delivered the opinion of the court:
The petitioner, defendant London Collins, appeals from an order of the circuit court of Cook County dismissing his pro se petition for postconviction relief as “patently without merit.” We reverse.
On August 20, 1998, as part of a plea agreement negotiated by appointed counsel, the petitioner pleaded guilty before the trial court to one count of possession of a controlled substance (cocaine) with intent to deliver in violation of section 401(a)(2)(B) of the Illinois Controlled Substances Act (720 ILCS 570/401(a)(2)(B) (West 1994)), a Class X felony offense carrying a minimum prison sentence of nine years. Pursuant to the рlea agreement, a second count of possession of a controlled substance was dismissed. The trial judge entered judgment on the plea and sentenced the petitioner to the minimum prison term of nine years, with credit for time served. The record reflects that no motion to withdraw the plea or notice of appeal was ever filed on the petitioner’s behalf.
On March 16, 1999, the petitioner filed a pro se petition for post-conviction relief pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122 — 1 et seq. (West 1994)), alleging that petitioner “wanted to appeal the case, which my cоunsel told me that he will [sic], But [sic] never did.” Petitioner attached to his petition his own affidavit, attesting that “[a]ll the facts presented are true and correct to the best of my recollection.” No other supporting affidavits accompanied the petition. A reviewing judge summarily dismissed the petition, finding that it was “рatently without merit.” The petitioner appeals from that decision, asserting that the reviewing judge erred in summarily dismissing the postconviction petition where the petitioner had stated the “gist of a meritorious constitutional claim.”
On October 10, 2000, we issued an order in this matter pursuant to Supreme Court Rule 23. 166 Ill. 2d R. 23. Both parties filed petitions for rehearing which we denied on November 17, 2000. The order of October 10 was subsequently withdrawn to allow consideration of the State’s motion for leave to cite additional authority, which we hereby grant.
I. Sufficiency of Claim
The standard of review of the summary dismissal of a postconviction petition under the Act is de novo. People v. Johnson,
The trial court’s consideration of a petition under the Act is a three-step process. People v. Anderson,
In order to survive summary dismissal, a petitioner under the Act need only assert “the gist of a constitutional claim.” People v. Gaultney,
Under the rule in Strickland v. Washington,
“[T]he defendant pro se needs only to allege a violation of his sixth amendment right to effective assistance of counsel, due to the attorney’s failure to preserve appeal rights, and allege whatever grounds he or she would havе had to withdraw his or her plea of guilty had a proper motion to withdraw been filed by defendant’s counsel prior to the filing of a notice of appeal. At the hearing on the post-conviction petition, the two-pronged test laid down in Strickland v. Washington will apply to determine if in fact the defendant has been deprived of effective assistance of counsel.
The first prong, whether the attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms, will require a minimal factual basis. The questions will be: Did the defendant communicate a desire to appeal? Was counsel appointed? Did counsel fail to follow Rule 604(d)? The second prong, whether there is a reasonable probability that, ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different,’ will need to show the merits of defendant’s grounds to withdraw the plea.” People v. Wilk,124 Ill. 2d 93 , 107-08 (1988).
In People v. Moore,
In its motion for leave to cite additional authority, the State directs us to the recent decision of the Illinois Supreme Court in People v. Edwards, No. 87930 (November 16, 2000). 1 In Edwards, the petitioner, who was represented by appointed counsel, entered into a negotiated guilty plea on a chargе of possession of a controlled substance with intent to deliver. No motion to withdraw the guilty plea or notice of appeal was ever filed on the petitioner’s behalf. Edwards, slip op. at 1. The petitioner filed a pro se postconviction petition, alleging:
“ T requested Atty. Lenik to file an аppeal after the judge told me that I could do so. Atty. Lenik stated, in regard to the appeal, quote [sic] On what grounds? unquote [sic], Atty. Lenik had taken it or decided for herself not to file an appeal in spite of my numerous requests to.’ ” Edwards, slip op. at 2.
The trial court, apparently construing the languagе of the petition as an ineffective assistance of counsel claim predicated on petitioner’s failure to withdraw his guilty plea, ruled that petitioner’s claim was without merit “because petitioner failed to demonstrate that he had any basis for withdrawing his guilty plea.” Edwards, slip op. at 2. The apрellate court affirmed, distinguishing Moore (i.e., requiring a showing of prejudice under Strickland) on the grounds that the defendant in Moore was convicted, not after entry of a negotiated plea, but after trial. People v. Edwards,
On aрpeal to the Illinois Supreme Court, the State argued that dismissal of the petitioner’s postconviction petition was proper where the petitioner failed to allege any basis for withdrawal of his guilty plea. The petitioner responded that, in deciding Moore, the court changed the rule in Wilk аnd that petitioner was therefore no longer required to allege grounds for the withdrawal of his guilty plea in order satisfy the second (prejudice) prong of the Strickland test. Edwards, slip op. at 4.
The court recognized the ministerial nature of the filing of a notice of appeal in the criminal context, аs compared with the nonministerial and mandatory nature of the filing of a motion to withdraw a guilty plea (Edwards, slip op. at 5; 145 Ill. 2d R 604(d)), and voiced no objection to the approach of the lower courts in construing the postconviction petition as a claim for ineffective assistance arising from сounsel’s failure to withdraw petitioner’s guilty plea. We so construe the petition before us.
Without further comment on either Wilk or Moore, the Edwards court held that petitioner’s failure to give grounds for withdrawal of his guilty plea to his trial counsel should be considered, not under the prejudice prong of the Strickland test, but under the performance prong — whether counsel’s representation “fell below an objective standard of reasonableness.” Edwards, slip op. at 4; Strickland,
“[TJrial counsel’s failure to file a motion to withdraw [petitioner’s] guilty plea was not unreasonable. We refuse to create a rulе which would require defense counsel to invent grounds for withdrawal of a defendant’s guilty plea when defendant fails to provide counsel with an articulable basis for doing so and he offers none in his [pro se] post-conviction petition.” Edwards, slip op. at 5.
The court then affirmed the dismissal of petitioner’s postconviction petition as frivolous and patently without merit. Edwards, slip op. at 6.
We find that there is a fundamental difference between the allegations at issue in Edwards and those in the case before us. As a result, Edwards may be distinguished on its facts. In Edwards, the petitioner alleged that when he requested that his counsel appeal his conviction, his counsel responded, “On what grounds?” Edwards, slip op. at 2. This response may be construed to mean either that counsel was unaware of any such grounds or that counsel was of the opinion that no such grounds existed. The petitioner in the case before us, however, has alleged that upon requesting that counsel appeal his conviction, counsel told the petitioner that he would do so. Although the petitioner does not quote counsel’s exact words, we may infer that counsel failed to qualify or limit his agreement to appeal. “In reviewing the dismissal of a [postcоnviction] petition, the appellate court must look to allegations contained in the petition, construed liberally in favor of petitioner, and as set forth in light of the record and transcript. [Citation.] Pro se petitions also require a more liberal reading than is applied to formal pleаdings prepared by counsel. [Citations.]” (Emphasis added.) People v. Smith,
Edwards requires us to consider the petitioner’s failure to allege grounds for the withdrawal of his guilty plea in his postconviction petition under the performance prong of the Strickland test. Edwards, slip op. at 5. We must therefore decide whеther the allegation that counsel failed to perfect the petitioner’s appeal after specifically agreeing to do so, standing alone, is sufficient to state a claim that counsel’s representation “fell below an objective standard of reasonableness” under Strickland,
Bearing in mind the low pleading threshold required under the first stage of the Act (Gaultney,
II. Affidavits
The Act requires that all petitions must be “verified by affidavit.” 725 ILCS 5/122 — 1(b) (West 1994). The petition before us is so verified. The Act further requires that the petition “shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.” 725 ILCS 5/122 — 2 (West 1994). The petition before us is accompanied only by petitioner’s own affidavit attеsting to the truth of the facts presented; no additional affidavits, records or other supporting evidentiary materials are present and the petitioner offers no explanation for the absence of such materials.
The fact that the record before us does not present other affirmativе evidence in support of the petitioner’s claim is unsurprising. The petitioner is incarcerated, indigent and apparently barely literate. The only people likely to have been present to witness the alleged conversation were the petitioner himself and his attorney. The petitionеr has already stated in his petition that such a conversation took place. He has attested to the truth of this statement by means of a sworn affidavit. To rigidly require a pro se petitioner under these circumstances to present separate affidavits and/or other evidentiary matter regarding а conversation at which only petitioner and his attorney were present would be both oppressive and unfair. Compare People v. Dredge,
The petition before us, verified by sworn affidavit, never progressed beyond the first stage of consideration under the Act. 725 ILCS 5/122— 2.1(a)(2) (West 1994). We find that, under the circumstances before us, the petitioner’s failure to submit аdditional affidavits with his petition was justified. Because we find that the petitioner satisfied his burden under the Act at the first stage of consideration, the petition was sufficient to survive summary dismissal. 725 ILCS 5/122 — 1, 122 — 2 (West 1994).
For the foregoing reasons, we reverse the circuit court’s order dismissing the petition as “patently without merit.” On remand, the trial cоurt is directed to appoint counsel to represent the petitioner with respect to his petition for postconviction relief and to docket this matter for further proceedings in accordance with sections 122 — 4 through 122 — 6 of the Act. 725 ILCS 5/122 — 4 through 122 — 6 (West 1994).
Reversed and remanded, with directions.
McNULTY, EJ., and O’MARA FROSSARD, J., concur.
Notes
Editor’s note: Rehearing was allowed on January 29, 2001. The opinion filed after rehearing is published at