FIRST DIVISION
May 31, 2005

No. 1-03-2096

JUSTICE GORDON delivered the opinion of the court:

Petitioner, D'Arthagan Sargent, appeals the summary dismissal of his postconvictionpetition at the second stage of review. He contends that the employment of the summarydismissal procedure, only authorized during the first stage of review by the Post-ConvictionHearing Act (725 ILCS 5/122.2.1(a) (West 2002)), at what was only designated a status hearing,violated his due process rights. He further argues that remand is required because hispostconviction attorney failed to certify that he consulted with petitioner, reviewed the record,and modified the petition as necessary so as to adequately present petitioner's contentions, asrequired by Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). The State concedes that theprocedure employed by the circuit court was improper and that there is no showing of compliancewith Rule 651(c) by postconviction counsel. However, the State contends that any error washarmless as petitioner could under no circumstances have prevailed on the substance of hispetition. We affirm.

I. FACTUAL BACKGROUND

Petitioner was sentenced to a term of 80 years in prison on August 26, 1987, after beingconvicted by a jury of first degree murder. Petitioner's direct appeal was denied in People v.Sargent, 207 Ill. App. 3d 631 (1990). On January 30, 2001, petitioner filed his instantpostconviction petition, alleging that his sentence was based on a finding that the murder wasaccompanied by exceptionally brutal and heinous conduct, a statutory enhancement that wasnever charged in his indictment or submitted to the jury for proof beyond a reasonable doubt. Petitioner therefore contended that his sentence violated the Supreme Court's holding in Apprendiv. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

The circuit court allowed the petition to proceed to the second stage of review andappointed the public defender to represent petitioner in postconviction proceedings. After a seriesof continuances, postconviction counsel and the State appeared before the circuit court on June12, 2003, for a status hearing. Postconviction counsel informed the court that the petition wasbased on Apprendi, and that one of her colleagues at the public defender's office would file asupplemental petition by the next court date. The court, however, in spite of no motion to dismissby the State, indicated that it was ready to dispose of the case at that time. Noting the IllinoisSupreme Court's decision in People v. De La Paz, 204 Ill. 2d 426, 791 N.E.2d 489 (2003), whichbarred retroactive application of Apprendi to cases where direct appeals had been exhausted as ofthe date of the Apprendi decision, the court dismissed the petition. The court denied petitioner'smotion to reconsider on the same grounds.

Leading up to the dismissal, there had been no indication from postconviction counsel ofany meeting with petitioner, nor of any review of his trial record. Postconviction counsel likewisenever filed any certificate to verify compliance with Rule 651(c). Rule 651(c) provides:

"c) Record for Indigents; Appointment of Counsel. Upon the timelyfiling of a notice of appeal in a post-conviction proceeding, if the trial courtdetermines that the petitioner is indigent, it shall order that a transcript ofthe record of the post-conviction proceedings, including a transcript of theevidence, if any, be prepared and filed with the clerk of the court to whichthe appeal is taken and shall appoint counsel on appeal, both without costto the petitioner. The record filed in that court shall contain a showing,which may be made by the certificate of petitioner's attorney, that theattorney has consulted with petitioner either by mail or in person toascertain his contentions of deprivation of constitutional right, hasexamined the record of the proceedings at the trial, and has made anyamendments to the petitions filed pro se that are necessary for an adequatepresentation of petitioner's contentions." 134 Ill.2d R. 651(c).

Petitioner appeals.

II. ANALYSIS

To begin, the State is entirely correct that the petition has no substantive merit. Oursupreme court has conclusively determined that Apprendi cannot form the basis of a collateralattack when a petitioner exhausted his direct appeals prior to the Apprendi decision. De La Paz,204 Ill. 2d 426, 791 N.E.2d 489. Consequently, as under no circumstances, under De La Paz,could the ruling of the circuit court ultimately have been different, in our view, any proceduralerror would have been harmless. See People v. Taylor, 349 Ill. App. 3d 718, 720, 812 N.E.2d581, 583 (2004) ("[w]e may look beyond any alleged procedural defect where, as in this case,defendant's petition raised a pure question of law, was frivolous and completely without merit,and no prejudice resulted from the trial court's dismissal").

Petitioner contends nevertheless that, because of the unforewarned transformation of thestatus hearing into a dispositive proceeding, we are compelled to reverse pursuant to People v.Kitchen, 189 Ill. 2d 424, 727 N.E.2d 189 (1999), and People v. Bounds, 182 Ill. 2d 1, 694N.E.2d 560 (1998). We, however, disagree.

In both Kitchen and Bounds, our supreme court reversed the dismissal of postconvictionpetitions when the circuit court dismissed those petitions at hearings that had been designatedonly for consideration of discovery issues, not for any review of the merits. Kitchen, 189 Ill. 2d at434-35, 727 N.E.2d at 194-95; Bounds, 182 Ill. 2d at 5, 694 N.E.2d at 562. In both cases thesupreme court noted that the surprise shift in the proceedings was in violation of constitutionaldue process. Kitchen, 189 Ill. 2d at 434-35, 727 N.E.2d at 194-95; Bounds, 182 Ill. 2d at 5, 694N.E.2d at 562. In concluding its analysis, the Kitchen the court stated: "[W]e *** mean to send aclear message to both bench and bar that the protection of a defendant's right to procedural dueprocess in post-conviction proceedings is of critical importance. We trust that such violations willnot soon be repeated in our courtrooms." Kitchen, 189 Ill. 2d at 435, 727 N.E.2d at 194-95. Thus, under a superficial reading of Kitchen and Bounds, petitioner's contentions might appear tohave merit. However, a more thorough review of those cases reveals their inapplicability to thepresent case.

The opinions in Bounds and Kitchen give no indication that any claims of harmless errorwere ever raised by the State. Nor does it appear that a harmless error contention could haveprevailed under the specific facts postured in those cases. At the time of the dismissal of theirpostconviction petitions, in both Kitchen and Bounds, the petitioners were still in the process ofseeking discovery of police records to support their respective claims of constitutionaldeprivation. Kitchen, 189 Ill. 2d at 428-31, 727 N.E.2d at 191-92; Bounds, 182 Ill. 2d at 3-5,694 N.E.2d at 561. In Kitchen, the constitutional claim was ineffective assistance of counsel. The constitutional violation alleged in Bounds is unarticulated. There is no indication that givensufficient opportunity through discovery the petitioners in Kitchen and Bounds would not havefound data which could well have supported the grounds urged in their petitions. This may wellexplain why in Kitchen and Bounds the State did not appear to advance a harmless error claim forthe court to consider. However, we detect no similar possibility of prejudice here where thequestion presented was purely a question of law and, as indicated previously, a previously settledquestion under De La Paz. Thus although counsel in this case may have been similarly surprisedby the judge's sudden decision to address the merits of the petition, petitioner could have sufferedno prejudice because there was nothing to be done to support his barred Apprendi claim.

Petitioner still contends, however, that demonstrated compliance with Rule 651(c) is aninflexible procedural requirement and, therefore, "whether the claims contained in the petitionitself sufficiently allege constitutional violations is irrelevant, as the failure to comply with Rule651(c) is reversible error, even where the petition itself fails to present a substantial constitutionalquestion." We again disagree. We conclude that harmless error may, in limited circumstances,apply to Rule 651(c) violations and find that to be the only kind of error that occurred here.

As a general matter, courts have held that "[i]t is the duty of a reviewing court to considerthe trial record as a whole and to ignore errors that are harmless." People v. Benson, 266 Ill.App. 3d 994, 1003, 641 N.E.2d 617, 624 (1994); accord People v. Reese, 121 Ill. App. 3d 977,986-87, 460 N.E.2d 446, 452-53 (1984). Moreover, courts may not ignore harmless errorconsiderations merely as a means to chastise improper or poor performance in the trial court. SeeReese, 121 Ill. App. 3d at 987, 460 N.E.2d at 452-53, quoting United States v. Hasting, 461 U.S.499, 507, 76 L.Ed.2d 96, 105, 103 S.Ct. 1974, 1979 (1983) ("the interests preserved by thedoctrine of harmless error cannot be so lightly and casually ignored in order to chastise ***prosecutorial overreaching"). Harmless error analysis is applied to most constitutional violations(Benson, 266 Ill. App. 3d at 1003, 641 N.E.2d at 624), including Apprendi violations (People v.Thurow, 203 Ill. 2d 352, 368-71, 786 N.E.2d 1019, 1028-29 (2003)), and even to "reprehensibletrial conduct" (People v. Carbona, 27 Ill. App. 3d 988, 1011, 327 N.E.2d 546, 566 (1975)). Considering that a postconviction petitioner does not even have a constitutional right to counsel(People v. Rials, 345 Ill. App. 3d 636, 641, 802 N.E.2d 1240, 1244 (2003)), and that the level ofrepresentation a petitioner is statutorily entitled to in postconviction proceedings is less than whathe would be entitled to at trial (Rials, 345 Ill. App. 3d at 641, 802 N.E.2d at 1244), a fortiori itwould be proper to conduct a harmless error analysis in cases involving alleged violations of Rule651(c).

In a petition for rehearing filed by the defendant after our initial opinion affirming thecircuit court was issued, defendant contends that our holding is inconsistent with the decision ofour supreme court in People v. Turner, 187 Ill. 2d 406, 719 N.E.2d 725 (1999). Defendantpoints to language in Turner wherein the court said "[T]his court will not speculate whether thetrial court would have dismissed the petition without an evidentiary hearing if counsel hadadequately performed his duties under Rule 651(c)." See Turner, 187 Ill. 2d at 416, 719 N.E.2dat 730. Defendant argues that this statement compels the conclusion that harmless error may notapply to Rule 651(c) violations. We disagree as we find this case to be distinctly different fromthe particular situation in Turner.

In Turner the petitioner's pro se postconviction petition raised due process claimscontending that the State withheld evidence that would have impeached its witnesses, anineffective assistance of counsel claim for his attorney's failure to discover the withheld evidenceand to use it in impeaching the State's witnesses, and a claim that the Illinois death penalty statutewas unconstitutional. Turner, 187 Ill. 2d at 409, 719 N.E.2d at 727. Appointed postconvictioncounsel made no amendments to the pro se petition, and the circuit court granted the State'smotion to dismiss, holding all of the claims to be barred by res judicata or waiver, in so far asthey could have been raised in his direct appeal. Turner, 187 Ill. 2d at 409, 719 N.E.2d at 727. On appeal from the dismissal of his petition, the petitioner contended that postconviction counselviolated Rule 651(c) by not consulting with him a sufficient number of times (Turner, 187 Ill. 2dat 410-11, 719 N.E.2d at 728); by failing to adequately review the trial record, as there were fivecourt dates for which there were no transcripts included in the appellate record (Turner, 187 Ill.2d at 411, 719 N.E.2d at 728); and by failing to make necessary amendments to the pro sepetition (Turner, 187 Ill. 2d at 412, 719 N.E.2d at 729).

The Turner court rejected the petitioner's first two arguments, but accepted thatpostconviction counsel provided an unreasonable level of representation by failing to amend thepetition. The Turner court observed that by failing to re-frame the petitioner's due process claimsas ineffective assistance of appellate counsel claims, for his failure to raise them on direct appeal,that postconviction counsel failed to avoid the bar of waiver. Turner, 187 Ill. 2d at 413, 719N.E.2d at 729. The court also noted that postconviction counsel failed to amend the ineffectiveassistance claim in the pro se petition to include allegations that the evidence withheld wasmaterial and resulted in prejudice to the defendant, "essential elements of petitioner's legalclaims." Turner, 187 Ill. 2d at 413, 719 N.E.2d at 729. Finally, the court also observed thatpostconviction counsel had neither included affidavits supporting the petition, or explained theirabsence. Turner, 187 Ill. 2d at 414, 719 N.E.2d at 730.

Thus, in Turner, the impact on the outcome of the petition from counsel's failure tocomply with the rule was evident. The Turner court found that postconviction counsel's failure toattach affidavits to the petition was "fatal" to the petitioner's claims (Turner, 187 Ill. 2d at 414,719 N.E.2d at 730), and observed that the prejudice from failing "to make a routine amendment"to the petition to avoid waiver was "palpable" since "[C]ounsel's failure *** precludedconsideration of petitioner's claims on the merits and directly contributed to the dismissal of thepetition without an evidentiary hearing" (Turner, 187 Ill. 2d at 414-15, 719 N.E.2d at 730). Itwas in this context of egregious, independently prejudicial procedural errors, that the Turner courtrefused to "speculate" on the ultimate fate of the petition (Turner, 187 Ill. 2d at 416, 719 N.E.2dat 730), and expressly declined to "express [an] opinion on the [substantive] merit of the claims,"(Turner, 187 Ill. 2d at 417, 719 N.E.2d at 731), most of which, we note, did not present purequestions of law.

In this case, however, there is certainty, not speculation, that there could have been noimpact from any non-compliance with Rule 651(c) by postconviction counsel. The rule iscategorical: Apprendi issues cannot be raised retroactively as established in De la Paz and recentlyreiterated in Lucien v. Briley, 213 Ill. 2d 340, 821 N.E.2d 1148 (2004).

Moreover, there is reason to think that the Turner court itself recognized the distinctionbetween cases with potential merit and those where "[T]here was nothing [a defendant] could doto make it any better. He simply was off the track and could not get back on" (Owens v. Snyder,349 Ill. App. 3d 35, 45, 811 N.E.2d 738, 747 (2004) (affirming the procedurally irregulardismissal of a mandamus petition on account of the total lack of merit in the underlying claimmaking its dismissal inevitable). For example, in regard to the petitioner's claim thatpostconviction counsel failed to adequately review the trial record, the Turner court declined tofind a Rule 651(c) violation when the petitioner could not identify what information useful to hisclaims was contained in the hearing transcripts that postconviction counsel allegedly never saw. Turner, 187 Ill. 2d at 411, 719 N.E.2d at 728. The Turner court stated "[t]o require counsel toexamine portions of the record which have no relevance to petitioner's claims would be anexercise in futility." Turner, 187 Ill. 2d at 412, 719 N.E.2d at 729; c.f. People v. Dodd, 58 Ill. 2d53, 56, 317 N.E.2d 28, 30 (1974); People v. Henderson, 215 Ill. App. 3d 24, 26, 574 N.E.2d 268,270 (1991); see People v. Leach, 284 Ill. App. 3d 4, 6-7 672 N.E.2d 835, 836-37 (1996)(refusing to remand a petition alleging unconstitutional sentencing for noncompliance with Rule651(c) when the petitioner, since he pled guilty, could only challenge his sentence after movingthe trial court to withdraw his plea and vacate his judgment, but had not done so).

Thus, the violation of Rule 651(c) is not enough to warrant reversal when, in theparticular context in which the error occurred, as in this case, it clearly could not have had aprejudicial impact on the petitioner. Here, no amount of scouring the record, nor multiplemeetings with petitioner, nor any amendment of the petition, could have saved the Apprendi claimfrom ultimate dismissal.⁽¹⁾ We find the present situation to be akin to that faced by the court inOwens v. Snyder, which stated: "If the trial court had followed the *** [statutory procedure,]plaintiff would be in the same position he now is in. Dismissal of his complaint was inevitable.Plaintiff requests this court to reverse and remand for further proceedings. Such action wouldhave little remedial effect, only delaying dismissal." Owens, 349 Ill. App. 3d at 45, 811 N.E.2d at746.

Petitioner, nevertheless argues that People v. Alexander, 197 Ill. App. 3d 571, 554 N.E.2d1078 (1990), which applied a harmless error analysis as to the mere procedural failure to file acertificate of compliance, requires reversal regardless of prejudicial impact when, as here, there isno demonstration of counsel's substantive compliance, namely, that he reviewed the trial recordand consulted with the petitioner. We disagree. In Alexander, as well as People v. Brown, 52 Ill.2d 227, 287 N.E.2d 663 (1972), and People v. Jones, 43 Ill. 2d 160, 251 N.E.2d 218 (1969), onwhich Alexander relied, there is clear indication that had counsel in those cases been insubstantive compliance, it may well have effected the subsequent outcome. For example, inAlexander, the court was concerned by the failure of the record to reflect counsel's review of therecord when he failed to counter the State's arguments based on the trial evidence and trialproceedings. Alexander, 197 Ill. App. 3d at 573, 554 N.E.2d at 1079. And, in Brown, the courtsuggested that postconviction counsel might have discovered that some of the fourth amendmentclaims alleged by the petitioner were not barred by res judicata or waiver, as alleged by the State,had he reviewed the trial record. Brown, 52 Ill. 2d at 230, 287 N.E.2d at 665. By contrast, inthis case, as we explained above, there was no conceivable act counsel could have taken in thiscase to avoid the legal bar to petitioner's Apprendi claim presented by De La Paz.

Defendant on petition for rehearing also points to People v. Greer as supporting that alack of compliance with Rule 651(c) is not subject to harmless error analysis. In our analysis,however, Greer offers no such support. Defendant attempts to focus us on language that anattorney would be allowed to withdraw after complying with the Rule. Greer, 212 Ill. 2d at 212,817 N.E.2d at 523 ("it nonetheless appears that counsel fulfilled his duties as prescribed by Rule651(c), and the record before us supports counsel's assessment that the defendant's postconvictionclaims were frivolous and without merit. Consequently, though the procedure in the circuit courtleaves something to be desired, defense counsel should be allowed to withdraw"). He would haveus construe that statement as meaning that even if counsel is ultimately justified in withdrawing hemust nevertheless conform with his obligations under Rule 651(c). We do not disagree with thatcontention. However, Greer does not purport to hold that the failure to perform under the rule,while error, would be grounds for reversal and remand notwithstanding the ultimate futility of thateffort. Thus, there is nothing in Greer which would preclude noncompliance with the rule frombeing subject to harmless error analysis. We therefore find that "[w]e may look beyond anyalleged procedural defect where, as in this case, defendant's petition raised a pure question of law,was frivolous and completely without merit, and no prejudice resulted from the trial court'sdismissal" (People v. Taylor, 349 Ill. App. 3d 718, 720, 812 N.E.2d 581, 583 (2004)) and, thus,will not reverse and remand this case based on postconviction counsel's alleged violation of Rule651(c).

Finally, regarding petitioner's contention that the circuit court committed reversible errorby summarily dismissing his petition at the second stage of review when the Act only provides forsummary dismissal at the first stage, we again only find harmless error. This court recentlyaddressed a similar issue in People v. Anderson, 352 Ill. App. 3d 934, 817 N.E.2d 1000 (2004). There we recognized that summary dismissal of an Apprendi claim, even if procedurally erroneousremains subject to harmless error analysis and that, where the Apprendi challenge was barred byDe La Paz, summary dismissal, even if regarded as procedurally erroneous, was harmless. SeeAnderson, 352 Ill. App. 3d at 946-48, 817 N.E.2d at 1010-11; accord Taylor, 349 Ill. App. 3d at720, 812 N.E.2d at 583. Therefore, as there is no hope for petitioner's claim, as previouslyexplained, we find only harmless error in the summary dismissal of his petition at the secondstage.

Affirmed.

CAHILL and McBRIDE, J.J., concur.

1. We note that we only need to consider the alleged Rule 651(c) violation in the contextof the presentation of petitioner's Apprendi claim as the Act provides counsel only to "shape [apetitioner's original claims] into appropriate legal form, and [to] present them to the court," not"for purposes of exploration, investigation and formulation of potential claims." People v. Davis,156 Ill. 2d 149, 162-63, 619 N.E.2d 750, 757-58 (1993).