No. 3--02--0171

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

JUSTICE SCHMIDT delivered the opinion of the court:

Defendant Richard Patrick Oakes was charged with the 1986murder of Helen Finley. In February 1988, he entered a fullynegotiated plea of guilty and was sentenced to an 80-yearextended term of imprisonment.

On August 16, 2000, defendant filed a pro se petition forpostconviction relief claiming that his sentence was imposed inviolation of the rule of Apprendi v. New Jersey, 530 U.S. 466,147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Following appointmentof counsel and consideration of the State's motion to dismiss,the court issued a memorandum opinion finding no legal authorityfor granting sentencing relief. Defendant filed a notice ofappeal, and the trial court subsequently entered a formal orderdenying the amended petition. Finding that defendant's notice ofappeal was premature, this court dismissed the appeal for lack ofjurisdiction. People v. Oakes, No. 3--02--0171 (2004)(unpublished order under Supreme Court Rule 23).

Defendant appealed to the Illinois Supreme Court. In asupervisory order of October 6, 2004, the court denieddefendant's petition for leave to appeal, but ordered this courtto vacate its decision and decide the cause on its merits. People v. Oakes, 211 Ill. 2d ___, 815 N.E.2d 405 (2004).

The only issue defendant advanced in his appeal was that thecause should be remanded to the trial court for furtherpostconviction proceedings because appointed counsel did notcomply with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). In compliance with the supreme court's directions, we now vacateour dismissal order and affirm the trial court's judgment.

Rule 651(c) provides that, when a defendant appeals from thedenial of a postconviction petition, the record must show thatthe defendant's attorney (1) consulted with the defendant, (2)examined the record of the trial proceedings, and (3) made anyamendments to the pro se petition that were warranted. 134 Ill.2d R. 651(c). The attorney may certify that these requirementshave been met; however, his failure to do so is harmless if therecord establishes that the attorney in fact complied with therule (People v. Guest, 166 Ill. 2d 381, 655 N.E.2d 873 (1995)),or if the attorney's lapse could make no difference in theoutcome of the cause (People v. Leach, 284 Ill. App. 3d 4, 672N.E.2d 835 (1996)).

In Leach, the pro se postconviction petitioner soughtsentencing relief from sentences imposed pursuant to a negotiatedguilty plea. The trial court dismissed the petition. Leachappealed, arguing that his appointed counsel was ineffective forfailing to comply with Rule 651(c). The appellate court affirmedthe dismissal, noting that Leach had not requested the court towithdraw his plea and vacate judgment, nor had he shown thatgranting such relief was necessary to correct a manifestinjustice. Leach, 284 Ill. App. 3d 4, 672 N.E.2d 835. The courtfurther held that, where only sentencing relief is sought by apro se postconviction petitioner, and such relief is unavailablebecause the petitioner has not sought to withdraw a guilty pleaand vacate judgment, appointed counsel is not required to complywith Rule 651(c). Leach, 284 Ill. App. 3d 4, 672 N.E.2d 835.

More recently, the court in People v. Sargent, No. 1--03--2096 (September 30, 2004), ruled that failure to comply with Rule651(c) was harmless where the only claim asserted in thedefendant's pro se postconviction petition was that his sentenceviolated the rule of Apprendi. Retroactive application ofApprendi was foreclosed by People v. De La Paz, 204 Ill. 2d 426,791 N.E.2d 489 (2003)). Therefore, the court noted, no amount ofscouring the record, meetings with petitioner, or any amendmentof the petition by appointed counsel could have saved the petition from dismissal, and a remand for Rule 651(c) compliancewas not warranted. Sargent, No. 1--03--2096.

The record in this case fails to demonstrate that appointedcounsel consulted with defendant as required by Rule 651(c). However, even assuming that no attorney-client consultation tookplace, a remand could not affect the outcome of thepostconviction proceedings. Because defendant's sentence wasimposed pursuant to a fully negotiated guilty plea, defendantcould not obtain sentencing relief without moving to withdraw hisplea and vacate judgment, which he did not do. See Leach, 284Ill. App. 3d 4, 672 N.E.2d 835. Moreover, as in Sargent,defendant's only postconviction claim is barred by De La Paz. Under the circumstances, appointed counsel's failure to complywith Rule 651(c) was harmless.

The judgment of the circuit court of Fulton County isaffirmed.

Affirmed.

HOLDRIDGE and McDADE, JJ., concur.