People v. Komes
2011 IL App (2d) 100014
Ill. App. Ct.2011Background
- Second-stage postconviction petition under 725 ILCS 5/122-1 et seq. filed; trial court appointed postconviction counsel after finding petition not first-stage dismissal.
- Counsel sought to withdraw citing Greer; court granted withdrawal and then dismissed petition on State’s motion.
- Record lacked clear Rule 651(c) compliance and did not show all claims were frivolous.
- Greer requires a proper motion to withdraw plus demonstration of Rule 651(c) compliance and frivolous claims.
- Court vacated the withdrawal grant and dismissal and remanded to require counsel to demonstrate 651(c) compliance on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether withdrawal complied with Rule 651(c) and Greer. | People asserts compliance; records show counsel reviewed but not clearly stated. | Komes argues withdrawal deficient under Greer. | Vacated withdrawal and remanded for compliance. |
| Whether the record shows all petition claims were frivolous. | State contends claims frivolous on record. | Komes contends potential nonfrivolous claims exist. | Remanded to assess frivolity with 651(c) compliance. |
| Whether the court should affirm dismissal notwithstanding deficient motion based on Greer. | Greer permits affirmance if 651(c) complied and claims frivolous. | Greer not satisfied; cannot affirm. | Remand required; não affirm on this basis. |
| What should happen on remand regarding counsel’s duties under 651(c). | Counsel must demonstrate consultation, record review, and amendments. | Counsel must properly document and tailor amendments. | Remand with directive to require 651(c) documentation and demonstrate frivolity of claims. |
Key Cases Cited
- People v. Greer, 212 Ill.2d 192 (Ill. 2004) (standard for withdrawal of counsel and 651(c) compliance)
- People v. Johnson, 154 Ill.2d 227 (Ill. 1993) (duty to obtain affidavits and amend petitions)
- People v. Davis, 156 Ill.2d 149 (Ill. 1993) (counsel not required to generate new claims but must identify contentions)
- People v. Waldrop, 353 Ill. App.3d 244 (Ill. App. 2004) (illustrates deficient assistance when evidence of sought affidavits is lacking)
- People v. McNeal, 194 Ill.2d 135 (Ill. 2000) (ethical duties of counsel in postconviction review)