Amend This Rule!

Illinois Supreme Court Rule 604(d)  governs appeals by defendants upon the entry of a guilty plea. A provision of that rule requires the defendant's attorney to accompany his post-trial motions with a certificate stating that he has consulted with the defendant "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 rule requires the attorney to consult with the defendant about either  the guilty plea or  the sentence. Then it inexplicably requires the attorney to examine only the transcript of the guilty plea hearing.  So, under this rule, if the defendant tells his attorney that he has no problems with the guilty plea but he's upset about the length of his sentence, the attorney has complied with the rule if he files a certificate stating only that he (1) consulted with the defendant about the sentence and (2) reviewed the transcript of the guilty plea.   

But it actually gets weirder. In People v. Neal, 403 Ill. App. 3d 757 (2010), the defendant's attorney filed motion to reconsider sentence and a certificate stating that he had reviewed the transcript of the sentencing hearing. He said nothing about the guilty plea hearing because the defendant had no contentions of error as to his guilty plea. The court remanded to allow the defendant to file a new post-trial motion because his attorney did not certify that he reviewed the transcript of the guilty plea hearing. Based on the text of the rule, the court reached the correct result. 

"However, in this context, it is clear that 'or' means 'and.'"

The Second Circuit's holding in People v. Dryden , 2012 IL App (2d) 110646, ¶ 9, 980 N.E.2d 203, points out the strangeness of the rule:

"The State points out that the rule's consultation requirement is phrased in the disjunctive: counsel must certify that he sought 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). However, in this context, it is clear that 'or' means 'and.' See People v. Prather, 379 Ill.App.3d 763, 768, 887 N.E.2d 44. It 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."

The compliance requirements of this rule are currently before the supreme court in People v. Tousignant , No. 115329. At oral argument in that case, the defendant's attorney argued that the supreme court should amend the rule. I agree. 

The Supreme Court should amend the rule to read as follows:

"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 and the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty and the sentencing, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings."

Simple as that.