People v. Rice See also supplemental opinion on remand 8/13/97 , 283 Ill. App. 3d 626 ( 1996 )

            Nos. 2--95--0307, 2--95--0308, 2--95--0309 cons.

_________________________________________________________________

                                 IN THE

                       APPELLATE COURT OF ILLINOIS

                             SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE OF            )  Appeal from the Circuit Court

ILLINOIS,                             )  of Lake County.

                                    )

    Plaintiff-Appellee,              )  Nos. 94--CF--2014,

                                     )       94--CF--2017,

    v.                               )       94--CF--2020

                                     )

LEROY RICE,                           )  Honorable

                                     )  Raymond J. McKoski,

    Defendant-Appellant.             )  Judge, Presiding.

_________________________________________________________________

    JUSTICE RATHJE delivered the opinion of the court:     

    Indictments filed on October 5, 1994, charged defendant, Leroy

Rice, with several counts of burglary.  A plea negotiation was

agreed to on November 15, 1994.  In exchange for the defendant's

plea of guilty to four counts of burglary (94--CF--2014 (two

counts); 94--CF--2017; 94--CF--2020), the State agreed to a cap of

six-year terms of imprisonment on all counts to which the defendant

pleaded guilty, with the sentences to run concurrently.  Further,

on January 3, 1995, the State agreed to dismiss the seven remaining

charges of burglary.  The trial court sentenced the defendant to

concurrent five-year terms of imprisonment.  On February 2, 1995,

the defendant's motion to reconsider his sentence was denied.  This

timely appeal followed.

    On appeal, defendant raises one issue, namely, whether the

defendant's cause must be remanded for a new hearing on the

defendant's motion to reconsider his sentence.

    In support of this contention, defendant asserts three bases

for remand, namely, (1) that, in light of Supreme Court Rule

605(b)(5) (145 Ill. 2d R. 605(b)(5)), defense counsel should have

been required to review the sentencing hearing transcripts; (2)

that he was not provided with a copy of his sentencing transcript,

in violation of Rule 605(b)(5); and (3) that his counsel's

certificate failed to comply with the exact requirements of Rule

604(d) (145 Ill. 2d R. 604 (d)).

    Initially, we address defendant's contention that defense

counsel's failure to review the sentencing transcript is ground for

a remand.  Defendant concedes that Rule 604(d) merely requires that

defense counsel review only the court file and the guilty plea

transcript, not the sentencing transcript, even if defendant

challenges only his sentence.  Defendant argues that we should

reject this court's prior determination of the instant issue in

People v. Heinz, 259 Ill. App. 3d 709 (1994).  

    In People v. Heinz, this court wrote:

         "Defendant acknowledges that the language of the rule

    does not also require that defense counsel read the transcript

    of the sentencing proceeding before going forward with his

    motion to reconsider; nevertheless, he asks this court to read

    such a requirement into the rule on the basis of 'symmetry.'

    Thus, he argues that, just as the rule requires defense

    counsel to examine the transcript of a guilty plea proceeding

    as a condition precedent to a hearing on the motion to

    withdraw his plea, so too should counsel be required to

    examine the transcript of the sentencing hearing prior to a

    hearing on the motion to reconsider the sentence.  Defendant

    cites no relevant authority for this court to read such a

    requirement into the rule, and it is not a prerogative of this

    court to amend a rule of our supreme court.  We therefore must

    decline defendant's invitation to do so."  Heinz, 259 Ill.

    App. 3d at 712.

    We see no reason to reject this reasoning.

    In his next argument, defendant initially points out that the

trial court did not provide him with a transcript of the sentencing

hearing prior to the hearing on the motion to reconsider the

sentence.  He then argues that his access to the sentencing

transcript was crucial to enable him to communicate effectively

with counsel regarding the nature of his claims and their factual

basis.

    In response, the State initially points out that defendant

cites no case law in support of this argument.  Moreover, the State

contends that Rule 604(d) is primarily concerned with perfecting a

defendant's rights on appeal and the need to provide defendant with

the necessary transcripts by the time defendant pursues his appeal.

    Our review of the relevant portions of Rules 604 and 605 does

not indicate to us that the transcript of the sentencing hearing is

required for defendant's use at the hearing on the motion to

reconsider the sentence.

    Rule 604(d) provides in pertinent part:

         "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 his plea of guilty and vacate the judgment.

    ***  If the defendant is indigent, the trial court shall order

    a copy of the transcript as provided in Rule 402(e) be

    furnished the defendant without cost.  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 his 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."  145 Ill. 2d R. 604(d).

Further, Rule 605(b)(5) states in pertinent part:

         "In all cases in which a judgment is entered upon a plea

    of guilty, at the time of imposing sentence, the trial court

    shall advise the defendant substantially as follows:

                                  * * *

         (5) that if he is indigent, a copy of the transcript of

    the proceedings at the time of his plea of guilty and sentence

    will be provided without cost to him and counsel will be

    appointed to assist him with the preparation of the

    motions[.]"  145 Ill. 2d R. 605(b)(5).

    Given this language, we will not read into the rules the

requirement that the sentencing transcript must be furnished to

defendant prior to the sentencing hearing.  To do otherwise would

be tantamount to engaging in rulemaking, a function which is solely

the province of our supreme court.  See 134 Ill. 2d R. 3(A)(1)(a).

    Defendant maintains that remand is necessary for a third

reason.  He notes that, under Rule 604(d), defense counsel must

certify that he or she has made any amendments to the post-

sentencing motion that are necessary to present adequately

defendant's claims.  Defendant contends that, in the appeal at bar,

counsel's certificate omits any reference to the "necessary

amendment" portion of the rule.  However, defendant concedes that

this omission came to the trial court's attention and that defense

counsel stated on the record that she did not think any amendments

were required.

    In response, the State notes that the same defense counsel

represented defendant through all phases of the trial court

proceedings.  The State then asserts that it would put "form over

substance" to conclude that the subject omission warrants a

remand.   

    We find that the relevant language of the rule does not

support defendant's contention.  In this case, the rule only

requires defendant's counsel to state that he or she "has made any

amendments" to the motion necessary for adequate presentation of

any defects in those proceedings.  145 Ill. 2d R. 604(d).  This

portion of the rule makes no reference to situations such as this

in which defense counsel has thought it unnecessary to make any

amendments to the motion.  Again, we will not read into the rules

"requirements" that are not explicitly stated.

    We affirm the judgment of the circuit court.

    Affirmed.

    GEIGER and HUTCHINSON, JJ., concur.