People v. Johnson ( 2018 )

2018 IL App (5th) 140486
NOTICE
Decision filed 02/16/18. The
text of this decision may be NO. 5-14-0486
changed or corrected prior to
the filing of a Petition for
Rehearing or the disposition of
IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Montgomery County.
)
v. ) No. 12-CF-7
)
SHANNON D. JOHNSON, ) Honorable
) Kelly D. Long,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
Justices Moore and Overstreet concurred in the judgment and opinion.
OPINION
¶1 The defendant, Shannon D. Johnson, pled guilty to one count of aggravated participation
in methamphetamine manufacturing (720 ILCS 646/15(b)(1)(B) (West 2010)). He subsequently
filed a pro se petition for relief from judgment. The court appointed a public defender to
represent him. The public defender filed a motion to withdraw, arguing that there were no
meritorious arguments for him to present. Six days before counsel’s motion came for a hearing,
the defendant filed a pro se postconviction petition. At a hearing on counsel’s motion, the court
allowed counsel to withdraw and appointed a new public defender to represent the defendant.
The new public defender subsequently filed a motion to withdraw, asserting that she likewise
found no meritorious arguments to present. The court granted the motion after a hearing and
subsequently granted the State’s motion to dismiss. The defendant appeals, arguing that the
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court’s ruling deprived him of his statutory right to the reasonable assistance of postconviction
counsel. We reverse.
¶2 In January 2012, police obtained a warrant to search the defendant’s property. The
warrant was supported by a tip from a confidential informant as well as police surveillance of the
property. The informant told police that he had observed the defendant manufacturing
methamphetamine in a camper with a codefendant, Renee Price. The search warrant authorized
the search of property located at “315 West Barry Street, Witt, Montgomery County, Illinois,
described as follows: A yellow vinyl-sided single-wide trailer with a white and yellow older
camper trailer on the property and a white Dodge pickup truck.”
¶3 When officers executed the search warrant, they discovered items used in the
manufacture of methamphetamine in both the trailer and the camper; they did not find any
incriminating evidence in the pickup truck. On January 9, 2012, the State filed a two-count
information, charging the defendant with aggravated participation in methamphetamine
manufacturing (id.) and participation in methamphetamine manufacturing (id. § 15(a)(1)).
¶4 On August 16, 2012, the defendant filed a motion to suppress evidence and quash his
arrest. He alleged that, although the camper searched by police matched the physical description
of the camper identified in the search warrant, it was not located on 315 West Barry Street, the
property identified in the warrant. He argued that the search therefore violated the “particularity
requirement” of the fourth amendment. See People v. Gonzalez, 316 Ill. App. 3d 354, 360 (2000)
(explaining that a search warrant “must state with particularity the place to be searched”).
¶5 On the same day, the defendant filed a motion to disclose the identity of the confidential
informant. He alleged that the informant’s “credibility was at stake at the time of the issuance of
the search warrant.” He requested the disclosure of information about the confidential source,
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including what, if any, incentives were offered to him to engage in controlled buys or conduct
surveillance of the defendant, his criminal history, and whether any charges were pending
against him at the time he provided information about the defendant to police.
¶6 The following day, August 17, the court held a motion hearing. Inspector Justin Gonzalez
of the Southern Illinois Drug Task Force was the sole witness. He testified that the confidential
informant described the camper in detail and told police that the defendant and Renee Price were
cooking methamphetamine in it. Inspector Gonzalez further testified that he had been informed
both that the defendant owned the camper and that he was using it to manufacture
methamphetamine.
¶7 Defense counsel attempted to ask Inspector Gonzalez questions related to the reliability
of the confidential source. However, the State objected to these questions on the basis of
relevance. In response, defense counsel reminded the court that there was an issue concerning the
informant’s credibility. The court asked counsel where in his motion to suppress those
allegations were, to which counsel replied, “It’s not in my motion.” The court sustained the
objections.
¶8 Inspector Gonzalez was shown an aerial photograph taken a few days before the hearing.
In the photograph, the camper appeared to be located on a property across the street from the
defendant’s property. Inspector Gonzalez stated that the camper was “definitely” not in that
location when he executed the search warrant. He described the location of the camper in detail.
He testified that the camper was parked near a fire pit, which was located between the camper
and the trailer. He further testified that a cable was set up as a dog run, with one end of the cable
attached to the camper and the other end attached to the trailer. Inspector Gonzalez noted that he
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included this description in his police report. He acknowledged that he did not know the precise
location of the property line.
¶9 After Inspector Gonzalez testified, the court indicated that the description of the camper
included in the search warrant was sufficiently specific to support a valid warrant. However, the
court did not rule on the defendant’s motion prior to taking a recess. After the recess, the
defendant withdrew his motion to suppress and waived his right to a jury trial. Defense counsel
indicated that he anticipated that the defendant would plead guilty. On September 26, 2012, the
defendant pled guilty pursuant to a negotiated plea agreement. In accordance with the agreement,
he was sentenced to 10 years in prison, a $3000 drug assessment fee, and the forfeiture of his
truck.
¶ 10 On June 18, 2013, the defendant filed a pro se petition for relief from judgment pursuant
to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)). He alleged
that he did not own or occupy the property where the evidence was found and that trial counsel
was aware of this fact. He alleged that he provided trial counsel with the name of the person who
owned the camper and the names of individuals who could testify as to the precise location of the
property line, but counsel never contacted these individuals. He further alleged that when Renee
Price pled guilty, she admitted that all of the methamphetamine-manufacturing items found on
the property belonged to her, not the defendant. The defendant alleged that there was no
evidentiary hearing to address these issues. Finally, he alleged that the truck was seized without
any evidence that it had been used for illegal activity.
¶ 11 Along with his section 2-1401 petition, the defendant filed a motion for the appointment
of counsel. On July 22, 2013, the State filed a motion to strike the defendant’s section 2-1401
petition, arguing that (1) the petition did not allege any information that was not available to the
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trial court during plea proceedings and (2) the petition raised “procedural issues with counsel,”
which were not appropriate for a section 2-1401 petition. At a July 22 hearing, the court granted
the defendant’s motion and appointed Public Defender David Grigsby to represent him.
¶ 12 On December 8, 2013, Grigsby filed a motion to withdraw. He argued that the
defendant’s petition was, in substance, a postconviction petition. Grigsby noted that during the
plea proceedings, the defendant did not object to the factual basis for his plea and did not move
to withdraw his plea. Moreover, when asked by the court if he was happy with the representation
of plea counsel, the defendant said “Yes.” Grigsby asserted that, based on his review of the
record, he could find no basis to argue that the defendant’s plea was the result of a substantial
denial of a constitutional right, as is required under the Post-Conviction Hearing Act (725 ILCS
5/122-1 et seq. (West 2012)).
¶ 13 While Grigsby’s motion to withdraw was pending, the defendant filed three pro se
pleadings. On December 27, 2013, he filed a motion for leave to amend. In it, he asked the court
for leave to amend, and stated, “Defendant moves this Honorable Court for Post-Conviction
relief.” On February 21, 2014, he filed a pro se postconviction petition and a pro se motion,
requesting the appointment of a different attorney. In his postconviction petition, the defendant
asserted that the trial court did not make an adequate inquiry into the factual basis for his plea,
that he was “pressured” into pleading guilty because his attorney believed that was the “only
possible outcome,” and that he received ineffective assistance of counsel. The defendant
advanced three arguments in support of his ineffective assistance claim. He argued that the
camper was not on his property at the time it was searched, although the search warrant specified
that the camper to be searched was located on his property. He also asserted that the confidential
source was not reliable and that counsel failed to object to forfeiture of the defendant’s vehicle.
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¶ 14 The pending motions came for a hearing six days later, on February 27. At the outset, the
court called attention to the defendant’s motion to amend, noting that the defendant wanted “to
change his petition under section [2-1401] to a postconviction petition.” Grigsby offered to file
an amended petition to withdraw in order to address the defendant’s recently filed pleadings. The
court asked the defendant what his position was, to which the defendant replied, “I filed the
amended postconviction. I guess it’s your decision, Your Honor.” The court explained that it was
asking the defendant if he wanted Grigsby to continue to represent him. The defendant
responded, “No.” At this point, the court granted Grigsby’s motion to withdraw.
¶ 15 The court then asked the defendant if he wanted to represent himself or if he wanted
another attorney appointed to represent him. The defendant stated that he wanted the court to
appoint a new attorney. The court asked the state’s attorney his position on the matter. The
state’s attorney informed the court that he had reviewed the defendant’s postconviction petition.
He stated, “I *** don’t believe that it has any merit. I don’t know if this court—has the court
reviewed—I believe we would be at the first stage of a post-conviction petition because it’s just
now been filed.” He argued that, because the defendant’s pro se petition was at the first stage of
postconviction proceedings, it was up to the court to review the petition and either “let it
continue or dismiss it sua sponte.” The court replied, “I’m not going to dismiss it on that
premise.” The court then appointed Public Defender Stacey Cellini Hollo to represent the
defendant.
¶ 16 On May 16, 2014, Hollo filed a motion to withdraw. She noted that the record was “void
of any indication as to whether or not the court found the amended pleadings set forth the gist of
a meritorious claim prior to appointing counsel.” Hollo certified that she consulted with the
defendant; reviewed the entire court file, including the transcripts of the proceedings; examined
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the discovery tendered to the defendant by the State; and interviewed Inspector Gonzalez, Witt
Police Chief Scott Woods, and the two attorneys involved in the plea proceedings. She asserted
that, based upon her investigation, she could “find no basis on which to present any meritorious
issue for review.”
¶ 17 In a supporting memorandum, Hollo explained that after consulting with the defendant,
she determined that he wanted her to raise four claims, each of which she found to be without
merit. The first of these claims was a contention that trial counsel was ineffective for failing to
undertake an independent investigation about the ownership of the camper and the location of the
property line. Hollo believed that this claim lacked merit because trial counsel told her that he
did look into the defendant’s claims, Chief Woods told her that the basis for seeking the search
warrant was that the defendant held the camper out as being his own, and these statements were
supported by the hearing transcripts. The next issue the defendant wanted Hollo to present was a
claim that his guilty plea was not voluntary; however, she found that this claim was refuted by
the transcript of the plea hearing. The third claim the defendant wanted Hollo to present was an
argument that trial counsel was ineffective for failing to review discovery documents with him.
Hollo found this claim to be without merit because trial counsel denied it and the defendant
never voiced this concern during the plea proceedings. Finally, the defendant wanted Hollo to
present his contention that trial counsel was ineffective for failing to present motions; however,
Hollo found that this claim, too, lacked merit because it was refuted by the record.
¶ 18 On July 23, 1014, the defendant sent a letter to the court. In it, he asked that the court
deny Hollo’s motion to withdraw. Alternatively, he asked that the court appoint a new attorney
to represent him if it did allow Hollo to withdraw. He asserted that he believed that his case had
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merit, and he noted that his claim concerning ownership of the camper was at the heart of his
case.
¶ 19 On August 16, 2014, the court held a hearing on Hollo’s motion to withdraw. The court
asked both the state’s attorney and the defendant if they had any objections. The state’s attorney
replied, “No, sir.” The defendant replied, “Just I believe my case had merit, Your Honor.” The
court responded, “No, we are not on that part now.” The court explained that counsel “has a
professional opinion” that the petition lacks merit and “doesn’t feel that she can ethically amend
[the] petition to say what you want her to say *** so she wants to withdraw.” The defendant then
stated, “If she wants to withdraw, I have no reason to—.” At this point, the court interrupted the
defendant and granted Hollo’s motion to withdraw.
¶ 20 The court informed the defendant that if he requested the appointment of a third attorney
to represent him, the court would deny that request. The court explained that the right to counsel
in postconviction proceedings is statutory rather than constitutional and that two attorneys had
already found the defendant’s claims to be without merit. The defendant asked to proceed that
day with a hearing on his petition, noting that if the court dismissed his petition, this would allow
him to “just send it to the appeals” court. The court denied that request, explaining that it could
not rule until the State had an opportunity to file a response to his petition. The State
subsequently filed a motion to dismiss the defendant’s petition, which the court granted. This
appeal followed.
¶ 21 Before addressing the parties’ arguments, we believe that an overview of the relevant law
would be helpful. The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012))
provides a mechanism by which a criminal defendant may challenge his conviction on the basis
of a substantial denial of his constitutional rights. People v. Nelson, 2016 IL App (4th) 140168,
8
¶ 14. Postconviction proceedings involve three stages, the first two of which are at issue in this
appeal. At the first stage of postconviction proceedings, the court reviews the petition to
determine whether it is frivolous and patently without merit. The court conducts this review
without input from the State. People v. York, 2016 IL App (5th) 130579, ¶ 15. To survive first-
stage dismissal and advance to the second stage, a petition need only set forth the gist of a
constitutional claim. Id. If the court finds that the petition does not meet this standard, it will
summarily dismiss the petition. People v. Thomas, 2013 IL App (2d) 120646, ¶ 5.
¶ 22 If the court does not dismiss the petition at the first stage, it must docket the matter for
second-stage proceedings. If the defendant is indigent, the court must appoint an attorney to
represent him. York, 2016 IL App (5th) 130579, ¶ 15. At this stage, counsel may file an amended
petition for the defendant, and the State may respond by filing either a motion to dismiss or an
answer. Id. ¶ 16. The petition will survive a motion to dismiss and advance to the third stage if
the defendant has made a “ ‘substantial showing of a constitutional violation.’ ” Id. (quoting
People v. Little, 2012 IL App (5th) 100547, ¶ 12). The third stage generally involves an
evidentiary hearing on the defendant’s claims. Id.
¶ 23 Two features of the Post-Conviction Hearing Act are particularly pertinent to the
questions before us in this appeal. First, the postconviction court must conduct its first-stage
review within 90 days after the petition is filed. After 90 days, the court may not summarily
dismiss the petition. Thomas, 2013 IL App (2d) 120646, ¶ 5. Thus, the petition must be advanced
to the second stage of postconviction proceedings if the court has not reviewed the petition
within that time. Id. As a result, some postconviction petitions will inevitably advance to the
second stage even though they are frivolous and patently without merit. See People v. Greer, 212
Ill. 2d 192, 204 (2004).
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¶ 24 The second important feature of the Post-Conviction Hearing Act is that it provides a
right to counsel. Because the source of the right to postconviction counsel is statutory rather than
constitutional, both the duration of the right and the level of assistance guaranteed are limited to
what is mandated under the act. Id. at 203-04. The right to postconviction counsel thus differs
from the right to counsel at trial or on a direct appeal in two ways. First, the right to counsel
attaches only once the petition has advanced to the second stage. Id. at 203 (citing 725 ILCS
5/122-2.1, 122-4 (West 2000)). Second, the level of assistance guaranteed is a reasonable level of
assistance. Id. at 204.
¶ 25 Providing reasonable assistance requires postconviction counsel to perform certain duties
outlined in Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). That rule requires
postconviction counsel to consult with the defendant to determine the issues the defendant wants
raised, to examine the record of the trial or plea proceedings, and to make any amendments to the
petition “ ‘that are necessary for an adequate presentation of [defendant’s] contentions.’ ” Greer,
212 Ill. 2d at 205 (quoting Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984)). However, an attorney is not
required to amend the petition to present claims that are frivolous; indeed, an attorney may not
ethically advance arguments she knows to be meritless. Id. at 205-06. This presents a dilemma
when a petition that is in fact frivolous and patently without merit has advanced to the second
stage because the court failed to consider it within 90 days. See id. at 206-07. As we will discuss
later, counsel may face a similar dilemma if a petition is advanced to the second stage because it
appears meritorious on its face, but turns out to be frivolous. Our supreme court addressed
postconviction counsel’s obligations under these circumstances in Greer and People v. Kuehner,
2015 IL 117695.
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¶ 26 In Greer, the defendant’s pro se petition did not come to the attention of the trial court for
seven months after it was filed. Greer, 212 Ill. 2d at 194-95. The delay occurred because the
judge who presided at the defendant’s trial had since retired, and the clerk of the court failed to
bring the petition to the attention of the judge assigned to consider it. Id. at 200. Because the
petition had not been summarily dismissed within 90 days, the court docketed the matter for
second-stage proceedings and appointed counsel to represent the defendant. Id. at 195.
Appointed counsel later filed a motion to withdraw, asserting that he could find no meritorious
issues to present for review. The postconviction court granted the attorney’s motion to withdraw
and dismissed the defendant’s petition sua sponte. Id.
¶ 27 On appeal, the Fourth District held that postconviction counsel may be allowed to
withdraw if he can demonstrate to the court that there are no meritorious claims to present on
behalf of the defendant. However, the Fourth District also held that the postconviction court
erred by dismissing the petition sua sponte because its authority to do so expired 90 days after
the petition was filed. Id.
¶ 28 The defendant appealed to the supreme court, arguing that the postconviction court was
not authorized to allow counsel to withdraw under the Post-Conviction Hearing Act. He argued
that by allowing counsel to withdraw, the court deprived the defendant of his statutory right to
the assistance of counsel. Id. at 195-96. The crux of this argument was that because the Post-
Conviction Hearing Act does not contain any provisions expressly allowing counsel to withdraw,
it must be construed as prohibiting counsel from withdrawing. Id. at 207. The supreme court
explained, however, that “[l]egislative ‘silence is not an unmistakable implication.’ ” Id. (quoting
Armstrong v. Resolution Trust Corp., 157 Ill. 2d 49, 60 (1993)).
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¶ 29 In rejecting the defendant’s interpretation, the supreme court repeatedly emphasized that
the petition in that case had been advanced to the second stage without the postconviction court
determining that it set forth the gist of a constitutional claim. Id. at 200, 202; see also Kuehner,
2015 IL 117695, ¶ 19 (emphasizing that the Greer court “noted over and over again [that] the
*** petition in that case arrived at the second stage not because the trial court made an
affirmative finding as to its merit but rather only because the trial court failed to make any
assessment of its merit in the prescribed statutory period” (emphasis in original)). The court
explained that under such circumstances, appointed counsel “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.
¶ 30 The court noted that, as we have discussed, counsel is not required to “advance frivolous
or spurious claims on [a] defendant’s behalf.” Id. at 205. The court emphasized that counsel may
not ethically present claims counsel knows to be frivolous. Id. at 206, 209. The court recognized
the dilemma that would be posed if postconviction counsel were not permitted to withdraw upon
finding that a defendant’s claims are frivolous. Id. at 206 (asking, “What is defense counsel to do
after he or she determines that defendant’s petition is frivolous? Is counsel to stand mute at all
subsequent proceedings?”).
¶ 31 The court also pointed out that appellate attorneys are allowed to withdraw as counsel if
they find no meritorious claims to present on behalf of their clients even though “the level of
assistance required [on a direct appeal] is of a higher magnitude and [is] of constitutional
dimension.” Id. at 209 (citing People v. Owens, 139 Ill. 2d 351, 364-65 (1990)). The court thus
concluded that “the legislature did not intend to require appointed counsel to continue
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representation of a postconviction defendant after counsel determines that defendant’s petition is
frivolous and patently without merit.” Id.
¶ 32 The Greer court went on to consider whether counsel’s motion to withdraw was properly
granted under the facts before it. The court explained that each of the claims in the defendant’s
petition were “clearly refute[d]” by the record in the plea proceedings. Id. at 210-11. The court
therefore agreed with counsel’s determination that the defendant’s claims were frivolous and
patently without merit. Id. at 210. The court also noted that it appeared from the record that
counsel had complied with the requirements of Rule 651(c). Id. at 212. The court concluded that,
under these circumstances, counsel was properly allowed to withdraw. Id.
¶ 33 The Greer court provided little guidance for how this holding should apply in other cases.
See Kuehner, 2015 IL 117695, ¶ 16 (acknowledging that its Greer holding led to confusion). The
court emphasized in Greer that “an attorney moving to withdraw should make some effort to
explain why defendant’s claims are frivolous or patently without merit.” (Emphasis in original.)
Greer, 212 Ill. 2d at 212. Counsel in Greer did not do this. Instead, he explained why he was
unable to “ ‘properly substantiate’ ” each claim. Id. at 195. The supreme court emphasized that
this was not the appropriate standard (id. at 211-12) and stated that the “procedure in the circuit
court [left] something to be desired” (id. at 212). The court nevertheless upheld the decision to
grant counsel’s motion to withdraw because it appeared that counsel had complied with Rule 651
and the defendant’s claims were refuted by the record.
¶ 34 In Kuehner, the supreme court acknowledged that its conclusion in Greer “generated
some measure of confusion” and led to a split of authority within the appellate court. Kuehner,
2015 IL 117695, ¶ 16. The court noted that some panels of the appellate court have interpreted
Greer as allowing counsel to withdraw as long as the record shows both that counsel complied
13
with Rule 651(c) and that the defendant’s claims are in fact frivolous. Id. (citing People v.
Kuehner, 2014 IL App (4th) 120901, ¶¶ 66, 71). Other panels have read Greer to require counsel
to provide at least some explanation as to why counsel believes each of the defendant’s claims is
frivolous and patently without merit. Id. (citing People v. Komes, 2011 IL App (2d) 100014,
¶¶ 28-29). (We note that this court has not decided this question.) The Kuehner court did not
resolve this question, however, because it found Greer distinguishable. Id. ¶ 18.
¶ 35 The difference, the court explained, is that in Kuehner, unlike in Greer, the trial court
explicitly found that the defendant’s pro se petition was not frivolous or patently without merit.
Id. ¶ 8. The supreme court found that because of this, “the burdens and obligations of appointed
counsel” in Kuehner were “decidedly higher than those that were present in Greer.” Id. ¶ 18.
This was so, the court explained, because once a postconviction court has “made an affirmative
determination that, on its face, the petition [is] neither frivolous nor patently without merit,”
counsel may not simply “second guess” the court’s determination. Id. ¶ 20. Rather, counsel’s role
is to clean up the defendant’s contentions so that they may be presented to the court as
effectively as possible. Id.
¶ 36 The court acknowledged, however, that in some cases, appointed counsel might
“discover[ ] something that ethically would prohibit counsel from *** presenting the defendant’s
claims to the court” in spite of the court’s initial determination that the petition was not frivolous
or patently without merit on its face. Id. ¶ 21. The supreme court explained that in such cases,
counsel may not seek to withdraw merely by asserting that the petition was frivolous and
patently without merit. Instead, the court held, “counsel bears the burden of demonstrating, with
respect to each of the defendant’s pro se claims, why the trial court’s initial assessment was
incorrect.” Id.
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¶ 37 The supreme court likened a motion to withdraw under these circumstances to a motion
to reconsider. Id. A motion to reconsider brings to the court’s attention changes in law, factual
matters that were not known to the court at the time it ruled, or errors of law the court made in its
initial ruling. Similarly, “a motion to withdraw filed subsequent to a trial court’s affirmative
decision to advance the petition to the second stage *** seeks to bring to the trial court’s
attention information that was not apparent on the face of the pro se petition” when the court
made its initial determination. Id.
¶ 38 We note that in Kuehner, the court focused on the obligations of appointed counsel in
filing a motion to withdraw after the court has found the petition adequate to survive first-stage
dismissal. See id. ¶¶ 18, 20-22. However, we believe that implicit in its holding is a requirement
that the postconviction court must actually determine that the petition is frivolous and patently
without merit before allowing counsel to withdraw. As we discussed earlier, the court analogized
such a motion to a motion to reconsider. Id. ¶ 21. The purpose of a motion to reconsider is, of
course, to persuade the court that its initial ruling should be overturned. Similarly, the Kuehner
court held that “counsel bears the burden of demonstrating” to the court that its initial
determination on the merits was wrong. (Emphasis added.) Id. In addition, the court noted that
“it is not asking too much to have counsel simply reduce his or her findings to writing and to
include them in the motion to withdraw so that both the trial court and the reviewing courts have
a basis for evaluating counsel’s conclusion.” Id. ¶ 22. With these principles in mind, we turn our
attention to the questions involved in the matter before us.
¶ 39 Resolution of this case requires us to answer three questions. First, did the postconviction
court advance the defendant’s petition to the second stage because it found that the petition
adequately stated the gist of a constitutional claim or because it failed to act on the petition
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within the applicable 90-day period? In other words, does Kuehner apply or does Greer apply?
Second, if Kuehner applies, did Hollo’s motion to withdraw comply with its requirements? And
third, if Hollo’s motion was adequate under Kuehner, did the court actually evaluate her
conclusions and determine that the petition was frivolous and patently without merit before
allowing her to withdraw and requiring the defendant to proceed pro se?
¶ 40 We first address the parties’ arguments concerning the reasons the court advanced the
defendant’s petition to the second stage. We note that this case is markedly different from both
Greer and Kuehner in this regard. In Greer, the postconviction court stated on the record that the
petition was advanced to the second stage only because the court did not review it within 90
days. Greer, 212 Ill. 2d at 200. In Kuehner, the postconviction court made an express finding
that the petition was not frivolous or patently without merit. Kuehner, 2015 IL 117695, ¶ 8. Here,
the court made no such express statements.
¶ 41 The defendant argues that although the court never expressly ruled that his petition was
not frivolous or patently without merit, it “did so by implication” when it appointed counsel
within 90 days. This is so, he contends, because the Post-Conviction Hearing Act only provides a
right to counsel once the court either makes that determination or fails to rule within 90 days. At
oral argument he explained, “There is no third option.” As such, the defendant contends, counsel
was required to comply with the standards of Kuehner before the court could grant her motion to
withdraw. The State, by contrast, argues that there is no indication that the postconviction court
found that the defendant’s petition stated the gist of a constitutional claim. The State asserts that
it is possible for a postconviction court to affirmatively advance a petition to the second stage
without finding that it has merit.
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¶ 42 We agree with the defendant that we may presume that the court found that his petition
was not frivolous or patently without merit, although we reach this conclusion for reasons that
are different from those he advances. In most cases, if a court appoints counsel and dockets the
matter for further proceedings within 90 days, we can safely infer that the court did in fact find
that the petition stated the gist of a constitutional claim even without an express statement to that
effect. In light of the unusual procedural history of this case, however, it is unclear from the
record whether the court did in fact make this determination. For the reasons that follow, we
believe it is appropriate to resolve this question in favor of the defendant and presume that the
court made this determination.
¶ 43 Much of the confusion stems from the fact that the defendant initially filed a section 2­
1401 petition containing claims that attorneys on both sides recognized were more appropriately
addressed in a postconviction petition. This was called to the court’s attention early on. At a July
22, 2013, pretrial hearing, the court asked the state’s attorney if he objected to the appointment
of counsel for the defendant. The state’s attorney replied, “I believe he’s filed a petition that
would appear to be ineffective assistance of counsel. That should not be under [section] 2-1401.”
The prosecutor argued that the section 2-1401 petition should be stricken for this reason, and he
objected to the appointment of counsel on this basis. He noted, however, that the defendant
should be allowed to amend his petition and that he would then be eligible for counsel with the
“appropriate motions on file.”
¶ 44 A circuit court has the authority to treat a section 2-1401 petition as a postconviction
petition if it raises claims that are cognizable under the Post-Conviction Hearing Act. See People
v. Shellstrom, 216 Ill. 2d 45, 51 (2005). There are often good reasons to do so. Id. at 52. One
reason to treat a section 2-1401 petition as a postconviction petition is to allow the pro se
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defendant’s claims to be presented in the proper procedural vehicle. As the prosecutor argued
early on in this case, a section 2-1401 petition is not an appropriate avenue for asserting claims
of ineffective assistance of counsel. See People v. Pinkonsly, 207 Ill. 2d 555, 567 (2003). In
addition, there is no right to the assistance of counsel under section 2-1401 as there is under the
Post-Conviction Hearing Act, although courts do have the discretion to appoint counsel in
section 2-1401 proceedings. People v. Kane, 2013 IL App (2d) 110594, ¶ 21.
¶ 45 The court in this case did not expressly state that it would treat the defendant’s petition as
a postconviction petition. However, the court also did not grant the State’s motion to strike the
petition; it appointed Grigsby to represent the defendant, knowing that in order to present the
defendant’s claims, Grigsby would need to bring them under the Post-Conviction Hearing Act.
By appointing counsel under these circumstances, the court took affirmative steps that in effect
advanced the petition to the second stage of postconviction proceedings.
¶ 46 On September 9, 2013, Grigsby appeared in court with the defendant for the first time.
Grigsby stated, “I think this is going to be a post-conviction petition, Judge.” He explained that
he needed time to review the “considerable paperwork” sent to him by the defendant before he
could amend the petition. He therefore asked that the matter be set for further pretrial
proceedings. As discussed previously, Grigsby filed his motion to withdraw in December 2013.
Shortly thereafter, the defendant filed a petition to amend, expressly invoking the Post-
Conviction Hearing Act.
¶ 47 Considering this history, it is possible that the reason the court appointed Grigsby to
represent the defendant on July 22, 2013—within 90 days after the defendant filed his pro se
petition—was that the court found that (1) it would be appropriate to treat the petition as a
postconviction petition and (2) the petition stated the gist of a constitutional claim. It is also
18
possible, however, that the court did not recharacterize the defendant’s petition until the hearing
on Grigsby’s motion to withdraw. As noted, the court stated at that hearing that the defendant
wanted to convert his section 2-1401 petition into a postconviction petition. If that is the case, the
court may have decided to advance his newly-recharacterized petition to the second stage by
appointing Hollo because, by this point, several months had elapsed since the defendant filed his
original petition. We also note that at that same hearing, the prosecutor argued that the court
should treat the pro se petition filed just before the hearing as a first-stage petition. The court did
not give its reason for declining to do so. It is possible the court found that the second pro se
petition stated the gist of a viable constitutional claim.
¶ 48 Although it is impossible to discern on this record whether the court did, in fact, review
the petition and find that it stated the gist of a constitutional claim, as stated previously, we
believe the defendant must be given the benefit of this doubt and the higher standard of Kuehner
should apply. We reach this conclusion for three reasons.
¶ 49 First, the procedures followed by the court throughout the proceedings below are
consistent with this presumption. Unlike what happened in Greer, the defendant’s petition in this
case came to the attention of the court immediately. The court held a status hearing on the
petition the day after it was filed. The court was aware that the allegations in the petition were
cognizable under the Post-Conviction Hearing Act at least as early as the July 22, 2013, hearing
at which the state’s attorney raised this point—only 34 days after the petition was filed. The
defendant was present at that hearing. The court could have told him that it intended to
recharacterize the petition as a postconviction petition in order to avoid granting the State’s
motion to strike on the grounds that the petition raised claims that were not cognizable in section
2-1401 proceedings. Had the court done so, it then would have had more than seven weeks to
19
conduct its first-stage postconviction review. The court also could have granted the State’s
motion to strike. Instead, the court appointed counsel. As stated earlier, it should have been clear
to the court at this time that appointed counsel would need to file a postconviction petition on the
defendant’s behalf in order to present his claims to the court. This is consistent with an
affirmative decision to advance the petition to the second stage, which implies a finding that the
petition was not frivolous or patently without merit.
¶ 50 Second, the supreme court’s rationale for imposing less exacting obligations on attorneys
in circumstances similar to those involved in Greer does not apply to this case. In Kuehner, the
court explained that the lower standard was warranted in Greer because “appointed counsel was
the very first person to lay eyes on and assess the pro se petition.” (Emphasis in original.)
Kuehner, 2015 IL 117695, ¶ 19. In the instant case, that is not true.
¶ 51 Third, we believe that a contrary conclusion would be at odds with the rights the Post-
Conviction Hearing Act is meant to protect. As the Kuehner court observed, an attorney’s
second-stage motion to withdraw is a request to deny the defendant “the first form of relief
afforded by the [Post-Conviction Hearing] Act, namely, the appointment of counsel” once a
court has granted that right. Id. ¶ 22. We must also emphasize that at the second stage of
postconviction proceedings, a petitioner must meet a higher standard to survive dismissal. As
previously discussed, while a petition need only set forth the gist of a constitutional claim to
survive first-stage dismissal (York, 2016 IL App (5th) 130579, ¶ 15), it must make a substantial
showing that a constitutional violation occurred in order to survive second-stage dismissal
(Little, 2012 IL App (5th) 100547, ¶ 12). Moreover, a second-stage petitioner must make this
showing in the face of adversarial participation by the State. See York, 2016 IL App (5th)
20 130579, ¶ 16. Obviously, a pro se petitioner is at a distinct disadvantage under such
circumstances.
¶ 52 We recognize that there are cases in which the situation we have described is inevitable
because appointed attorneys may not ethically present claims they know to be meritless.
However, we find that under the circumstances of the present case—where the trial court had the
opportunity to review the petition within 90 days and where the record does not clearly show that
the petition was advanced only because the court failed to do so—appointed counsel must meet
the higher standard set forth in Kuehner before the defendant may be denied his statutory right to
counsel and placed in the position of having to proceed pro se against the State in second-stage
proceedings.
¶ 53 We next consider whether Hollo’s motion to withdraw was adequate under Kuehner. At
the outset, we hasten to point out that Kuehner was decided after the trial court proceedings in
this matter were over. Thus, Hollo did not have the benefit of the Kuehner court’s guidance when
she prepared her motion to withdraw. As we have discussed at length, she also did not have the
benefit of knowing whether the trial court had, in fact, found that the petition stated the gist of a
constitutional claim. Nevertheless, as the State acknowledges, Kuehner is applicable to cases that
were pending on appeal when it was decided, including this case. See People v. Richey, 2017 IL
App (3d) 150321, ¶ 24 (citing Teague v. Lane, 489 U.S. 288 (1989), and People v. Price, 2016
IL 118613, ¶ 27).
¶ 54 The defendant’s pro se postconviction petition essentially raises five claims. In it, he
reiterates the arguments he raised in his section 2-1401 petition that (1) counsel was ineffective
for failing to adequately investigate the ownership of the camper and the location of the property
line, and (2) counsel was ineffective for failing to object to the forfeiture of his truck. In addition,
21
he asserts that (1) he was pressured to plead guilty because his attorney believed this was the
“only possible outcome,” (2) the court failed to make an adequate inquiry into the factual basis
underlying his plea, and (3) counsel was ineffective for failing to challenge the reliability of the
confidential informant. Hollo’s motion addressed two of these claims—the defendant’s claim
concerning the ownership of the camper and his claim that his plea was not voluntary. She also
addressed two additional claims the defendant apparently told her he wanted her to raise—
counsel’s alleged failure to review discovery documents with the defendant and counsel’s
alleged failure to present motions. However, she did not address the remaining three claims at
all. Under Kuehner, this warrants reversal. See Kuehner, 2015 IL 117695, ¶ 23 (noting that
“appointed counsel did an admirable job of explaining why she concluded that some of the
claims raised in defendant’s pro se petition lacked merit,” but reversing the decision to allow her
to withdraw because she did not address several other claims).
¶ 55 Finally, we believe that reversal is warranted in this case because there is no indication in
the record that the court ever actually considered whether Hollo was correct in asserting that the
defendant’s petition lacked merit. As discussed earlier, the defendant told the court that he
believed his petition had merit during the hearing on Hollo’s motion, to which the court
responded, “No, we are not on that part now.” However, that was precisely the question the court
was required to answer before allowing Hollo to withdraw. Before a court may grant an
attorney’s motion to withdraw and require the defendant to proceed pro se against a State motion
to dismiss, the court must actually evaluate counsel’s assertions and make its own determination
that the petition is frivolous and patently without merit. Instead, the court in this case told the
defendant that the merit of his petition was not at issue, asked if the defendant objected to
22
counsel’s withdrawal, interrupted the defendant before he could finish answering that question,
and then allowed counsel to withdraw. This is a far cry from what Kuehner requires.
¶ 56 For the reasons stated, we reverse the court’s rulings allowing Hollo to withdraw as
counsel and granting the State’s motion to dismiss, and we remand for further second-stage
proceedings. See Kuehner, 2015 IL 117695, ¶ 24. On remand, the court should appoint a new
attorney to represent the defendant. See id. ¶ 25. If necessary, that attorney may file a motion to
withdraw that meets the standards established by the supreme court in Kuehner, and the court
may grant the motion if, after evaluating counsel’s claims, the court finds that the petition is
frivolous and patently without merit.
¶ 57 Reversed; cause remanded.
23
2018 IL App (5th) 140486
NO. 5-14-0486
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Montgomery County.
)
v. ) No. 12-CF-7
)
SHANNON D. JOHNSON, ) Honorable
) Kelly D. Long,
Defendant-Appellant. ) Judge, presiding.
_____________________________________________________________________________
Opinion Filed: February 16, 2018
______________________________________________________________________________
Justices: Honorable Melissa A. Chapman, J.
Honorable James R. Moore, J., and
Honorable David K. Overstreet, J.,
Concur
______________________________________________________________________________
Attorneys Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy
for Defender, Ian C. Barnes, Assistant Appellate Defender, Office of the State
Appellant Appellate Defender, Fifth Judicial District, 909 Water Tower Circle, Mt.
Vernon, IL 62864
______________________________________________________________________________
Attorneys Hon. Christopher Matoush, State’s Attorney, Montgomery County Courts
for Complex Building, 120 North Main Street, Hillsboro, IL 62049; Patrick
Appellee Delfino, Director, David J. Robinson, Acting Deputy Director, Chelsea E.
Kasten, Staff Attorney, Office of the State’s Attorneys Appellate
Prosecutor, Fifth District Office, 730 E. Illinois Highway 15, Suite 2, P.O.
Box 2249, Mt. Vernon, IL 62864
______________________________________________________________________________