THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHANNON D. JOHNSON, Defendant-Appellant.
No. 5-14-0486
APPELLATE COURT OF ILLINOIS FIFTH DISTRICT
February 16, 2018
2018 IL App (5th) 140486
Honorable Kelly D. Long, Judge, presiding.
Appeal from the Circuit Court of Montgomery County. No. 12-CF-7
Justices Moore and Overstreet concurred in the judgment and opinion.
OPINION
¶ 1 The defendant, Shannon D. Johnson, pled guilty to one count of aggravated participation in methamphetamine manufacturing (
¶ 2 In January 2012, police obtained a warrant to search the defendant‘s property. The warrant was supported by a tip from a confidential informant as well as police surveillance of the property. The informant told police that he had observed the defendant manufacturing methamphetamine in a camper with a codefendant, Renee Price. The search warrant authorized the search of property located at “315 West Barry Street, Witt, Montgomery County, Illinois, described as follows: A yellow vinyl-sided single-wide trailer with a white and yellow older camper trailer on the property and a white Dodge pickup truck.”
¶ 3 When officers executed the search warrant, they discovered items used in the manufacture of methamphetamine in both the trailer and the camper; they did not find any incriminating evidence in the pickup truck. On January 9, 2012, the State filed a two-count information, charging the defendant with aggravated participation in methamphetamine manufacturing (id.) and participation in methamphetamine manufacturing (id. § 15(a)(1)).
¶ 4 On August 16, 2012, the defendant filed a motion to suppress evidence and quash his arrest. He alleged that, although the camper searched by police matched the physical description of the camper identified in the search warrant, it was not located on 315 West Barry Street, the property identified in the warrant. He argued that the search therefore violated the “particularity requirement” of the fourth amendment. See People v. Gonzalez, 316 Ill. App. 3d 354, 360 (2000) (explaining that a search warrant “must state with particularity the place to be searched“).
¶ 5 On the same day, the defendant filed a motion to disclose the identity of the confidential informant. He alleged that the informant‘s “credibility was at stake at the time of the issuance of the search warrant.” He requested the disclosure of information about the confidential source,
¶ 6 The following day, August 17, the court held a motion hearing. Inspector Justin Gonzalez of the Southern Illinois Drug Task Force was the sole witness. He testified that the confidential informant described the camper in detail and told police that the defendant and Renee Price were cooking methamphetamine in it. Inspector Gonzalez further testified that he had been informed both that the defendant owned the camper and that he was using it to manufacture methamphetamine.
¶ 7 Defense counsel attempted to ask Inspector Gonzalez questions related to the reliability of the confidential source. However, the State objected to these questions on the basis of relevance. In response, defense counsel reminded the court that there was an issue concerning the informant‘s credibility. The court asked counsel where in his motion to suppress those allegations were, to which counsel replied, “It‘s not in my motion.” The court sustained the objections.
¶ 8 Inspector Gonzalez was shown an aerial photograph taken a few days before the hearing. In the photograph, the camper appeared to be located on a property across the street from the defendant‘s property. Inspector Gonzalez stated that the camper was “definitely” not in that location when he executed the search warrant. He described the location of the camper in detail. He testified that the camper was parked near a fire pit, which was located between the camper and the trailer. He further testified that a cable was set up as a dog run, with one end of the cable attached to the camper and the other end attached to the trailer. Inspector Gonzalez noted that he
¶ 9 After Inspector Gonzalez testified, the court indicated that the description of the camper included in the search warrant was sufficiently specific to support a valid warrant. However, the court did not rule on the defendant‘s motion prior to taking a recess. After the recess, the defendant withdrew his motion to suppress and waived his right to a jury trial. Defense counsel indicated that he anticipated that the defendant would plead guilty. On September 26, 2012, the defendant pled guilty pursuant to a negotiated plea agreement. In accordance with the agreement, he was sentenced to 10 years in prison, a $3000 drug assessment fee, and the forfeiture of his truck.
¶ 10 On June 18, 2013, the defendant filed a pro se petition for relief from judgment pursuant to
¶ 11 Along with his
¶ 12 On December 8, 2013, Grigsby filed a motion to withdraw. He argued that the defendant‘s petition was, in substance, a postconviction petition. Grigsby noted that during the plea proceedings, the defendant did not object to the factual basis for his plea and did not move to withdraw his plea. Moreover, when asked by the court if he was happy with the representation of plea counsel, the defendant said “Yes.” Grigsby asserted that, based on his review of the record, he could find no basis to argue that the defendant‘s plea was the result of a substantial denial of a constitutional right, as is required under the Post-Conviction Hearing Act (
¶ 13 While Grigsby‘s motion to withdraw was pending, the defendant filed three pro se pleadings. On December 27, 2013, he filed a motion for leave to amend. In it, he asked the court for leave to amend, and stated, “Defendant moves this Honorable Court for Post-Conviction relief.” On February 21, 2014, he filed a pro se postconviction petition and a pro se motion, requesting the appointment of a different attorney. In his postconviction petition, the defendant asserted that the trial court did not make an adequate inquiry into the factual basis for his plea, that he was “pressured” into pleading guilty because his attorney believed that was the “only possible outcome,” and that he received ineffective assistance of counsel. The defendant advanced three arguments in support of his ineffective assistance claim. He argued that the camper was not on his property at the time it was searched, although the search warrant specified that the camper to be searched was located on his property. He also asserted that the confidential source was not reliable and that counsel failed to object to forfeiture of the defendant‘s vehicle.
¶ 14 The pending motions came for a hearing six days later, on February 27. At the outset, the court called attention to the defendant‘s motion to amend, noting that the defendant wanted “to change his petition under
¶ 15 The court then asked the defendant if he wanted to represent himself or if he wanted another attorney appointed to represent him. The defendant stated that he wanted the court to appoint a new attorney. The court asked the state‘s attorney his position on the matter. The state‘s attorney informed the court that he had reviewed the defendant‘s postconviction petition. He stated, “I *** don‘t believe that it has any merit. I don‘t know if this court—has the court reviewed—I believe we would be at the first stage of a post-conviction petition because it‘s just now been filed.” He argued that, because the defendant‘s pro se petition was at the first stage of postconviction proceedings, it was up to the court to review the petition and either “let it continue or dismiss it sua sponte.” The court replied, “I‘m not going to dismiss it on that premise.” The court then appointed Public Defender Stacey Cellini Hollo to represent the defendant.
¶ 16 On May 16, 2014, Hollo filed a motion to withdraw. She noted that the record was “void of any indication as to whether or not the court found the amended pleadings set forth the gist of a meritorious claim prior to appointing counsel.” Hollo certified that she consulted with the defendant; reviewed the entire court file, including the transcripts of the proceedings; examined
¶ 17 In a supporting memorandum, Hollo explained that after consulting with the defendant, she determined that he wanted her to raise four claims, each of which she found to be without merit. The first of these claims was a contention that trial counsel was ineffective for failing to undertake an independent investigation about the ownership of the camper and the location of the property line. Hollo believed that this claim lacked merit because trial counsel told her that he did look into the defendant‘s claims, Chief Woods told her that the basis for seeking the search warrant was that the defendant held the camper out as being his own, and these statements were supported by the hearing transcripts. The next issue the defendant wanted Hollo to present was a claim that his guilty plea was not voluntary; however, she found that this claim was refuted by the transcript of the plea hearing. The third claim the defendant wanted Hollo to present was an argument that trial counsel was ineffective for failing to review discovery documents with him. Hollo found this claim to be without merit because trial counsel denied it and the defendant never voiced this concern during the plea proceedings. Finally, the defendant wanted Hollo to present his contention that trial counsel was ineffective for failing to present motions; however, Hollo found that this claim, too, lacked merit because it was refuted by the record.
¶ 18 On July 23, 1014, the defendant sent a letter to the court. In it, he asked that the court deny Hollo‘s motion to withdraw. Alternatively, he asked that the court appoint a new attorney to represent him if it did allow Hollo to withdraw. He asserted that he believed that his case had
¶ 19 On August 16, 2014, the court held a hearing on Hollo‘s motion to withdraw. The court asked both the state‘s attorney and the defendant if they had any objections. The state‘s attorney replied, “No, sir.” The defendant replied, “Just I believe my case had merit, Your Honor.” The court responded, “No, we are not on that part now.” The court explained that counsel “has a professional opinion” that the petition lacks merit and “doesn‘t feel that she can ethically amend [the] petition to say what you want her to say *** so she wants to withdraw.” The defendant then stated, “If she wants to withdraw, I have no reason to—.” At this point, the court interrupted the defendant and granted Hollo‘s motion to withdraw.
¶ 20 The court informed the defendant that if he requested the appointment of a third attorney to represent him, the court would deny that request. The court explained that the right to counsel in postconviction proceedings is statutory rather than constitutional and that two attorneys had already found the defendant‘s claims to be without merit. The defendant asked to proceed that day with a hearing on his petition, noting that if the court dismissed his petition, this would allow him to “just send it to the appeals” court. The court denied that request, explaining that it could not rule until the State had an opportunity to file a response to his petition. The State subsequently filed a motion to dismiss the defendant‘s petition, which the court granted. This appeal followed.
¶ 21 Before addressing the parties’ arguments, we believe that an overview of the relevant law would be helpful. The Post-Conviction Hearing Act (
¶ 22 If the court does not dismiss the petition at the first stage, it must docket the matter for second-stage proceedings. If the defendant is indigent, the court must appoint an attorney to represent him. York, 2016 IL App (5th) 130579, ¶ 15. At this stage, counsel may file an amended petition for the defendant, and the State may respond by filing either a motion to dismiss or an answer. Id. ¶ 16. The petition will survive a motion to dismiss and advance to the third stage if the defendant has made a “‘substantial showing of a constitutional violation.‘” Id. (quoting People v. Little, 2012 IL App (5th) 100547, ¶ 12). The third stage generally involves an evidentiary hearing on the defendant‘s claims. Id.
¶ 23 Two features of the Post-Conviction Hearing Act are particularly pertinent to the questions before us in this appeal. First, the postconviction court must conduct its first-stage review within 90 days after the petition is filed. After 90 days, the court may not summarily dismiss the petition. Thomas, 2013 IL App (2d) 120646, ¶ 5. Thus, the petition must be advanced to the second stage of postconviction proceedings if the court has not reviewed the petition within that time. Id. As a result, some postconviction petitions will inevitably advance to the second stage even though they are frivolous and patently without merit. See People v. Greer, 212 Ill. 2d 192, 204 (2004).
¶ 24 The second important feature of the Post-Conviction Hearing Act is that it provides a right to counsel. Because the source of the right to postconviction counsel is statutory rather than constitutional, both the duration of the right and the level of assistance guaranteed are limited to what is mandated under the act. Id. at 203-04. The right to postconviction counsel thus differs from the right to counsel at trial or on a direct appeal in two ways. First, the right to counsel attaches only once the petition has advanced to the second stage. Id. at 203 (citing
¶ 25 Providing reasonable assistance requires postconviction counsel to perform certain duties outlined in Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). That rule requires postconviction counsel to consult with the defendant to determine the issues the defendant wants raised, to examine the record of the trial or plea proceedings, and to make any amendments to the petition “‘that are necessary for an adequate presentation of [defendant‘s] contentions.‘” Greer, 212 Ill. 2d at 205 (quoting Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984)). However, an attorney is not required to amend the petition to present claims that are frivolous; indeed, an attorney may not ethically advance arguments she knows to be meritless. Id. at 205-06. This presents a dilemma when a petition that is in fact frivolous and patently without merit has advanced to the second stage because the court failed to consider it within 90 days. See id. at 206-07. As we will discuss later, counsel may face a similar dilemma if a petition is advanced to the second stage because it appears meritorious on its face, but turns out to be frivolous. Our supreme court addressed postconviction counsel‘s obligations under these circumstances in Greer and People v. Kuehner, 2015 IL 117695.
¶ 26 In Greer, the defendant‘s pro se petition did not come to the attention of the trial court for seven months after it was filed. Greer, 212 Ill. 2d at 194-95. The delay occurred because the judge who presided at the defendant‘s trial had since retired, and the clerk of the court failed to bring the petition to the attention of the judge assigned to consider it. Id. at 200. Because the petition had not been summarily dismissed within 90 days, the court docketed the matter for second-stage proceedings and appointed counsel to represent the defendant. Id. at 195. Appointed counsel later filed a motion to withdraw, asserting that he could find no meritorious issues to present for review. The postconviction court granted the attorney‘s motion to withdraw and dismissed the defendant‘s petition sua sponte. Id.
¶ 27 On appeal, the Fourth District held that postconviction counsel may be allowed to withdraw if he can demonstrate to the court that there are no meritorious claims to present on behalf of the defendant. However, the Fourth District also held that the postconviction court erred by dismissing the petition sua sponte because its authority to do so expired 90 days after the petition was filed. Id.
¶ 28 The defendant appealed to the supreme court, arguing that the postconviction court was not authorized to allow counsel to withdraw under the Post-Conviction Hearing Act. He argued that by allowing counsel to withdraw, the court deprived the defendant of his statutory right to the assistance of counsel. Id. at 195-96. The crux of this argument was that because the Post-Conviction Hearing Act does not contain any provisions expressly allowing counsel to withdraw, it must be construed as prohibiting counsel from withdrawing. Id. at 207. The supreme court explained, however, that “[l]egislative ‘silence is not an unmistakable implication.‘” Id. (quoting Armstrong v. Resolution Trust Corp., 157 Ill. 2d 49, 60 (1993)).
¶ 29 In rejecting the defendant‘s interpretation, the supreme court repeatedly emphasized that the petition in that case had been advanced to the second stage without the postconviction court determining that it set forth the gist of a constitutional claim. Id. at 200, 202; see also Kuehner, 2015 IL 117695, ¶ 19 (emphasizing that the Greer court “noted over and over again [that] the *** petition in that case arrived at the second stage not because the trial court made an affirmative finding as to its merit but rather only because the trial court failed to make any assessment of its merit in the prescribed statutory period” (emphasis in original)). The court explained that under such circumstances, appointed counsel “may well find that he or she represents a client attempting to advance arguments that are patently without merit or wholly frivolous, a client whose petition would have been summarily dismissed had the circuit court timely considered the merits of the petition.” Greer, 212 Ill. 2d at 207.
¶ 30 The court noted that, as we have discussed, counsel is not required to “advance frivolous or spurious claims on [a] defendant‘s behalf.” Id. at 205. The court emphasized that counsel may not ethically present claims counsel knows to be frivolous. Id. at 206, 209. The court recognized the dilemma that would be posed if postconviction counsel were not permitted to withdraw upon finding that a defendant‘s claims are frivolous. Id. at 206 (asking, “What is defense counsel to do after he or she determines that defendant‘s petition is frivolous? Is counsel to stand mute at all subsequent proceedings?“).
¶ 31 The court also pointed out that appellate attorneys are allowed to withdraw as counsel if they find no meritorious claims to present on behalf of their clients even though “the level of assistance required [on a direct appeal] is of a higher magnitude and [is] of constitutional dimension.” Id. at 209 (citing People v. Owens, 139 Ill. 2d 351, 364-65 (1990)). The court thus concluded that “the legislature did not intend to require appointed counsel to continue
¶ 32 The Greer court went on to consider whether counsel‘s motion to withdraw was properly granted under the facts before it. The court explained that each of the claims in the defendant‘s petition were “clearly refute[d]” by the record in the plea proceedings. Id. at 210-11. The court therefore agreed with counsel‘s determination that the defendant‘s claims were frivolous and patently without merit. Id. at 210. The court also noted that it appeared from the record that counsel had complied with the requirements of Rule 651(c). Id. at 212. The court concluded that, under these circumstances, counsel was properly allowed to withdraw. Id.
¶ 33 The Greer court provided little guidance for how this holding should apply in other cases. See Kuehner, 2015 IL 117695, ¶ 16 (acknowledging that its Greer holding led to confusion). The court emphasized in Greer that “an attorney moving to withdraw should make some effort to explain why defendant‘s claims are frivolous or patently without merit.” (Emphasis in original.) Greer, 212 Ill. 2d at 212. Counsel in Greer did not do this. Instead, he explained why he was unable to “‘properly substantiate‘” each claim. Id. at 195. The supreme court emphasized that this was not the appropriate standard (id. at 211-12) and stated that the “procedure in the circuit court [left] something to be desired” (id. at 212). The court nevertheless upheld the decision to grant counsel‘s motion to withdraw because it appeared that counsel had complied with Rule 651 and the defendant‘s claims were refuted by the record.
¶ 34 In Kuehner, the supreme court acknowledged that its conclusion in Greer “generated some measure of confusion” and led to a split of authority within the appellate court. Kuehner, 2015 IL 117695, ¶ 16. The court noted that some panels of the appellate court have interpreted Greer as allowing counsel to withdraw as long as the record shows both that counsel complied
¶ 35 The difference, the court explained, is that in Kuehner, unlike in Greer, the trial court explicitly found that the defendant‘s pro se petition was not frivolous or patently without merit. Id. ¶ 8. The supreme court found that because of this, “the burdens and obligations of appointed counsel” in Kuehner were “decidedly higher than those that were present in Greer.” Id. ¶ 18. This was so, the court explained, because once a postconviction court has “made an affirmative determination that, on its face, the petition [is] neither frivolous nor patently without merit,” counsel may not simply “second guess” the court‘s determination. Id. ¶ 20. Rather, counsel‘s role is to clean up the defendant‘s contentions so that they may be presented to the court as effectively as possible. Id.
¶ 36 The court acknowledged, however, that in some cases, appointed counsel might “discover[ ] something that ethically would prohibit counsel from *** presenting the defendant‘s claims to the court” in spite of the court‘s initial determination that the petition was not frivolous or patently without merit on its face. Id. ¶ 21. The supreme court explained that in such cases, counsel may not seek to withdraw merely by asserting that the petition was frivolous and patently without merit. Instead, the court held, “counsel bears the burden of demonstrating, with respect to each of the defendant‘s pro se claims, why the trial court‘s initial assessment was incorrect.” Id.
¶ 37 The supreme court likened a motion to withdraw under these circumstances to a motion to reconsider. Id. A motion to reconsider brings to the court‘s attention changes in law, factual matters that were not known to the court at the time it ruled, or errors of law the court made in its initial ruling. Similarly, “a motion to withdraw filed subsequent to a trial court‘s affirmative decision to advance the petition to the second stage *** seeks to bring to the trial court‘s attention information that was not apparent on the face of the pro se petition” when the court made its initial determination. Id.
¶ 38 We note that in Kuehner, the court focused on the obligations of appointed counsel in filing a motion to withdraw after the court has found the petition adequate to survive first-stage dismissal. See id. ¶¶ 18, 20-22. However, we believe that implicit in its holding is a requirement that the postconviction court must actually determine that the petition is frivolous and patently without merit before allowing counsel to withdraw. As we discussed earlier, the court analogized such a motion to a motion to reconsider. Id. ¶ 21. The purpose of a motion to reconsider is, of course, to persuade the court that its initial ruling should be overturned. Similarly, the Kuehner court held that “counsel bears the burden of demonstrating” to the court that its initial determination on the merits was wrong. (Emphasis added.) Id. In addition, the court noted that “it is not asking too much to have counsel simply reduce his or her findings to writing and to include them in the motion to withdraw so that both the trial court and the reviewing courts have a basis for evaluating counsel‘s conclusion.” Id. ¶ 22. With these principles in mind, we turn our attention to the questions involved in the matter before us.
¶ 39 Resolution of this case requires us to answer three questions. First, did the postconviction court advance the defendant‘s petition to the second stage because it found that the petition adequately stated the gist of a constitutional claim or because it failed to act on the petition
¶ 40 We first address the parties’ arguments concerning the reasons the court advanced the defendant‘s petition to the second stage. We note that this case is markedly different from both Greer and Kuehner in this regard. In Greer, the postconviction court stated on the record that the petition was advanced to the second stage only because the court did not review it within 90 days. Greer, 212 Ill. 2d at 200. In Kuehner, the postconviction court made an express finding that the petition was not frivolous or patently without merit. Kuehner, 2015 IL 117695, ¶ 8. Here, the court made no such express statements.
¶ 41 The defendant argues that although the court never expressly ruled that his petition was not frivolous or patently without merit, it “did so by implication” when it appointed counsel within 90 days. This is so, he contends, because the Post-Conviction Hearing Act only provides a right to counsel once the court either makes that determination or fails to rule within 90 days. At oral argument he explained, “There is no third option.” As such, the defendant contends, counsel was required to comply with the standards of Kuehner before the court could grant her motion to withdraw. The State, by contrast, argues that there is no indication that the postconviction court found that the defendant‘s petition stated the gist of a constitutional claim. The State asserts that it is possible for a postconviction court to affirmatively advance a petition to the second stage without finding that it has merit.
¶ 42 We agree with the defendant that we may presume that the court found that his petition was not frivolous or patently without merit, although we reach this conclusion for reasons that are different from those he advances. In most cases, if a court appoints counsel and dockets the matter for further proceedings within 90 days, we can safely infer that the court did in fact find that the petition stated the gist of a constitutional claim even without an express statement to that effect. In light of the unusual procedural history of this case, however, it is unclear from the record whether the court did in fact make this determination. For the reasons that follow, we believe it is appropriate to resolve this question in favor of the defendant and presume that the court made this determination.
¶ 43 Much of the confusion stems from the fact that the defendant initially filed a
¶ 44 A circuit court has the authority to treat a
¶ 45 The court in this case did not expressly state that it would treat the defendant‘s petition as a postconviction petition. However, the court also did not grant the State‘s motion to strike the petition; it appointed Grigsby to represent the defendant, knowing that in order to present the defendant‘s claims, Grigsby would need to bring them under the Post-Conviction Hearing Act. By appointing counsel under these circumstances, the court took affirmative steps that in effect advanced the petition to the second stage of postconviction proceedings.
¶ 46 On September 9, 2013, Grigsby appeared in court with the defendant for the first time. Grigsby stated, “I think this is going to be a post-conviction petition, Judge.” He explained that he needed time to review the “considerable paperwork” sent to him by the defendant before he could amend the petition. He therefore asked that the matter be set for further pretrial proceedings. As discussed previously, Grigsby filed his motion to withdraw in December 2013. Shortly thereafter, the defendant filed a petition to amend, expressly invoking the Post-Conviction Hearing Act.
¶ 47 Considering this history, it is possible that the reason the court appointed Grigsby to represent the defendant on July 22, 2013—within 90 days after the defendant filed his pro se petition—was that the court found that (1) it would be appropriate to treat the petition as a postconviction petition and (2) the petition stated the gist of a constitutional claim. It is also
¶ 48 Although it is impossible to discern on this record whether the court did, in fact, review the petition and find that it stated the gist of a constitutional claim, as stated previously, we believe the defendant must be given the benefit of this doubt and the higher standard of Kuehner should apply. We reach this conclusion for three reasons.
¶ 49 First, the procedures followed by the court throughout the proceedings below are consistent with this presumption. Unlike what happened in Greer, the defendant‘s petition in this case came to the attention of the court immediately. The court held a status hearing on the petition the day after it was filed. The court was aware that the allegations in the petition were cognizable under the Post-Conviction Hearing Act at least as early as the July 22, 2013, hearing at which the state‘s attorney raised this point—only 34 days after the petition was filed. The defendant was present at that hearing. The court could have told him that it intended to recharacterize the petition as a postconviction petition in order to avoid granting the State‘s motion to strike on the grounds that the petition raised claims that were not cognizable in
¶ 50 Second, the supreme court‘s rationale for imposing less exacting obligations on attorneys in circumstances similar to those involved in Greer does not apply to this case. In Kuehner, the court explained that the lower standard was warranted in Greer because “appointed counsel was the very first person to lay eyes on and assess the pro se petition.” (Emphasis in original.) Kuehner, 2015 IL 117695, ¶ 19. In the instant case, that is not true.
¶ 51 Third, we believe that a contrary conclusion would be at odds with the rights the Post-Conviction Hearing Act is meant to protect. As the Kuehner court observed, an attorney‘s second-stage motion to withdraw is a request to deny the defendant “the first form of relief afforded by the [Post-Conviction Hearing] Act, namely, the appointment of counsel” once a court has granted that right. Id. ¶ 22. We must also emphasize that at the second stage of postconviction proceedings, a petitioner must meet a higher standard to survive dismissal. As previously discussed, while a petition need only set forth the gist of a constitutional claim to survive first-stage dismissal (York, 2016 IL App (5th) 130579, ¶ 15), it must make a substantial showing that a constitutional violation occurred in order to survive second-stage dismissal (Little, 2012 IL App (5th) 100547, ¶ 12). Moreover, a second-stage petitioner must make this showing in the face of adversarial participation by the State. See York, 2016 IL App (5th) 130579, ¶ 16. Obviously, a pro se petitioner is at a distinct disadvantage under such circumstances.
¶ 52 We recognize that there are cases in which the situation we have described is inevitable because appointed attorneys may not ethically present claims they know to be meritless. However, we find that under the circumstances of the present case—where the trial court had the opportunity to review the petition within 90 days and where the record does not clearly show that the petition was advanced only because the court failed to do so—appointed counsel must meet the higher standard set forth in Kuehner before the defendant may be denied his statutory right to counsel and placed in the position of having to proceed pro se against the State in second-stage proceedings.
¶ 53 We next consider whether Hollo‘s motion to withdraw was adequate under Kuehner. At the outset, we hasten to point out that Kuehner was decided after the trial court proceedings in this matter were over. Thus, Hollo did not have the benefit of the Kuehner court‘s guidance when she prepared her motion to withdraw. As we have discussed at length, she also did not have the benefit of knowing whether the trial court had, in fact, found that the petition stated the gist of a constitutional claim. Nevertheless, as the State acknowledges, Kuehner is applicable to cases that were pending on appeal when it was decided, including this case. See People v. Richey, 2017 IL App (3d) 150321, ¶ 24 (citing Teague v. Lane, 489 U.S. 288 (1989), and People v. Price, 2016 IL 118613, ¶ 27).
¶ 54 The defendant‘s pro se postconviction petition essentially raises five claims. In it, he reiterates the arguments he raised in his
¶ 55 Finally, we believe that reversal is warranted in this case because there is no indication in the record that the court ever actually considered whether Hollo was correct in asserting that the defendant‘s petition lacked merit. As discussed earlier, the defendant told the court that he believed his petition had merit during the hearing on Hollo‘s motion, to which the court responded, “No, we are not on that part now.” However, that was precisely the question the court was required to answer before allowing Hollo to withdraw. Before a court may grant an attorney‘s motion to withdraw and require the defendant to proceed pro se against a State motion to dismiss, the court must actually evaluate counsel‘s assertions and make its own determination that the petition is frivolous and patently without merit. Instead, the court in this case told the defendant that the merit of his petition was not at issue, asked if the defendant objected to
¶ 56 For the reasons stated, we reverse the court‘s rulings allowing Hollo to withdraw as counsel and granting the State‘s motion to dismiss, and we remand for further second-stage proceedings. See Kuehner, 2015 IL 117695, ¶ 24. On remand, the court should appoint a new attorney to represent the defendant. See id. ¶ 25. If necessary, that attorney may file a motion to withdraw that meets the standards established by the supreme court in Kuehner, and the court may grant the motion if, after evaluating counsel‘s claims, the court finds that the petition is frivolous and patently without merit.
¶ 57 Reversed; cause remanded.
Justices: Honorable Melissa A. Chapman, J. Honorable James R. Moore, J., and Honorable David K. Overstreet, J., Concur
Attorneys for Appellant Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy Defender, Ian C. Barnes, Assistant Appellate Defender, Office of the State Appellate Defender, Fifth Judicial District, 909 Water Tower Circle, Mt. Vernon, IL 62864
Attorneys for Appellee Hon. Christopher Matoush, State‘s Attorney, Montgomery County Courts Complex Building, 120 North Main Street, Hillsboro, IL 62049; Patrick Delfino, Director, David J. Robinson, Acting Deputy Director, Chelsea E. Kasten, Staff Attorney, Office of the State‘s Attorneys Appellate Prosecutor, Fifth District Office, 730 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864