 787, 789 (1978). Because defendant here wascharged with misdemeanors not punishable by imprisonment in the penitentiary, a transcript of theproceedings at the guilty plea hearing was not required. See Grundset, 63 Ill. App. 3d at 789. Consequently, interpreting Rule 604(d) to require the review of transcripts in misdemeanor caseswould ignore the plain language of Rule 402(e). Moreover, our supreme court has stated that Rules402 and 604(d), which concern guilty pleas, are meant to mesh together not only to ensure thatdefendants' constitutional rights are protected, but also to avoid abuses by defendants. People v.Wilk, 124 Ill. 2d 93, 103 (1988). Thus, we reject defendant's claim that Rule 604(d) does notdifferentiate between felonies and misdemeanors.

Second, defendant contends that Rule 604(d) requires that defense counsel review guilty pleatranscripts or their equivalent in order to be effective. Essentially, defendant argues that, without atranscript or the equivalent, defense counsel was unable to comply with Rule 604(d) and, therefore,was ineffective. Rather than assert that his counsel was ineffective in this case for failing to preparea bystander's report or an agreed statement of facts pursuant to Rule 323, defendant bases his claimof ineffectiveness on defense counsel's inability to comply with the technicalities of Rule 604(d). Specifically, defendant alleged that his guilty plea should be vacated because defense counsel toldhim that, if he pleaded guilty to the offenses of retail theft and deceptive practices, the two domesticbattery charges would be dismissed. Defendant claims that he was unaware that he was pleadingguilty to domestic battery. Since neither the transcripts nor their equivalent was available, defendantasserts that defense counsel could not determine whether the trial court properly admonisheddefendant regarding the domestic battery charges.

The State concedes that failure to strictly comply with Rule 604(d) renders counselineffective. Nonetheless, the State argues that it is illogical to require defense counsel to certify thathe has read a transcript that does not exist. In the State's view, if there is no requirement that a reportof proceedings be prepared in misdemeanor cases, and if counsel cannot be required to certify thathe has read the nonexistent report, then he cannot be considered ineffective for failing to do so. Weagree with the State.

In Grundset, we rejected a similar argument. There, the defendant was charged with amisdemeanor not punishable by imprisonment in the penitentiary; thus, a transcript of theproceedings at the guilty plea hearing was not required. Grundset, 63 Ill. App. 3d at 789. Further,the defendant in Grundset failed to implement Rule 323 to furnish a bystander's report or an agreedstatement of facts. Grundset, 63 Ill. App. 3d at 790. Nevertheless, he argued that the lack of atranscript of the guilty plea hearing deprived him of the effective assistance of counsel since hisattorney could not adequately state the basis for vacating the plea. Grundset, 63 Ill. App. 3d at 789. We specifically rejected the notion that the requirements of Rule 604(d) were impossible to fulfilldue to the lack of a transcript of the guilty plea hearing. Grundset, 63 Ill. App. 3d at 789-90. Finding that the lack of a transcript of the guilty plea proceedings was not a constitutional issue, wefound no ineffective assistance of counsel. Grundset, 63 Ill. App. 3d at 790. Because we do notinterpret Rule 604(d) as requiring defense counsel to review guilty plea transcripts or their equivalentin misdemeanor cases, defendant's claim that his counsel was ineffective for failing to comply withRule 604(d) must fail.

Next, defendant argues that the distinction between felony and misdemeanor cases isunreasonable and violates the equal protection clauses of the fourteenth amendment and the IllinoisConstitution. Defendant relies on Mayer v. City of Chicago, 404 U.S. 189, 30 L. Ed. 2d 372, 92 S.Ct. 410 (1971), which held that Illinois Supreme Court Rule 607(b) violated the fourteenthamendment of the United States Constitution because it required that a free transcript be givenindigent defendants only in felony and not in nonfelony cases. As defendant recognizes, Mayer isdistinguishable from the case at bar because it concerned an indigent defendant requesting atranscript under Rule 607(b) for purposes of appeal. Mayer, 404 U.S. at 190-91, 30 L. Ed. 2d at 376,92 S. Ct. at 412-13. Here, we address whether Rule 604(d) requires review of guilty plea transcriptsin misdemeanor cases at a postplea hearing.

We do not read Mayer or its progeny as requiring a verbatim transcript in misdemeanor cases. See People v. Hopping, 60 Ill. 2d 246, 250 (1975); People v. Kline, 16 Ill. App. 3d 1017, 1020(1974). In Hopping, the defendants argued that Rule 402(e) must be construed to require thatverbatim transcripts be furnished to indigent defendants who pleaded guilty to misdemeanors, andthat their right to equal protection was violated unless such transcripts were furnished to them. Hopping, 60 Ill. 2d at 251. The court, however, held that Rule 402 does not purport to stateconstitutional requirements. Hopping, 60 Ill. 2d at 251. Noting that the defendants failed to availthemselves of Supreme Court Rule 323, which provides for the preparation of a proposed report ofproceedings by the appellant in the event that no verbatim transcript is available, the courtdetermined that neither the Illinois nor the United States Constitution required that the defendantsbe furnished with verbatim transcripts of the guilty plea hearings. Hopping, 60 Ill. 2d at 253-54.

Defendant further argues that all parties, not just defendant, are responsible for ensuring thatRule 604(d) attorney's certification requirements are strictly complied with. He relies on a caserecently decided by this court where we stated:

"Since the State pays for the defense counsel, prosecutor, and judge in this case, perhaps theyall should be concerned with conserving the State's resources and pay attention to the factthat a Rule 604(d) certificate was not filed." In re Omar A., 335 Ill. App. 3d 732, 733-34(2002).

Contrary to defendant's assertion, this language does not translate into a constitutional requirementthat a transcript or its equivalent be prepared in misdemeanor cases. While all parties should beconcerned with complying with Rule 604(d), there is simply no requirement that a transcript beprepared in cases not punishable by imprisonment in the penitentiary.

Last, defendant argues that not extending the "guilty plea transcript-review" portion of Rule604(d) to misdemeanor guilty pleas would contravene the spirit of that rule because it would ensurethat alleged errors would first be raised before the appellate court rather than the trial court. BecauseSupreme Court Rule 607(b) allows a defendant to petition the trial court for transcripts that are sentto appellate counsel, defendant argues that the trial court would not be the first to review allegederrors in the guilty plea proceedings. Defendant notes that Rule 604(d) was "designed to eliminateneedless trips to the appellate court and to give the trial court an opportunity to consider the allegederrors and to make a record for the appellate court to consider on review in cases where defendant'sclaim is disallowed." Wilk, 124 Ill. 2d at 106. This argument lacks merit.

Contrary to defendant's assertion, Rule 607(b) does not require that a verbatim transcript beprepared in every matter. Rather, Rule 607(b) relates to the right of an indigent defendant to obtaincopies of an available transcript free of charge. Because defendant was convicted of misdemeanorsnot punishable by imprisonment in the penitentiary, there was no requirement that a transcript beprepared under Rule 402(e). As a result, Rule 607(b) may not be used to provide a transcript thatdoes not exist. Additionally, Rule 323 does allow alternate means for the preparation of a recordwith respect to review of such guilty pleas where no verbatim transcript is available. Hopping, 60Ill. 2d at 253. However, defendant here failed to avail himself of such other means. Finally, withrespect to the purpose behind Rule 604(d), we note that the trial court was given the first opportunityin this case to consider defendant's alleged errors regarding his guilty plea. After a full hearingwhere defendant was allowed to testify as to why his guilty plea should be vacated, the trial courtdetermined that his motion should be denied.

In sum, we hold that defense counsel's certificate was in full compliance with Rule 604(d)and that a remand for new filings is not required. For these reasons, the judgment of the circuit courtof Lake County is affirmed.

Affirmed.

HUTCHINSON and GILLERAN JOHNSON, JJ., concur.