People v. Thomas ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Thomas, 2013 IL App (2d) 120646
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption LLOYD T. THOMAS, Defendant-Appellant.
District & No. Second District
Docket No. 2-12-0646
Filed June 20, 2013
Held The second-stage dismissal of defendant’s postconviction petition was
(Note: This syllabus upheld where the attorney initially appointed for defendant was replaced
constitutes no part of by a second attorney, the second attorney was allowed to withdraw
the opinion of the court pursuant to a motion alleging that the petition was frivolous and patently
but has been prepared without merit, then the trial court reappointed the second attorney,
by the Reporter of subsequently replaced her with the initial attorney, and then allowed the
Decisions for the initial attorney to withdraw on the ground that “successive court-
convenience of the appointed counsel” was not allowed, since there is no constitutional right
reader.)
to counsel in postconviction proceedings, and in defendant’s case, no
unusual circumstances were set forth that would justify the reappointment
of his final counsel.
Decision Under Appeal from the Circuit Court of Kane County, No. 00-CF-2621; the
Review Hon. Timothy Q. Sheldon, Judge, presiding.
Judgment Affirmed.
Counsel on Karen Munoz and Arden J. Lang, both of State Appellate Defender’s
Appeal Office, of Springfield, for appellant.
Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
Bauer and Barry W. Jacobs, both of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices McLaren and Birkett concurred in the judgment and opinion.
OPINION
¶1 Defendant, Lloyd T. Thomas, appeals from an order of the circuit court of Kane County
granting the State’s motion to dismiss his pro se petition under the Post-Conviction Hearing
Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)) for relief from his convictions of three
counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 2000)
(renumbered as section 11-1.30 by Pub. Act 96-1551, art. 2, § 5 (eff. July 1, 2011))).
Defendant argues that he did not receive a reasonable level of assistance of counsel during
the proceedings below, inasmuch as his court-appointed attorney did not comply with Illinois
Supreme Court Rule 651(c) (eff. Dec. 1, 1984). The attorney in question was appointed after
the trial court granted another attorney’s motion to withdraw on the basis that defendant’s
petition was frivolous and patently with merit. Because we hold that under the facts of this
case, after the trial court granted the motion to withdraw defendant had no further right to the
assistance of counsel, we affirm.
¶2 Defendant was convicted following a bench trial and was sentenced to consecutive 10-
year prison terms. We affirmed the convictions. People v. Thomas, No. 2-02-0405 (2003)
(unpublished order under Supreme Court Rule 23) (Thomas I). Defendant filed his
postconviction petition on July 17, 2004. The trial court took no action on the petition until
April 27, 2005, when the court appointed counsel to represent defendant. Defendant was
initially represented by attorney Ron Dolak. Attorney Rachel Hess later replaced Dolak as
counsel for defendant. The record contains a certificate executed by Hess indicating, inter
alia, that she had consulted with defendant by mail and by telephone and had reviewed the
record of the proceedings at trial.
¶3 On May 8, 2009, Hess moved to withdraw pursuant to People v. Greer, 212 Ill. 2d 192
(2004). In Greer, our supreme court held that an attorney appointed to represent a criminal
defendant in a proceeding under the Act is ethically bound to withdraw when the defendant’s
petition is frivolous and patently without merit. Id. at 209. The trial court granted Hess’s
motion to withdraw and denied defendant’s postconviction petition. Defendant appealed and
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we vacated the denial of the petition. People v. Thomas, No. 2-09-0908 (2011) (unpublished
order under Supreme Court Rule 23) (Thomas II). We reasoned that the trial court erred in
denying defendant’s petition before the State had either answered the petition or moved to
dismiss it. Id. at 2.
¶4 In Thomas II, we did not consider whether the trial court erred in permitting Hess to
withdraw. For reasons that are not altogether clear, however, the trial court reappointed Hess
to represent defendant. The court later appointed Dolak to replace Hess as defendant’s
attorney. Dolak subsequently moved to withdraw. Noting that Hess had previously been
permitted to withdraw pursuant to Greer, Dolak argued, inter alia, that the Act does not
authorize “successive court-appointed counsel.” The trial court agreed with that argument
and permitted Dolak to withdraw. The trial court also granted the State’s motion to dismiss
defendant’s petition. (The State had filed the motion while Dolak’s motion to withdraw was
pending.) This appeal followed.
¶5 Under the Act, a person imprisoned for a crime may mount a collateral attack on his
conviction and sentence based on violations of his or her constitutional rights. People v.
Erickson, 183 Ill. 2d 213, 222 (1998). Proceedings under the Act are divided into three
stages. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). During the first stage, the trial court
independently examines the petition within 90 days after it is filed and docketed. 725 ILCS
5/122-2.1(a) (West 2004). If the petition is frivolous or patently without merit, it will be
summarily dismissed. 725 ILCS 5/122-2.1(a)(2) (West 2004). The petition may not be
summarily dismissed where, as in this case, the trial court fails to do so within the 90-day
period. People v. Inman, 407 Ill. App. 3d 1156, 1162 (2011). If the petition is not dismissed
at the first stage, it proceeds to the second stage, at which an indigent defendant is entitled
to appointed counsel, the petition may be amended, and the State may answer or move to
dismiss the petition. Gaultney, 174 Ill. 2d at 418.
¶6 Defendant argues on appeal that the second-stage dismissal of his postconviction petition
must be reversed because he did not receive the level of legal assistance from Dolak to which
he was entitled. It is well settled that “[t]here is no constitutional right to counsel in
postconviction proceedings.” People v. Daniels, 388 Ill. App. 3d 952, 960 (2009). The right
to counsel at the second and third stages of a postconviction proceeding is purely statutory.
Id. Although the Act does not, by its terms, specify the quality of legal representation that
postconviction counsel must provide, “our supreme court has placed its gloss upon the
statute, holding that defendants are entitled to a reasonable level of assistance, but are not
assured of receiving the same level of assistance constitutionally guaranteed to criminal
defendants at trial.” People v. Kegel, 392 Ill. App. 3d 538, 540-41 (2009) (citing People v.
Owens, 139 Ill. 2d 351, 364 (1990)). The duty to provide reasonable assistance requires
compliance with the specific obligations described in Rule 651(c). See People v. Davis, 382
Ill. App. 3d 701, 711 (2008). That rule provides, in pertinent part, that “[t]he record [on
appeal] shall contain a showing, which may be made by the certificate of petitioner’s
attorney, that the attorney has consulted with petitioner either by mail or in person to
ascertain his contentions of deprivation of constitutional right, has examined the record of
the proceedings at the trial, and has made any amendments to the petitions filed pro se that
are necessary for an adequate presentation of petitioner’s contentions.” Ill. S. Ct. R. 651(c)
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(eff. Dec. 1, 1984). “[T]he purpose of Rule 651(c) is to ensure that counsel shapes the
petitioner’s claims into proper legal form and presents those claims to the court.” People v.
Perkins, 229 Ill. 2d 34, 44 (2007).
¶7 It is undisputed that Dolak did not certify, and that the record does not otherwise
establish, that he fulfilled the specific obligations set forth in Rule 651(c) before the trial
court granted his motion to withdraw. Defendant argues that Dolak therefore failed to
provide a reasonable level of assistance. The argument gives short shrift to the trial court’s
stated reason for granting Dolak’s motion–that the Act does not provide for “successive
attorneys.” In so ruling, the trial court effectively acknowledged that there was no basis for
appointing Dolak after defendant’s prior attorney had been allowed to withdraw under Greer.
In Greer, as in this case, counsel was appointed for the defendant not because the trial court
had concluded that his postconviction petition set forth any meritorious claim, but because
the trial court neglected to examine the petition within the 90-day period during which the
trial court was authorized to summarily dismiss the petition. The Greer court noted that an
attorney appointed under such circumstances “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. Although the Act does not expressly
authorize counsel to withdraw in such a case, the Greer court concluded that permitting
counsel to withdraw was consistent with the legislative intent underlying the Act. Id. at 209.
In reaching this conclusion, the Greer court reasoned, in part, as follows:
“[T]he legislature has seen fit to confer upon the circuit court the power, without the
necessity of appointing counsel, to dismiss, outright, petitions at first stage when they are
deemed frivolous or patently without merit. The fact that the legislature has required
appointment of counsel for indigent defendants when the circuit court has not considered
a postconviction petition in a timely manner does not, in our opinion, indicate that the
legislature intended that such a defendant have continuing representation throughout the
remainder of postconviction proceedings, where counsel later determines that the petition
is frivolous or clearly without merit. The purpose behind appointment of counsel in the
latter instance might be, and probably is, nothing more than a desire to jump-start a
process that has shown no signs of progress. There appears to be no other rationale for
treating similarly situated defendants differently. Each defendant has filed a frivolous
petition. The legislature surely did not intend to accord the latter defendant continuing
representation after counsel determines the petition to be frivolous when the former
defendant is never given counsel in the first place.” (Emphases in original and added.)
Id. at 208-09.
We read the words “continuing representation” in the above passage to mean representation
by any appointed attorney (as opposed to representation by the particular attorney seeking
to withdraw). To hold otherwise–i.e., to hold that the statutory right to counsel persists after
an attorney has been permitted to withdraw under Greer–would lead to precisely the sort of
disparate treatment that the Greer court denounced. Perhaps more importantly, to appoint
successor counsel after granting an attorney’s motion to withdraw under Greer would
ordinarily be an empty gesture, inasmuch as successor counsel would be obliged to withdraw
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for precisely the same reasons that led his or her predecessor to withdraw. Thus, while the
precise issue before the court in Greer was whether an attorney appointed under the Act may
withdraw when his or her client’s petition is incurably meritless, the import of the Greer
court’s reasoning is that, once an attorney appointed to represent a defendant in a
postconviction proceeding has withdrawn in conformity with the requirements of Greer,
there will be no further statutory right to counsel, at least in the absence of unusual
circumstances.
¶8 After Hess withdrew in this case, the trial court denied defendant’s postconviction
petition sua sponte. In Thomas II we held that the trial court was not authorized to dispose
of the petition until the State had either answered or moved to dismiss. We did not hold,
however, that the trial court had erred in permitting Hess to withdraw under Greer or that
defendant was entitled to appointed counsel on remand. Moreover, the record discloses no
unusual circumstances that warranted the appointment of counsel, and the trial court gave
no explanation for its decision to appoint counsel.
¶9 Although the trial court appointed counsel on remand, it cannot be said that the
appointment was truly under the auspices of the Act. Consequently, defendant was not
entitled to the level of assistance guaranteed when the Act actually provides a right to
counsel. Cf. Kegel, 392 Ill. App. 3d at 541 (because defendant’s petition was summarily
dismissed, statutory right to counsel never arose, so defendant could not challenge summary
dismissal on the basis that he did not receive a reasonable level of assistance from the
privately retained attorney who prepared the petition). Because defendant had no right to a
reasonable level of assistance from Dolak, Dolak’s failure to fulfill the duties specified in
Rule 651(c) is not grounds for reversal of the dismissal of defendant’s postconviction
petition.
¶ 10 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.
¶ 11 Affirmed.
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