Oral argument — In re H.L.

The court now calls case one one eight five two nine in re H.L. a minor the parties ready to proceed ready may please the court counsel and assistant attorney general Brian McLeish on behalf of the people of the state of Illinois the court's choice here is simple it can read rule 604 D as written or it can impose an unwritten deadline and thereby create unnecessary remands these ran remands are unnecessary because in every case the appellate court will know regardless of when counsel filed his certificate that he did everything rule 604 D required he consulted with the defendant he examined the relevant portions of the record he amended the motion if necessary and he swore to all those things in a certificate not only will in every case the appellate court know that the that counsel did all those things in every case when if you know if we adopt the rule respond has requested council won't even need to file a new certificate on remain because there will be a remain or a certificate filed before the new hearing and then the new hearing will if it goes the way most hearings in these cases go be simply the state rising and asking the court to take judicial notice of the transcripts of the hearing that last occurred and and that would be it mr. mccleish if this court determines that surely said that the preferable way to go right that the certificate should be found before the hearing or at the here we agree we first agree that surely said that was the preferable way to go and we also agree that that's the preferable way to go and the reason for that is let me ask my question oh part so you know that's fine if we if we determine that it's not only the preferable way to go but determine the rule maybe should be amended to indicate that is the way to go I guess I'm gonna answer my own question I assume you're saying that in this particular case we should still reverse an amendment will because there was not a requirement in your class yes your honor however this particular case is not that important so we we we our position is that you should amend the rule so that lawyers trial courts know what the rule says and they don't have so that so that the rule says what it says and the rule right now doesn't say what respondent wants it to say and yes you know because unless the court wants to make the rule change retroactive you know it could do that but the most important thing is for the rule to say what it says and but however the court shouldn't amend the rule because there's there's really no benefit to be gained from it and so trial court should be required a trial court should demand that the certificate be filed before the hearing so that the trial court has a chance to take a look at the certificate make sure that there aren't any errors so that it's not so that there's not a remand later for an erroneous 604 D certificate but if the trial court doesn't do that then the consequence is sometimes these cases are going to be remanded because there are errors in the 604 D certificate when there aren't errors in the certificate there's there's just no benefit to remanding this back to the trial court for the for the attorney to say the exact same thing he or she said before at a different time and the purpose of the certificate certification requirement is if we if it stands in surely as to the preferable way you know we're going to have more cases like this I'm deep are you ask you're asking us not to amend the rule are you asking it to amend it via case law in a sense and indicate that it's not preferable we want it filed during that period of time we that our position is that's not an amendment to the case law we agree that it's and oh and that would be the worst possible outcome so not amending the rule but but declaring it you know just as a matter of course as you know as a judicial decree would probably be the worst possible outcome requiring unless the remit unless there's basically no remedy which doesn't make sense because the rule the court requires strict compliance with the rule so if it's part of the rule then there's going to be a remand in every case where the certificate is not filed before the hearing if the court amends the rule if the court just says counsel you know counsel should do this before the hearing we would agree with that however we the most important thing is that there's not a remand every time counsel doesn't file this before the hearing because counsel what's the purpose of then in your opinion of us requiring a certificate to be filed there there is no of requiring the certificate to be filed right or I mean if it doesn't make any difference it does make a difference your honor we when the certificate is filed that means the trial court so the purpose of 604 D more broadly is to ensure that the challenge the plea or to challenge the sentence because if he doesn't do it at this stage then they're waived and it's very difficult to bring them again the purpose of the certification requirement is so that reviewing courts know every argument that defendant wanted to raise and every you know argument well that every art that every argument defendant wanted to raise was before the trial court and we know that and we will know that in every case where counsel files certificate the trial court did consider all the arguments that respond wanted to raise and we know that counsel consulted with the respondent to make sure you know that that he was raising those arguments and we will know that in every case when counsel files a certificate so you're saying the purpose of the certificate is for the benefit of the appellate court not only so so the the court gets the benefit because counsel by certifying this we all know the trial court doesn't at the time it's considering the hearing you know doesn't have the benefit of the certificate however we do if it's filed yes correct before but in any case the trial court is the benefit of counsel actually having presented the arguments that all of the right arguments and we know that because counsel filed a certificate Mr. McLeish yes your honor um doesn't our action and Travis actually suggest an answer to the issue in this case Travis the fifth district case yes the yes your honor so Travis does suggest that the court at the time so first of all because by remanding Travis we implicitly found that our decision and surely meant that a rule certificate must be filed before or at the time of the hearing and post plea motion yes and that's not binding precedent however that that is suggestive I must candidly admit that is suggestive what the court at the time believed to be the case however it's just not a it's first of all it's not binding precedent second of all it's not in the rule and third of all it's not a good idea because we're what's not a good idea the the the rule that the rule that respondent has proposed either be amended well yeah basically the proposed amendment by judicial declaration it's not a good idea because in any case where this deadline matters the appellate court already has all the information it knows and we're sending it back for a formal not even a refiling of the certificate because the certificates already filed before the next hearing and there's no reason to think that the hearing will be any different because counsel has already sworn that he presented everything and made the amendments to the motion necessary I don't understand what your big problem is with either an amended rule or through case law indicating that it would have to be filed instead of preferably that it would have to be found I mean wouldn't there still be and I understand what you're saying you're saying okay well it's filed afterwards there's an appeal taken saying it wasn't filed at or during because we've amended the rule and now it's going to go back and nothing's going to change but I suppose you there'd still be like a harmless error argument wouldn't there if indeed it goes up and you said okay there hasn't been strict compliance with this it wasn't filed before it was filed afterwards you know ten minutes at whatever had the hearing we know that it the certification is is valid what what is your big issue with us either amending the rule to indicate that it's mandated or in this case indicating going forward it's no longer preferable we think it should be filed during or before before or during the hearing it's a it's a waste of judicial resources and it's a waste of defendants or respondents time before the case is actually considered on the merits and it's a waste of time for the for both the trial court in the appellate court and and there where is the waste of time because the so in in this case for example the hearing is held certificate is filed that means we know the trial court knew everything it needs to know it got had all the arguments before it the appellate court knows that because the certificate is on file in the trial court as the rule prescribes and so there is because the strict compliance rule there is no so if this court were to hold that the state could argue harmless error then there would be a different waste of resources and that would be arguing harmless error whenever this case is it equally a waste of time at the hearing if we're presuming that after this hearing that the certificate there's gonna be proof the certificate was filed well what if it wasn't then there's going to be remand in any case so so if there's no certificate filed then the deadline doesn't matter if there's an error in the certificate then the deadline doesn't matter the deadline only matters in those cases when there's going to be absolutely no change and there's there's that all the information was properly before the circuit court and the appellate court knows that because it was it was before you know because this has been filed so in every case it's going to be a it's going to go up to the appellate court someone's going to notice that this you know so if the supposing the rule is amended in every case it's going to go up to the appellate court it's going to go back down there's going to be no new certificate filed unless this court creates a rule that there has to be a new certificate file that will say the exact same thing and then there will be no substantively different hearing or there's no reason I think there's going to be a substantively different hearing and then it'll go back to the appellate court six nine months later than it otherwise would have so you think there was wisdom behind the use of the word preferable yes your honor and it may have been intentional or unintentional wisdom but yes and it is preferable and and a a trial judge for even if in his own or her own self-interest should should say hey by the way get this on file before the hearing so I can take a look at it so the prosecutor can take a look at it and so we make sure you know so we don't have this hearing and then have a remand but by putting it into the rule we create a remedy that's useless it's useless in exact in the only times when when the deadline wouldn't matter or you suggesting that we clarify surely by saying even though it's preferable it's complies with the rule if it's and for those reasons we ask that this court reverse the judgment of the appellate court and remain for the proceedings thank you there's just so much to respond to you don't know I don't know counsel would you identify yourself for the record good morning your honors my name is Sherry Silver and I'm with the office of the state appellate defender and we represent HL here in this appeal your honors the Supreme Court rules are rules of procedure they're not just suggestions the the violation of a rule is not something that's an inconsequential matter it's not a useless gesture to send a case back if a certificate is in is filed in an untimely I mean after the the motion to reconsider a motion to withdraw the plea is heard the certificate as this court said and surely should be filed at prior to or contemporaneously with that hearing what happens in this case if the rule if in fact the certificate is proper as to form and covers what it's supposed to cover but it was just late what happens now when if we sent it back for the new filing of it or what did we send it back for it would go back under all these other cases that have gone back under similar circumstances for the opportunity for HL to refile a motion to reconsider his disposition it goes back to that stage and then it goes through that process again but the certificate here we didn't challenge the certificate itself because it seems so clear under Shirley and James one that it should go back because it was late it was filed on the same day as the notice of appeal if there was something wrong with that certificate the circuit court would have been deprived of jurisdiction because the notice of appeal was filed and the appeal in the appellate court would send it back I'm sorry and the appellate court would send it back if there was something wrong if there was something wrong with the certificate yes is there something wrong with a certificate in this case in this case but let me back up the answer to that for just a second one of the reasons for having the trial court consider the certificate prior to or contemporaneously with the motion the post plea motion post disposition motion is so that the trial court can look at matters that perhaps may be off the record your honor said that in shortly it's like the third or fourth paragraph of Shirley they can look at those matters now we go to the certificate here Riley Unkin who is the the trial counsel was nice enough to include the dates that he supposedly consulted with HL one was the date of the disposition the other one was the date of the hearing on the post disposition motion what kind of consultation can go on at that point nothing the motion is filed what is he going to do say your honor I need 10 minutes to go out and get my computer and redo this motion that's not going to happen it's a practical matter that it's not going to happen if the motion itself was filed on March 19th which is only two weeks after the disposition hearing how much consultation could have gone on at the disposition hearing and how much review of the record could have gone on those are the issues that the certificate that the intent behind the certificate really contemplates that the court can take those into consideration when they have that certificate right there in front of them along with the motion to make sure that all of the defendants or juveniles issues are you would agree right there's nothing specifically in the rule yes as to filing so so you're looking at Shirley and saying that Shirley says shell yes right but surely also says that it must be filed in the trial court and shall be filed at best procedure right so if we disagree with you if we think that surely as discussed with mr. McLeish is a suggestion from the court strong suggestion from the court but not part of the rule where are we and if we agree with the proposition that we're better off with it amended at least the rule amendments where are we in this case I think it does the rule itself does need to be amended I think it needs to be clear it's not a matter of trial counsel scour case law to find appropriate case law like it was written you don't have to scour the case law to figure out what you're supposed to do and I think you're right justice Burke that that the situation in Travis really does sort of answer this question they your honors remanded you vacated it and you remanded it reconsideration under Shirley so even though Shirley says that it's just preferable it's a very very strong preference if you will that it be and in this case it would allow HL to to have that opportunity file a new motion did that answer your question that seems to me key that the opponent suggests that a remand means nothing it's just pro forma and it would be a waste of judicial resources and you're saying something I think very significantly different that all of the issues we back on the table if in the first go-around counsel consulted with this client and the client said I have no other issues to raise and when they had the hearing then counsel filed a certificate now it comes back a whole new argument come up I said what you're saying possibly and that's what happened in Shirley though the first time around I think it was in 1995 there was no certificate filed at all and the court sent it back and it was given the opportunity to refile or to file a new motion to reconsider I don't I don't recall if that opportunity was taken but the opportunity was given and then it was on the second time around that the courts your honor said you've already had your bite at the apple that's it that's it but this is our first time around for HL and it could be that mr. Anken they could appoint a new attorney they could come up with different issues that mr. Anken did not see so it is an important step it is not a useless gesture it's not a futile gesture it provides that protection that the rules that are promulgated by this court and by our Constitution that a person who is pleading guilty or a juvenile who is admitting to an offense they are guaranteed their due process rights they are guaranteed that their plea is being taken into consideration from start to finish from rule 402 to rule 604 D 605 and 660 those are not meaningless words if there's an amendment why would it not still require a reversal in this case since we would be acknowledging that surely had indicated the difference between must and should oh I'm saying it it would it would it would require that this case go back even if there was an amendment because surely it surely is clear in my opinion it when you look at the the Oxford Dictionary definition of should the first definition is that it's obligation it's not a suggestion it's not a maybe let's do this sometime in the future when a parent tells their kid to go clean their room and says you should go clean your room that kid knows they better get their butt up to the room and clean it that's what this court did and surely without using the word must but if we disagree with you and think that going forward we agree it should have been most I'm not saying that's where we're going I mean how does that help your client are you saying that if it if if we say if if we disagree with you on your proposition as to how strong Shirley was it still didn't mandate it why doesn't the state win in this case going forward the rule is going to be either amended at some time or this case would make surely mandatory you know the the worry and surely would be more must I think it's not only surely though it's James one in James one the court also had that language so you're talking about case law going back to 19 but nothing in the rule nothing specifically you know if the court comes out thinking if we're gonna go this way it's going to require an amendment why would that still not in this particular case for your client get your client nowhere because it would be going forward but I think the answer to that comes in and what your honors are saying before about whether or not a rule can be amended actually by amending the rule or amending it via case law and surely did do that I think amending the rule itself would make it that much clearer but surely already did that and surely applies to this case and it should surely does say it should go back I use the word should twice in one sentence there but it shows you the there you go other than that I think we have to also go back to what the reason for the certificate requirement is and I as I said before it is a guarantee to the trial court it is not to the appellate court it's the trial court in the first instance to guarantee that that defendant and that the juvenile in this case that their rights have been protected secondarily it assures the appellate court that there is a clear there it presents a clear record so that the appellate court could then look at the issues but it is primarily an act for the trial court practically speaking if the certificate is filed after the hearing you have an attorney who goes into the clerk's office of the court with a stack of papers for multiple cases files them one by one what is the chance that the certificate itself is going to actually go back to that trial judge after the hearing is over so that the trial judge is going to look at it and guarantee that the rights have been held how are they going to consider things that are off the record when the people are no longer before them if there are no more questions we're asking that the second district be affirmed and if if not that it actually be remanded to the second district for the sentencing question that was raised in our rate thank you please thank your honors so counsel suggested that this rule matters but in doing so she points out the only possible example of when when a properly filed certificate which should it should still be remanded is because counsel has or some other situations that the other requirements of the rule and counsel has an ethical obligation to not only to perform the acts required by rule 604 D but to not lie in the certificate so if if this rule is meant is meant to catch that line there is a remedy for that and it's a it's a post-conviction petition and there's no requirement in rule 604 D that there be a hearing on whether counsel actually complied with the certification requirements or anything of that nature so there's no reason to think that when the certificate is filed there more that the quarter or any whoever would catch it is more likely to catch the defendant's counsel in a misstatement of his certificate and those misstatements should be rare if not non-existent so ultimately this is about form over some substance and there's there's no unless unless counsel has misrepresented himself but even in those cases counsel can misrepresent himself before the certificate or before the hearing or after the hearing and respondents suggest that this was clear from the case law incites to surely in James 1 but omits James 2 which says that the certificate has to be filed before the motion which no one is is now advocating but it's it was not clear to an attorney researching this it's not clear from the face of the rule and it's not clear to an attorney researching this whether surely or James 2 or both apply and that's why if this court decides that not only should counsel file the certificate before the hearing but must file the certificate before the hearing then it should amend the rule to say that this court should also consider the word should as it would because counsel or because respondents essentially suggesting that the that Shirley's language should be incorporated into the rule this court should read the word should as it would read it in a rule or a statute and it's tough to do that because it almost never appears in a rule or a statute but it must mean something different than must and it it reads the natural reading of it is a strong suggestion that counsel should do this so for those reasons we ask the court to reverse the appellate courts judgment and remand for considerations of the merits of the issue thank you thank you case number one one eight five to nine Henry HL will be taken under advisement is agenda number seven mr. McLeish and silver and thank you for your arguments this morning you're excused mr. Marshall the court's going to take a 10-minute