July 13, 2001

No. 3-99-0565

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D. 2001

JUSTICE McDADE delivered the opinion of the court:

FACTS

Damon McKenzie was indicted in Will County for the murder of Peter Luckett onOctober 24, 1994. He entered a negotiated plea of guilty to first degree murder and wassentenced on January 17, 1995, to 30 years' imprisonment.

Two years later, defendant filed a pro se post-conviction petition pursuant to the PostConviction Hearing Act (725 ILCS 5/122-1 (West 1998)), alleging that his attorney had notadvised him of an available defense which could have reduced his crime to second degreemurder. He asserted that his guilty plea on first degree murder was, therefore, involuntary andshould be vacated.

After review of defendant's petition, the trial court found that it presented a "possiblejusticiable issue" and appointed counsel on May 9, 1997, to represent defendant in the post-conviction proceedings. The appointed attorney filed an appearance on June 25, 1997, indicatingthat he had reviewed the petition and consulted with his client and seeking a continuance toprepare an amended petition. Additional continuances were secured by or on behalf ofdefendant's appointed counsel on July 16, 1997, August 6, 1997, October 1, 1997, October 22,1997, and November 24, 1997. On January 12, 1998, counsel advised the court that he believeddefendant's petition was frivolous and was granted leave to file a motion so indicating.

On March 18, 1998, counsel moved to withdraw, asserting there was no meritorious basisfor the relief sought by defendant. Defendant did not object to the withdrawal. The motion wasgranted and defendant was given time to amend his petition pro se.

Apparently feeling that supplementation of the petition was beyond him, defendantmoved for appointment of new counsel or, alternatively, to have the prior motion to withdrawstricken. Noting that it had already allowed withdrawal, without objection by defendant, thecourt denied the motion.

Eleven months later, on March 8, 1999, defendant filed an amended pro se petitionarguing the viability of self defense in his case and asserting once again that his trial counsel hadbeen ineffective. He reiterated his entitlement to a trial in which second degree murder waspresented for the jury's consideration.

The State moved to dismiss defendant's petition and the motion was set for a hearing onJuly 19, 1999. Following argument by defendant and the prosecutor, the court noted thatdefendant had no documentary support for his claim of ineffective assistance beyond his ownaffidavit. The judge then reviewed the facts included in defendant's proffer at the time of hisguilty plea in 1995, and concluded that he was unable to find any evidence in the record to showthat advice from his trial attorney concerning self defense would have had any effect. The court,observing that "very competent" appointed counsel had found no merit in the petition and hadwithdrawn, granted the state's motion to dismiss defendant's post-conviction petition.

Defendant filed a timely appeal of this dismissal.

ANALYSIS

Defendant did not take a direct appeal from his conviction in 1995 and was compelled toseek relief from the conviction and sentence, if at all, through the statutory procedures of the PostConviction Hearing Act (725 ILCS 5/122.1, et seq.) (the "act"). The act creates for him a right toreasonable assistance of counsel in post conviction proceedings. At issue in this case is whenthat right accrues and whether, having accrued, it can be withdrawn during the course of theproceedings.

This appeal presents an issue of statutory construction which is a question of law. Consequently, we review the issue de novo. Department of Public Aid v. Brewer, 183 Ill. 2d 540,544, 234 N.E.2d 223, 227 (1998).

We begin with an acknowledgment that this court has considered this issue on threeprevious occasions and that the procedures followed by the Will County Circuit Court werevindicated in those earlier decisions. For reasons which will become apparent, we fullyreconsider the issue at this time.

The act creates a three-step process for seeking post-conviction relief. The first stage iscompleted when the trial court determines that the defendant's pro se petition is not frivolous but,rather, states the essence of a potentially meritorious constitutional claim. People v. Lara, 317Ill. App. 3d 905, 741 N.E.2d 679 (2000). In the present case, the trial court found "a possiblejusticiable issue" in McKenzie's petition, thereby satisfying step one. At that point, defendant'sstatutory right to counsel attached. People v. Patton, 315 Ill. App. 3d 968, 735 N.E.2d 185(2000).

Step two begins with the mandatory appointment of counsel by the court if defendantmakes the request and if it appears to the court's satisfaction that defendant lacks means to hirean attorney. Lara, 317 Ill. App. 3d at 06, 741 N.E.2d at 681. It is the duty of appointed counselto consult with defendant about his constitutional claim, examine the record, and amend the prose petition as necessary to present a reasonable articulation of those claims to the court. Peoplev. Whitford, 314 Ill. App. 3d 335, 732 N.E.2d 649 (2000). The state may answer or seekdismissal of the petition and defense counsel replies to those arguments. Whitford, 314 Ill. App.3d at 346, 732 N.E.2d at 659. Nothing in the plain language of the statute permits the attorney,once appointed, to seek withdrawal or authorizes the court to grant such a request.

Nonetheless, the trial court did allow defendant's appointed attorney to withdraw. Defendant, without statutory authority, was deprived of counsel and compelled to amend his prose petition without reasonable assistance from a trained professional. Indeed, the attorneyaffirmatively undermined defendant's claims and provided the court with some justification fordismissing his client's petition. Defendant's unaided ineptitude resulted in a flawed presentationof any viable argument he may have had. Moreover, the withdrawal of his attorney, assertingthat there was no meritorious basis for defendant's petition, seriously prejudiced the post-conviction process as it was constructed by the legislature.

If the motion to dismiss had been denied, defendant also would not have had reasonableassistance in preparing for and participating in the evidentiary hearing which is the core of stagethree of the statutory process. He would not have had help, as contemplated in the statute, inpreparing or securing documents, presenting or cross-examining witnesses, or making objectionsand submitting evidence.

Defendant has argued, persuasively we believe, that by allowing his appointed counsel towithdraw, the trial court has effectively recast a statute that nowhere authorizes such withdrawal. Because the Post-Conviction Hearing Act has created procedures and remedies not provided forby the common law, it must be strictly construed in such a way that they are neither restricted norenlarged beyond what the legislature fashioned. Recently, in the case of People v. Rivera, 315Ill. App. 3d 454, 734 N.E.2d 26 (2000), this court considered whether there was any provision inthe Post Conviction Hearing Act which permitted a trial court to dismiss part but not all ofdefendant's petition. In the absence of any language authorizing a partial dismissal, we held thatthe court must examine and evaluate the petition as a whole and, if it states the gist of ameritorious claim, the petition must proceed to the second stage as a whole.

It appears from our review of the act that the legislature intended to create procedures togive a convicted defendant a last-ditch opportunity to change the outcome of his criminal case. Italso appears, from the legislators' decision not to provide for withdrawal, that they intended forthe defendant to have the assistance of trained counsel throughout the process. We, therefore,conclude from the absence of authorizing language that withdrawal of appointed counsel is incontravention of the statute and the dismissal of defendant's pro se petition must be reversed.

The State argues, however, that a trial court's decision to grant a motion to withdraw hasbeen upheld on three separate occasions by this court. See People v. Robinson, 160 Ill. App. 3d366, 513 N.E.2d 603 (3^rd Dist 1987); and People v. Rial; 214 Ill. App. 3d 420, 573 N.E.2d 842(3^rd Dist 1991), and People v. Cokley, 219 Ill. App. 3d 209, 579 N.E.2d 417 (3^rd Dist 1991),which were decided in reliance on Robinson.

The State's analysis of the current situation with our precedents is correct. Our presentconclusion, which we believe to be the right one, is wholly inconsistent with these earlierdecisions of our court.

We do believe, however, that an examination of the cases reveals the flaw in the priorreasoning of both the trial and appellate courts. In all three cases (Robinson, Rial, and Cokley),the panel found that the appointed counsel had complied with Supreme Court Rule 651(c) andhad, therefore, provided representation which was sufficient under the statute.

The Illinois Supreme Court's decision in People v Porter, 122 Ill. 2d 64, 521 N.E.2d 1158(Ill 1988), cited as additional authority by defendant, is instructive here. The majority in Porterfound Section 122-2.1 of the Post Conviction Hearing Act to be constitutionally adequate,rejecting defendants' claims that it violates the doctrine of separation of powers and/or denies anindigent defendant due process.

In addressing the separation-of-powers argument, the court found that Supreme CourtRule 651(c) was concerned with the appointment of counsel at the appellate level while Section122-2.1 provides for such appointment at the trial stage of post-conviction proceedings. Relyingon People v. Ward (1984), 124 Ill. App. 3d 974, 978, 464 N.E.2d 1144, the court went on to statethat "***the appointment of counsel at the hearing stage of the post-conviction proceeding mustbe considered to be a ***matter of legislative grace and favor which may be altered by thelegislature at will." Porter, 521 N.E.2d at 1160-61.

Further, in considering the due process challenge, the Porter court noted:

"The petitioner does not have to construct legal arguments or citeto legal authority. Once the petitioner sets out allegationsdemonstrating a meritorious constitutional claim, he is entitled tohave counsel represent him on the petition."  Porter, 521 N.E.2d at 1161. 

Thus in Porter, the supreme court appears to recognize the right ofa defendant to have representation of counsel on the terms set out by the legislature in the Post-Conviction Hearing Act, and to acknowledge that satisfaction of the provisions of Supreme CourtRule 651(c) cannot restrict or circumscribe the legislative grant of counsel.

CONCLUSION

For all of the foregoing reasons, we specifically overrule the earlier decisions of this courtin People v. Robinson, 160 Ill. App. 3d 366, 513 N.E.2d 603 (3^rd Dist 1987); People v. Rial; 214Ill. App. 3d 420, 573 N.E.2d 842 (3^rd Dist 1991), and People v. Cokley, 219 Ill. App. 3d 209, 579N.E.2d 417 (3^rd Dist 1991). We also reverse the decision of the trial court in the instant case andremand the matter for reinstatement of defendant's post-conviction petition and appointment ofnew counsel to assist defendant in its prosecution.

Reversed and remanded.

LYTTON and SLATER, JJ., concur.