People v. Moore ( 2018 )

2018 IL App (2d) 170120No. 2-17-0120
Opinion filed June 21, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_____________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, ) No. 05-CF-2900
v. )
) Honorable
QUENTIN CORLEY MOORE, ) Susan Clancy Boles and
) M. Karen Simpson,
Defendant-Appellant. ) Judges, Presiding.
______________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court, with opinion
Justices McLaren and Zenoff concurred in the judgment and opinion.
OPINION
¶1 In 2007, defendant, Quentin Corley Moore, was convicted of attempted first-degree
murder. We affirmed his conviction on direct appeal. People v. Moore, No. 2-08-0919 (2010)
(unpublished order under Illinois Supreme Court Rule 23). Subsequently, defendant filed a
pro se postconviction petition. Counsel was appointed to represent defendant on the petition but
was later permitted to withdraw. The court subsequently dismissed the petition on the State’s
motion. Defendant appeals, challenging the orders granting counsel leave to withdraw and
dismissing the petition. We hold that postconviction counsel failed to demonstrate compliance
with the mandate of Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) that counsel
“ascertain [the defendant’s] contentions of deprivation of constitutional rights.” We therefore
2018 IL App (2d) 170120vacate the orders allowing withdrawal of counsel and dismissing the petition, and we remand for
further proceedings.
¶2 I. BACKGROUND
¶3 In December 2005, defendant was indicted on two counts related to an alleged shooting
in Aurora on November 22, 2005. Count I charged defendant with attempted first-degree murder
(720 ILCS 5/8-4(a), 9-1(a)(1) (West 2004)) and alleged that defendant “performed a substantial
step towards the commission of [first-degree murder], in that he without lawful justification and
with the intent to kill Julian Ramos, shot Julian Ramos with a firearm.” Count II charged
defendant with aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2004)) and
alleged that defendant “discharged a firearm in the direction of another person in that he shot at
Julian Ramos with a firearm.”
¶4 Prior to jury selection, the State moved to amend count I to allege that defendant “shot at
Julian Ramos” (emphasis added) instead of “shot Julian Ramos.” Defendant did not object, and
the trial court permitted the amendment.
¶5 In its opening statement, the State anticipated that the evidence would show that, on
November 22, 2005, defendant was driving a car with three fellow members of the Latin Kings
gang. One of the passengers was Blake Pannell, an informant with the Federal Bureau of
Investigation (FBI). During the drive, another passenger, Augustin Montes, saw a pedestrian he
recognized as Ramos. Montes, armed with a handgun, left the car and shot at Ramos.
¶6 The evidence at trial was recounted in detail in our disposition on direct appeal. See
Moore, No. 2-08-091. Pannell testified that, in November 2005, he was a member of the Latin
Kings, working as an informant for the FBI. On November 22, 2005, Pannell was riding around
Aurora with three fellow Latin Kings: defendant, Montes, and Ruben Hernandez. Defendant was
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2018 IL App (2d) 170120driving. The four were looking for graffiti that was insulting to the Latin Kings. When they saw
such graffiti, they would spray paint over it with insults to the Insane Deuces, a rival gang. For
security purposes, they had a gun, which belonged to defendant. Shortly after joining his
associates that day, Pannell activated the secret audio-recording device that he was wearing.
¶7 Pannell testified that, at some point during their drive, Montes remarked that he observed
a pedestrian who belonged to the Insane Deuces. The four plotted how to shoot the pedestrian.
Defendant drove the car in pursuit of the intended target. Montes twice exited the car with the
gun in order to shoot the pedestrian. The first time Montes exited, Pannell also left the car and
spray painted over some nearby graffiti. Before Montes exited the second time, Pannell covertly
removed the clip from the gun, which left Montes with just the one bullet in the chamber.
Pannell witnessed Montes fire the one bullet at the pedestrian. The four then drove in further
pursuit of the pedestrian but relented when he reached an area with a number of bystanders.
¶8 Pannell testified that he observed the pedestrian while the group was pursuing him.
However, only in the following exchange did Pannell name the pedestrian:
“Q. Were you ever going to give the clip to [Montes]—for him to complete the
shooting of Julian Ramos?
A. No.”
¶9 Pannell testified that, after the encounter with the pedestrian, he and his three associates
went to the home of Marina Moreno, an aspiring Latin Queen. Montes hid defendant’s gun in
Moreno’s bedroom ceiling.
¶ 10 The State played for the jury a copy of Pannell’s audio recording. Voices are heard
declaring an intent to shoot someone and then commenting on the subject as he is pursued and
flees. Mixed in with the statements are the sounds of a car door shutting. The State also
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2018 IL App (2d) 170120introduced into evidence a transcript of the audio recording. Ramos is not identified by name in
the recording itself or in the transcript.
¶ 11 Moreno testified that, on November 22, 2005, defendant came to her house with Pannell,
Hernandez, and Montes. After the group left, defendant phoned Moreno and told her that there
was a gun in the ceiling in her room. About a week later, Moreno took the gun and delivered it
to defendant at his request. She was not certain that the gun belonged to defendant, but she had
seen him with it on prior occasions.
¶ 12 The State also called the FBI agent who worked with Pannell. The agent testified that
Pannell contacted her on November 22, 2005, to report a shooting that had just occurred.
¶ 13 The State’s final witness was an Aurora police officer who testified as an expert on gang
activity. The expert explained that animosity between rival gangs can manifest itself in
arguments, fights, or shootings. The expert opined that the shooting on November 22, 2005, was
gang-related.
¶ 14 Following that expert’s testimony, the State declared that it had no other witnesses.
Ramos had not testified. The State moved to amend both counts of the indictment by
substituting “another” for “Julian Ramos.” Count I as amended would allege that defendant,
“without lawful justification and with the intent to kill another, shot at another with a firearm.”
Count II as amended would allege that defendant “discharged a firearm in the direction of
another person in that he shot at another with a firearm.” The State explained that its reason for
the proposed amendment was that it “couldn’t find” Ramos, though it had subpoenaed him for
prior settings of the trial. The State contended that the amendment would conform the
indictment to the evidence at trial, which was that “an individual was shot at, a person was shot
at by [Montes].” The State suggested that Ramos’s name was “surplusage” in the indictment.
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2018 IL App (2d) 170120¶ 15 Defense counsel objected to the proposed amendment. The trial court asked how the
amendment would prejudice the defense, and defense counsel replied that the amendment would
permit the State to argue that defendant was guilty as long as there was someone in the area
whom Montes could have shot at, whether it was Ramos or not. The court replied:
“I don’t think that is what they [the State] are saying. I think that they are saying
it is a person who[m] [Montes] saw and said he’s a rival guy and that is the person. ***
I think they are identifying him in that way. I don’t think they are saying it could
be anybody. I mean, it is not like there were ten people there that were being shot at.”
¶ 16 The court added that it would not permit the State to argue in closing that defendant
would be guilty as long as Montes shot at some individual, even if it were not the individual
whom Pannell testified he and his associates pursued. Finding no prejudice to the defense, the
court allowed the amendment to both counts.
¶ 17 Subsequently, the State rested and the defense called one witness, an Aurora police
detective. The detective testified that, when he spoke with Pannell on the evening of November
22, 2005, Pannell did not mention having done any spray painting or having exited the car near
the time of the shooting. Nor did Pannell mention that the gun in the car belonged to defendant.
¶ 18 In its closing argument, the State did not mention Ramos by name but referred
generically to the person who Pannell testified was pursued by his group on November 22, 2005.
¶ 19 In the defense’s closing, counsel commented on Ramos’s absence. In rebuttal, the State
argued:
“Do we have to show that Julian Ramos—what do we have to show about Julian
Ramos? Well, there is no evidence about Julian Ramos. We do have evidence, evidence
from the day of the shooting that Augustin Montes chased after a guy that Blake Pannell
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2018 IL App (2d) 170120identifies as a heavyset Hispanic kid. Identity is not an issue. If you look at the
instructions, it says that. And what you will get is the instructions. And I in no way
mean to misspeak. The definition of *** attempted first degree murder *** is that
without lawful justification with the intent to kill an individual, [sic] does any act which
constitutes a substantial step towards the killing of an individual.”
¶ 20 At this, defense counsel objected, remarking that the State was “dangerously close to
insinuating that *** this guy just vanished into thin air.” Counsel noted that the State had
“already named him as Julian Ramos.” The State replied that its remarks about what it had to
prove were simply in response to the defense’s comment on Ramos’s absence. The trial court
instructed the State that it could “talk about the jury instructions and the individual.” Continuing
with its argument, the State commented:
“Again, it’s an individual shooting another person. Don’t have to identify that person.
That person, in fact, does not have to come and testify. You won’t see an instruction that
says you must hear—”
¶ 21 Defense counsel again objected, and the court sustained the objection.
¶ 22 The jury returned verdicts of guilty on both counts. Defendant filed a posttrial motion,
reasserting that the trial court erred in permitting the amendments that eliminated the name
“Julian Ramos.” The trial court denied the motion. The court then sentenced defendant to 23½
years in prison. The court merged count II into count I for purposes of sentencing.
¶ 23 On direct appeal, defendant raised no issue regarding the amendments to the indictment.
We affirmed defendant’s convictions. See Moore, No. 2-08-0919.
¶ 24 In October 2010, defendant filed a pro se postconviction petition under the Post-
Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). The petition was over
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2018 IL App (2d) 170120500 pages, including attachments. He raised numerous contentions of error. One paragraph of
the petition read:
“Petitioner was denied his right to the effective assistance of appellate counsel
where appellate counsel failed to raise me being prejudiced by these amending at the day
of trial and at the closing of trial [right] before closing arguments. On Nov. 5, [2007,]
petitioner was prejudiced by the Court allowing the word be changed from ‘shot’ to ‘shot
at’ on the first day of trial, which [the] judge agreed that this amending came as [a]
surprise, also no motion by the State for this amending which is required by 725 ILCS
5/115. Nov. 7, [2007,] there was another amending that was allowed that the judge
allowed of the name of [the] alleged victim to be removed and for count one to read, ‘the
intent to kill another,’ and for count two to read, ‘shot at another with a firearm,’ which
the State said the name is mere surplusage. No motion on file for this second amending
and with his name being removed in the Criminal Procedure Book 5/114-1 says that in
section 10, the misnomer results in substantial injustice to the defendant, nothing of
5/115-5 of the Criminal Procedure says the name could be removed and this done [right]
before closing arguments of trial. He wasn’t even there at trial and they even used his
name in [opening] statements, during trial and closing arguments. Case [law] says that
you can’t broad[en] an element of the offense has to be returned to the Grand Jury for any
changes. Then the judge makes a statement saying there wasn’t ten people being shot at,
so how would you replace the alleged victim with another if there’s no one to say that
there was another.”
¶ 25 In July 2011, defendant inquired by letter into the status of his petition. In August 2011,
the circuit court clerk responded by letter that the petition was “[i]n the docket as of August 3,
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2018 IL App (2d) 1701202011” and that there was “no future court date.” The court’s first order on the petition was dated
May 15, 2012, and stated: “Rachel Hess was appointed to represent [defendant] in his post-
conviction petition on April 2, 2012, but it was erroneously put on 07 CF 1840, a closed case.”
Hess was later permitted to withdraw because of her workload, and new counsel was appointed.
In January 2014, new counsel filed an affidavit of compliance with Illinois Supreme Court Rule
651(c) (eff. Feb. 6, 2013) as well as a motion for leave to withdraw as counsel. Counsel
identified four individual claims raised in defendant’s pro se petition, and counsel explained why
each lacked potential merit. In April 2014, counsel filed an addendum to her motion to
withdraw, addressing the potential merit of two additional claims raised in defendant’s petition.
Neither the original motion nor its addendum addressed the potential merit of, or even
acknowledged, defendant’s claim that appellate counsel was ineffective for failing to challenge
the amendments to the indictment.
¶ 26 The trial court granted counsel’s motion to withdraw. Subsequently, the State moved to
dismiss the petition. The State recognized that defendant claimed that appellate counsel “was
ineffective on the petitioner’s direct appeal.” However, the State did not recognize that
defendant claimed ineffectiveness based on appellate counsel’s failure to claim that the
amendments to the indictment were improper.
¶ 27 The trial court granted the motion to dismiss, and defendant filed this timely appeal.
¶ 28 II. ANALYSIS
¶ 29 Defendant makes several alternative requests for relief in this appeal. His preference is
that we assess the merit or potential merit of the claim in his pro se postconviction petition that
appellate counsel was ineffective for failing to contend on direct appeal that the trial court erred
in permitting the State to amend count I by striking the name “Julian Ramos.” Defendant’s first
-8­
2018 IL App (2d) 170120three alternative choices of relief are (1) an outright reversal of his conviction, (2) a reversal of
his conviction and a remand for a new trial, and (3) a remand for a third-stage evidentiary
hearing under the Act. See People v. Bailey, 2017 IL 121450, ¶ 18 (petition will advance to
third-stage review if it presents a substantial showing of a constitutional violation).
¶ 30 Defendant’s fourth alternative choice of relief does not involve our assessing the merit or
potential merit of his pro se amendment claim. Specifically, defendant argues that the trial court
erred in permitting his appointed postconviction counsel to withdraw, because counsel failed to
provide the level of assistance required under the Act during second-stage proceedings. See
People v. Greer, 212 Ill. 2d 192, 204 (2004) (the Act guarantees the petitioner a “ ‘reasonable’ ”
level of assistance from appointed counsel). In determining whether that level of assistance was
provided, we need not—and must not—address the merits of the petition. See People v. Suarez,
224 Ill. 2d 37, 51-52 (2007). For the following reasons, we agree with defendant that the trial
court erred in allowing counsel to withdraw. Accordingly, we vacate the order of withdrawal
and the later dismissal of the pro se petition, and we remand for the appointment of new
postconviction counsel.
¶ 31 The Act (725 ILCS 5/122-1 et seq. (West 2010)) provides a procedural mechanism by
which a criminal defendant can assert that his federal or state constitutional rights were
substantially violated in his original trial. A postconviction proceeding is not a substitute for a
direct appeal, but rather is a collateral attack on a prior conviction and sentence. People v.
Davis, 2014 IL 115595, ¶ 13. For this reason, issues that were raised and decided on direct
appeal are barred from consideration, by the doctrine of res judicata. Id. Moreover, issues that
could have been raised on direct appeal, but were not, are considered forfeited. Id. However,
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2018 IL App (2d) 170120application of forfeiture principles is relaxed where the forfeiture stems from the ineffective
assistance of appellate counsel. People v. English, 2013 IL 112890, ¶ 22.
¶ 32 Petitions under the Act are reviewed in distinct stages. The first stage spans the 90-day
period following the filing of the petition. Within that 90-day period, the trial court may dismiss
the petition if it determines that the petition is frivolous or patently without merit. 725 ILCS
5/122-2.1(a)(2) (West 2010). If the court finds that the petition is not so deficient but states the
“gist of a constitutional claim” (People v. Allen, 2015 IL 113135, ¶ 24), the petition advances to
the second stage of review. 725 ILCS 5/122-2.1(b) (West 2010). At the first stage, the State is
not permitted any input on the sufficiency of the petition. Bailey, 2017 IL 121450, ¶ 19. If the
trial court fails to act on the petition within 90 days, it proceeds to the second stage. Id. ¶ 18;
Greer, 212 Ill. 2d at 204 (“Of course, in [this] instance, the petition may well be frivolous or
patently without merit, and the defendant is appointed counsel only through the fortuity of the
circuit court’s inaction.”).
¶ 33 At the second stage, the petitioner, if indigent, is entitled to the appointment of counsel.
725 ILCS 5/122-4 (West 2010). The Act guarantees the petitioner a “ ‘reasonable’ ” level of
assistance from appointed counsel. Greer, 212 Ill. 2d at 204. To ensure that the requisite level
of assistance is provided, Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) imposes specific
duties on postconviction counsel. If, after demonstrating compliance with Rule 651(c),
appointed counsel determines that the pro se petition is frivolous or patently without merit,
appointed counsel may—and should—move to withdraw from representation. Greer, 212 Ill. 2d
at 209, 211-12. The court in Greer said:
“We are confident that the legislature did not intend to require appointed counsel to
continue representation of a postconviction defendant after counsel determines that
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2018 IL App (2d) 170120defendant’s petition is frivolous and patently without merit. Nothing in the Act requires
the attorney to do so, and the attorney is clearly prohibited from doing so by his or her
ethical obligations.” (Emphasis omitted.) Id. at 209.
¶ 34 Also at the second stage, the State is permitted to answer the petition or move to dismiss
it. See 725 ILCS 5/122-5 (West 2010). To survive the second stage, the petition must make a
substantial showing of a constitutional violation. Bailey, 2017 IL 121450, ¶ 18. The court must
accept as true all well-pleaded facts that are not positively rebutted by the record. People v.
Pendleton, 223 Ill. 2d 458, 473 (2006). Review of a second-stage dismissal is de novo. Id.Counsel’s compliance with Rule 651(c) is also reviewed de novo. People v. Profit, 2012 IL App
(1st) 101307, ¶ 17.
¶ 35 Defendant claims that it was error for the trial court to permit postconviction counsel to
withdraw where counsel neither (1) addressed the potential merit of his ineffectiveness claim
based on the amendment to the indictment nor (2) demonstrated compliance with Rule 651(c).
As defendant recognizes, our review of an order permitting postconviction counsel to withdraw
differs depending on whether the pro se petition advanced to the second stage because the trial
court deemed it potentially meritorious or instead because the trial court took no action on the
petition within 90 days of its filing. Under People v. Kuehner, 2015 IL 117695, ¶ 27, if the
petition advanced because the trial court found potential merit, then “appointed counsel’s motion
to withdraw must contain at least some explanation as to why all of the claims set forth in that
petition are so lacking in legal and factual support as to compel his or her withdrawal from the
case.” (Emphasis added.) The supreme court explained why it placed that burden on appointed
counsel:
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2018 IL App (2d) 170120“[A] request for leave to withdraw as counsel after a first-stage judicial determination
that the pro se petition is neither frivolous nor patently without merit is an extraordinary
request. The reason for this is that, in making such a determination and advancing the
petition to the second stage, the trial court is granting the pro se defendant the first form
of relief afforded by the Act, namely, the appointment of counsel to represent the
defendant’s interests going forward (725 ILCS 5/122-4 (West 2008)). A subsequent
motion to withdraw is effectively an ex post request to deny the defendant that very relief,
and it comes not from the State but from defendant’s own counsel. Accordingly, we have
no reservations about requiring appointed counsel to make the case in the motion to
withdraw as to why the relief previously granted his or her client should be undone, and
to make that case with respect to each and every pro se claim asserted.” (Emphasis
omitted.) Id. ¶ 22.
In Kuehner, the court found that appointed counsel’s motion to withdraw was inadequate
because it did not address the potential merit of all claims in the pro se petition. Id. ¶ 23. The
court vacated the orders permitting counsel to withdraw and dismissing the petition, and the
court remanded for appointment of new postconviction counsel. Id. ¶ 27.
¶ 36 The court in Kuehner contrasted the facts before it with the facts in Greer, where the
pro se petition advanced to the second stage through the trial court’s failure to act upon it within
90 days. In Greer, appointed counsel’s motion to withdraw stated that the petition lacked merit
because counsel was unable to “ ‘properly substantiate’ ” any of its claims. Greer, 212 Ill. 2d at
200. The trial court granted the motion to withdraw and dismissed the petition. The supreme
court affirmed the trial court. The court disapproved of appointed counsel’s terse assessment of
the defendant’s pro se claims, as “[a]n attorney moving to withdraw should make some effort to
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2018 IL App (2d) 170120explain why defendant’s claims are frivolous or patently without merit.” (Emphasis in original.)
Id. at 212. The court nonetheless affirmed the order permitting counsel to withdraw, because it
“appear[ed] that counsel fulfilled his duties as prescribed by Rule 651(c), and the record ***
support[ed] counsel’s assessment that the defendant’s postconviction claims were frivolous and
without merit.” Id.
¶ 37 The court in Kuehner recognized that the language in Greer has engendered “some
measure of confusion” in the appellate courts over whether appointed counsel’s motion to
withdraw is properly granted where the motion fails to provide some explanation as to why each
of the claims in the pro se petition lacks potential merit. Kuehner, 2015 IL 117695, ¶ 16. The
court in Kuehner declined to “resolv[e] that tension,” however, because the facts before it were
so different from the facts in Greer. Id. ¶ 18.
¶ 38 In People v. Komes, 2011 IL App (2d) 100014, this court took a side in the debate over
how to interpret Greer. We read Greer to hold that, even where the petition advances to the
second stage through the trial court’s inaction, appointed counsel’s motion to withdraw must
address the potential merit of all claims in the pro se petition. Nonetheless, we acknowledged
that, under Greer, judicial economy sometimes dictates affirming the grant of leave to withdraw
even where the motion to withdraw is deficient:
“Although the Greer court specified that a motion to withdraw should address all
of a petitioner’s claims, it also recognized that, under proper circumstances, the futility of
the representation is clear in spite of flaws in the motion. If the record shows that counsel
did everything required of him or her under Rule 651(c) and that all the claims in the
original petition were patently without merit, then it serves no purpose to reverse a grant
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2018 IL App (2d) 170120of leave to withdraw simply because of insufficiencies in the motion.” (Emphasis
omitted.) Id. ¶ 30.
Komes properly construed Greer. Accordingly, where appointed counsel is allowed to withdraw
from representation on a postconviction petition that advanced to the second stage automatically
because of the trial court’s inaction, we will uphold the withdrawal if (1) counsel complied with
Rule 651(c) and (2) the record demonstrates that the claims in the pro se petition were frivolous
or patently without merit.
¶ 39 In the present case, the petition advanced to second-stage review because the trial court
did not act upon it within 90 days of its filing. The first order in the record relating to the
October 2010 petition is the May 2012 order appointing counsel. Even if we can infer from the
clerk’s August 2011 letter to defendant that the petition was docketed for second-stage review as
of August 2011, we cannot infer that it was docketed earlier than August 2011, which was still
beyond the 90-day window.
¶ 40 Therefore, our review proceeds under Greer rather than Kuehner. We hold that the trial
court erred in permitting counsel to withdraw, because counsel failed to demonstrate compliance
with Rule 651(c). The Act entitles a postconviction petitioner to a “ ‘reasonable’” level of
assistance by counsel. Greer, 212 Ill. 2d at 204. To ensure that the petitioner receives that level
of assistance, Rule 651(c) provides that postconviction counsel must (1) “consult[ ] with
petitioner *** to ascertain his or her contentions of deprivation of constitutional rights,”
(2) “examine[ ] the record of the proceedings at the trial,” and (3) “[make] any amendments to
the petition filed pro se that are necessary for an adequate presentation of petitioner’s
contentions.” Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). Thus, “[o]ne of postconviction counsel’s
duties is to ascertain the petitioner’s claims.” Komes, 2011 IL App (2d) 100014, ¶ 32.
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2018 IL App (2d) 170120Compliance with Rule 651(c) may be demonstrated though a certificate filed by counsel or
through the record as a whole. People v. Lander, 215 Ill. 2d 577, 584 (2005).
¶ 41 The record indicates that appointed counsel failed to recognize defendant’s amendment
claim among the multiple claims in his pro se petition. In the Rule 651(c) certificate that counsel
filed with her motion to withdraw, she stated that she (1) “reviewed [defendant’s] pro se filings
concerning [this] matter,” (2) “examined the entire record to ascertain any errors or constitutional
deprivations,” and (3) “consulted with [defendant] in person concerning potential issues.” In her
motion to withdraw, counsel stated that she consulted with defendant on specific dates “to
ascertain and discuss his contentions of deprivation of constitutional rights.” She further stated
that she “reviewed the entire record available to her *** and *** concluded that [defendant’s]
petition present[ed] no issue of merit upon which [defendant] could expect to obtain relief.”
Counsel then purported to state what, “[i]n short, the petition and its related documents allege.”
She set forth four individual claims and explained why they lacked potential merit. Several
months later, counsel filed an “addendum” to the motion to withdraw. Counsel noted that the
trial court had asked her to “address two additional points found in [the] post conviction
petition,” which counsel failed to address in her motion to withdraw. Counsel proceeded to
address two additional claims and explain why they were not potentially viable. At the hearing
on the motion to withdraw, counsel asserted that, in her motion, she “went through the issues and
stated *** positions and case law to address each one.” (Emphasis added.)
¶ 42 Thus, counsel confirmed at the hearing that her motion purported to recapitulate the
claims of the petition as she understood them. However, in neither her original motion nor its
addendum did counsel acknowledge the amendment claim. This was because, we infer, counsel
did not discern the claim among the others. Counsel’s oversight was perhaps understandable,
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2018 IL App (2d) 170120given the length and density of the pro se petition, but counsel was not thereby excused from
compliance with Rule 651(c)’s mandate that she “ascertain [defendant’s] contentions of
deprivation of constitutional rights.” Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). “Unless the record
shows that counsel has, in fact, ascertained the petitioner’s claims, we cannot assume that the
claims are in their final form, and deciding their frivolity is likely to be premature.” Komes,
2011 IL App (2d) 100014, ¶ 32.
¶ 43 We recognize that a reviewing court has permission under Greer to affirm the grant of a
motion to withdraw even where counsel has not explained why each of the petitioner’s claims
lacks potential merit. But Greer was unequivocal that the reviewing court cannot relieve counsel
of his or her duty under Rule 651(c) to ascertain the petitioner’s claims. Greer, 212 Ill. 2d at
212. Counsel in Greer at least understood what the pro se petition contained. Counsel “stated,
as to each issue raised in defendant’s pro se petition, that counsel could not ‘properly
substantiate’ the claim.” Id. at 195. Obviously, it is imperative that counsel ascertain what the
pro se petition actually contains before asserting to a court that the petition lacks potential merit.
We stress that we do not read Greer as prescribing any particular form for a motion to withdraw.
Our holding is simply that here, though counsel attempted twice to state the claims in the pro se
petition, we cannot conclude that counsel ascertained the claim that she failed to mention in
those two tries.
¶ 44 Given counsel’s apparent failure to discern the amendment claim, we cannot deem the
claim to have been in its “final form” when the trial court evaluated its potential merit. It would
likewise be premature for us, on review, to judge the claim’s potential merit. See Suarez, 224 Ill.
2d at 52 (harmless-error analysis does not apply to Rule 651(c) violations, as “compliance must
be shown regardless of whether the claims made in the pro se or amended petition are viable”).
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2018 IL App (2d) 170120¶ 45 We therefore vacate the orders permitting counsel to withdraw and later dismissing the
pro se petition. Given the particular circumstances of this case, we grant defendant’s request for
the appointment of new postconviction counsel. We provide the same direction that we did in
Komes:
“On remand, the [trial] court should not grant any motion to withdraw unless counsel
documents Rule 651(c) compliance. Further, any motion to withdraw that counsel files
should demonstrate the frivolity of every claim of defendant’s.” Komes, 2011 IL App
(2d) 100014, ¶ 36.
¶ 46 III. CONCLUSION
¶ 47 For the foregoing reasons, we vacate the orders permitting defendant’s appointed counsel
to withdraw and dismissing defendant’s pro se postconviction petition. We remand for further
proceedings as directed.
¶ 48 Vacated and remanded with directions.
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