People v. Mares

2017 IL App (2d) 150565 No. 2-15-0565
Opinion filed January 26, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Boone County.
)
Plaintiff-Appellee, )
)
v. ) No. 10-CF-76
)
JEREMY R. MARES, ) Honorable
) C. Robert Tobin III,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
Justice McLaren specially concurred, with opinion.
Justice Jorgensen dissented, with opinion.
OPINION
¶1 Defendant, Jeremy R. Mares, appeals from an order of the circuit court of Boone County
granting the State’s motion to dismiss his amended petition under the Post-Conviction Hearing
Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)) for relief from his conviction of armed
violence (720 ILCS 5/33A-2(a) (West 2010)). Defendant argues that he is entitled to relief on the
basis that the disposition of his direct appeal violated Anders v. California, 386 U.S. 738 (1967),
and People v. Jones, 38 Ill. 2d 384 (1967). We affirm.
¶2 Defendant was convicted following a bench trial. The armed-violence conviction was
based on evidence that defendant committed the offense of aggravated battery while armed with
2017 IL App (2d) 150565
a “Category II weapon,” namely a box cutter. See 720 ILCS 5/33A-1(c)(2) (West 2010).
Defendant was also found guilty of several counts of aggravated battery based on the same
incident, but the trial court did not enter a judgment of conviction on those counts. The trial court
sentenced defendant to a 10-year prison term for armed violence. Defendant appealed, and the
Office of the State Appellate Defender was appointed to represent him. Appointed counsel did
not file an appellate brief. Instead, counsel filed an “Unopposed Motion for Summary
Disposition,” contending that the amount of court costs imposed by the trial court was excessive.
The motion sought a refund of the overcharge. The motion stated that “counsel has read the
complete record and has found no other issues to raise on appeal.” On July 12, 2013, we granted
the motion and refunded defendant $162. People v. Mares, No. 2-12-0493 (July 12, 2013)
(minute order). Six days later we vacated that order and increased the refund to $200. Mares, No.
2-12-0493 (July 18, 2013) (minute order). The order stated, “THIS ORDER IS FINAL AND
SHALL STAND AS THE MANDATE OF THIS COURT.” On January 15, 2014, defendant
filed a pro se petition under the Act. The trial court appointed counsel to represent defendant,
and counsel amended the petition. The State successfully moved to dismiss the amended petition,
and this appeal followed.
¶3 Defendant now argues that, by doing nothing more than moving for a summary
disposition of his direct appeal, appellate counsel failed to act as an advocate for him. According
to defendant, if there were no meritorious issues that could be raised on appeal, counsel should
have moved to withdraw in accordance with the dictates of Anders and Jones. Otherwise,
defendant argues, counsel was obligated to submit an appellate brief (as opposed to a motion for
summary disposition). Defendant also argues that proper advocacy in a criminal appeal entails
raising some error pertaining to either the adjudication of the defendant’s guilt or the sentence
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imposed. According to defendant, an error in the computation of costs pertains to neither of those
subjects. Defendant contends, in essence, that we should reopen the judgment on direct appeal so
that he may raise a new, supposedly meritorious issue: whether a box cutter is a dangerous
weapon within the meaning of the armed-violence statute. Defendant also argues that, in the
interest of judicial economy, we should decide that issue now, rather than granting defendant
another appeal.
¶4 We preface our analysis of these arguments with a brief review of the legal principles
governing proceedings under the Act:
“The Act provides a three-stage process for adjudicating postconviction petitions.
At the first stage, the circuit court determines whether the petition is ‘frivolous or is
patently without merit.’ [Citation.] The court makes an independent assessment as to
whether the allegations in the petition, liberally construed and taken as true, set forth a
constitutional claim for relief. [Citation.] The court considers the petition’s ‘substantive
virtue’ rather than its procedural compliance. [Citation.] If the court determines the
petition is frivolous or patently without merit, the court dismisses the petition. [Citation.]
If the petition is not dismissed, it will proceed to the second stage.
At the second stage, the court may appoint counsel to represent an indigent
defendant, and counsel may amend the petition if necessary. [Citation.] The State may
then file a motion to dismiss the petition. [Citation.] If the State does not file a motion to
dismiss or if the court denies the State’s motion, the petition will proceed to the third
stage and the court will conduct an evidentiary hearing on the merits of the petition.
[Citation.]” People v. Hommerson, 2014 IL 115638, ¶¶ 7-8.
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To survive a second-stage motion to dismiss, the petition must make a substantial showing of a
constitutional violation. People v. Domagala, 2013 IL 113688, ¶ 35.
¶5 To determine whether defendant’s petition should have survived the State’s motion to
dismiss—i.e., whether the petition should have proceeded to the third stage—we first examine
the salient principles governing an indigent defendant’s right to counsel in a criminal appeal. In
Douglas v. California, 372 U.S. 353 (1963), the United States Supreme Court reiterated an
earlier holding that “a State may not grant appellate review in such a way as to discriminate
against some convicted defendants on account of their poverty.” Id. at 355 (citing Griffin v.
Illinois, 351 U.S. 12 (1956)). Applying this principle, the Court invalidated a California rule of
criminal procedure that made the appointment of counsel on appeal contingent upon a
determination by the appellate court whether, upon a preliminary review of the record, the
appointment of counsel would be helpful to the defendant or to the court. Id. The Court reasoned:
“[U]nder [California’s] present practice the type of an appeal a person is afforded in the
District Court of Appeal hinges upon whether or not he can pay for the assistance of
counsel. If he can the appellate court passes on the merits of his case only after having the
full benefit of written briefs and oral argument by counsel. If he cannot the appellate
court is forced to prejudge the merits before it can even determine whether counsel
should be provided. At this stage in the proceedings only the barren record speaks for the
indigent, and, unless the printed pages show that an injustice has been committed, he is
forced to go without a champion on appeal. Any real chance he may have had of showing
that his appeal has hidden merit is deprived him when the court decides on an ex parte
examination of the record that the assistance of counsel is not required.” Id. at 355-56.
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The Douglas Court explained that “[t]here is lacking that equality demanded by the Fourteenth
Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s
examination into the record, research of the law, and marshalling of arguments on his behalf,
while the indigent, already burdened by a preliminary determination that his case is without
merit, is forced to shift for himself.” Id. at 357-58.
¶6 In Anders the Court relied, in part, on this principle as a basis for defining appointed
counsel’s role on appeal. The question arose where appointed counsel advised the appellate
court, by letter, that he had concluded that there was no merit to the appeal and that he would not
file a brief on the defendant’s behalf. The appellate court refused the defendant’s request for new
counsel, leaving him to file a pro se brief. The Anders Court held that “[t]he constitutional
requirement of substantial equality and fair process can only be attained where counsel acts in
the role of an active advocate in behalf of his client, as opposed to that of amicus curiae.”
Anders, 386 U.S. at 744. The Court concluded that counsel was not acting as an active advocate
when he submitted a “no-merit letter” to the appellate court. According to the Court:
“[Appointed counsel’s] role as advocate requires that he support his client’s appeal to the
best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request permission to
withdraw. That request must, however, be accompanied by a brief referring to anything in
the record that might arguably support the appeal. A copy of counsel’s brief should be
furnished the indigent and time allowed him to raise any points that he chooses; the
court—not counsel—then proceeds, after a full examination of all the proceedings, to
decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to
withdraw and dismiss the appeal insofar as federal requirements are concerned, or
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proceed to a decision on the merits, if state law so requires. On the other hand, if it finds
any of the legal points arguable on their merits (and therefore not frivolous) it must, prior
to decision, afford the indigent the assistance of counsel to argue the appeal.
This requirement would not force appointed counsel to brief his case against his
client but would merely afford the latter that advocacy which a nonindigent defendant is
able to obtain. It would also induce the court to pursue all the more vigorously its own
review because of the ready references not only to the record, but also to the legal
authorities as furnished it by counsel. The no-merit letter, on the other hand, affords
neither the client nor the court any aid. The former must shift entirely for himself while
the court has only the cold record which it must review without the help of an advocate.
Moreover, such handling would tend to protect counsel from the constantly increasing
charge that he was ineffective and had not handled the case with that diligence to which
an indigent defendant is entitled. This procedure will assure penniless defendants the
same rights and opportunities on appeal—as nearly as is practicable—as are enjoyed by
those persons who are in a similar situation but who are able to afford the retention of
private counsel.” Id. at 744-45.
See also Jones, 38 Ill. 2d at 385 (restating Anders’s requirements). When counsel is permitted to
withdraw from an appeal without complying with Anders, reversal is automatic. Penson v. Ohio,
488 U.S. 75, 85-86 (1988). In this regard, an Anders-based claim of error differs from a claim of
ineffective assistance of counsel based on the failure to raise a particular issue on appeal; the
latter requires a showing that “ ‘the failure to raise that issue was objectively unreasonable, as
well as a reasonable probability that, but for this failure, [the defendant’s] sentence or conviction
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would have been reversed.’ ” People v. Mack, 167 Ill. 2d 525, 532 (1995) (quoting People v.
Caballero, 126 Ill. 2d 248, 270 (1989)).
¶7 Mindful of these principles, we consider defendant’s argument that, in order to function
as an advocate, appellate counsel must either submit an appellate brief or file a motion
complying with Anders and Jones. Defendant contends that, because counsel here did neither,
counsel did not function as an advocate. We disagree with the implied premise of defendant’s
argument: that a motion for summary disposition is a categorically unacceptable substitute for an
appellate brief. Illinois Supreme Court Rule 23(c) (eff. July 1, 2011) authorizes the summary
disposition of appeals without full briefing. That rule provides, in pertinent part, as follows:
“The court may dispose of a case by summary order at any time after the case is
docketed in the Appellate Court. The disposition may provide for dismissal, affirmance,
remand, reversal or any combination thereof as appropriate to the case. A summary order
may be entered after a dispositive issue has been fully briefed, or if the issue has been
raised by motion of a party or by the court, sua sponte, after expiration of the time for
filing a response to the motion or rule to show cause issued by the court.” (Emphasis
added.) Id.
Thus, in an appropriate case, counsel may use such a motion to achieve the full measure of relief
that would be available in a fully briefed appeal. Would counsel in such a case be less of an
advocate simply because he or she pursued summary relief via a motion under Rule 23(c) as
opposed to filing a brief? Clearly, the answer is no.
¶8 We next consider defendant’s argument that, unless counsel complies with Anders and
Jones, he or she must raise some issue bearing on either the adjudication of guilt or the sentence
imposed. Costs are considered a “ ‘collateral consequence’ ” of a conviction and are not punitive.
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People v. Jones, 223 Ill. 2d 569, 581-82 (2006). Thus, in defendant’s view, because the only
error counsel raised on direct appeal related to costs, counsel did not act as an advocate.
Certainly it seems fair to say that counsel does not act as an advocate if he or she raises an issue
pertaining to costs (or some similar “collateral consequence” of a conviction) but neglects to
raise a meritorious issue bearing on the adjudication of guilt or the sentence. But what is counsel
to do if there is no such meritorious issue? Defendant would apparently have counsel withdraw
pursuant to Anders and Jones. That would imply two things: (1) that, despite the existence of a
meritorious issue pertaining to costs, such an appeal is “wholly frivolous” (Anders, 386 U.S. at
744) and (2) that the failure to challenge the adjudication of guilt or the sentence is tantamount to
withdrawing from the appeal and thus requires compliance with Anders and Jones.
¶9 As we understand defendant’s argument, both these propositions seem to flow from the
definition of “judgment” set forth in section 102-14 of the Code of Criminal Procedure of 1963
(the Code) (725 ILCS 5/102-14 (West 2014)). According to section 102-14, “ ‘[j]udgment’
means an adjudication by the court that the defendant is guilty or not guilty and if the
adjudication is that the defendant is guilty it includes the sentence pronounced by the court.” Id.
Defendant’s argument, as we understand it, is that appellate advocacy entails challenging the
“judgment” as defined in this provision and that costs are outside the ambit of the judgment. We
disagree. Section 102-14 makes clear that when there is an adjudication of guilt the judgment
includes the defendant’s sentence. It does not follow, however, that only the sentence is included.
But even if it did, the Code’s definition of “judgment” is applicable “except when a particular
context clearly requires a different meaning.” 725 ILCS 5/102-1 (West 2014). In the relevant
context here, defendant’s interpretation of “judgment” is untenable. Section 124A-5 of the Code
expressly provides that “[w]hen a person is convicted of an offense *** the court shall enter
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judgment that the offender pay the costs of the prosecution.” (Emphasis added.) 725 ILCS
5/124A-5 (West 2014). In this context, “judgment” clearly includes not only the adjudication of
guilt and the sentence pronounced by the court, but the costs of the prosecution as well.
Inasmuch as defendant’s argument rests on the proposition that appellate counsel did not
challenge the judgment—and thus did not act as an advocate—the argument fails.
¶ 10 We thus decline to hold that appellate counsel does not act as an advocate unless he or
she either (1) files a brief challenging the adjudication of guilt or the sentence imposed or
(2) withdraws in accordance with Anders and Jones. In so holding, we reject the idea that raising
only issues unrelated to the adjudication of guilt or the sentence is tantamount to withdrawing
from the appeal. In cases where appellate counsel’s advocacy is nonetheless wanting—i.e.,
where the defendant does not receive the effective assistance of appellate counsel—the defendant
may obtain relief under the Act by filing a postconviction petition (1) identifying a particular
issue that could have been raised on direct appeal, (2) showing that the failure to raise that issue
was objectively unreasonable, and (3) further showing a reasonable probability that, had the
issue been raised, the defendant’s conviction or sentence would have been reversed. See Mack,
167 Ill. 2d at 532; Caballero, 126 Ill. 2d at 270.
¶ 11 Because we reject defendant’s Anders-based claim, we need not consider whether a box
cutter is a “Category II weapon” for purposes of the armed-violence statute (720 ILCS 5/33A­
1(c)(2) (West 2010)). We note that, even if the issue were directly before us, we would likely not
resolve it in defendant’s favor. The statute in question explains that a “Category II weapon”
includes sundry firearms and spring guns, as well as any “knife with a blade of at least 3 inches
in length, dagger, dirk, switchblade knife, stiletto, axe, hatchet, or other deadly or dangerous
weapon or instrument of like character.” (Emphasis added.) Id. As the statute’s residual clause
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indicates, a knife with a blade that is not at least three inches long can still be a deadly weapon.
See People v. Samier, 129 Ill. App. 3d 966, 968-69 (1985). So, too, can a one-inch utility blade.
See People v. Westefer, 169 Ill. App. 3d 59, 62 (1988). The box cutter defendant used was never
recovered, but the statutory definition allows that an ordinary box cutter is just as deadly as any
other knife or switchblade and therefore qualifies as a “Category II weapon.” But more to the
point, defendant’s request that we consider the issue assumes that the asserted Anders violation
(1) occurred and (2) requires that we reopen the judgment on direct appeal to consider new
arguments. Because we conclude that there was no Anders violation, we reject defendant’s
request.
¶ 12 We acknowledge the concerns raised by our dissenting colleague; however, we disagree
with the dissent’s two core premises. First, an attorney cannot be expected to file both a motion
to withdraw and a motion for summary disposition in the same case, as the two are mutually
exclusive. Per Anders and Jones, a motion to withdraw invites the court to discharge appointed
counsel from the burdens of advocacy on counsel’s suggestion that there is no sound legal basis
on which the defendant may seek any relief. A motion for summary disposition, however, is an
attempt by counsel to secure at least some relief on defendant’s behalf, which necessarily is
advocacy.
¶ 13 We also disagree with the dissent’s distinction between “primary” and “collateral”
judgments, or rather the primary and collateral aspects of judgments. The distinction certainly
advances the dissent’s argument, but its overall utility is uncertain, perhaps even problematic.
For example, if we summarily grant cost-only relief at the defendant’s request and do not address
the underlying conviction or sentence, have we failed to dispose of the appeal? Of course not.
We trust that parties, especially represented parties, know what is best for them and how to ask
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for it—and, as we have been repeatedly admonished, it is not our place to interfere with the
attorney-client relationship or to say otherwise. See, e.g., People v. Givens, 237 Ill. 2d 311, 323­
24 (2010) (citing Greenlaw v. United States, 554 U.S. 237, 244 (2008)). Instead, we adhere to
the traditional approach that a judgment is a singular and largely indivisible judicial order. That
is, in our view, just as a “[r]ose is a rose is a rose is a rose” (Gertrude Stein, Sacred Emily, in
Geography and Plays 178, 187 (1922)), a judgment is a judgment is a judgment.
¶ 14 For the foregoing reasons, the judgment of the circuit court of Boone County is affirmed.
As part of our judgment, we grant the State’s request that defendant be assessed $50 as costs for
this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178
(1978).
¶ 15 Affirmed.
¶ 16 JUSTICE McLAREN, specially concurring:
¶ 17 I specially concur because I wish to comment on the dissent.
¶ 18 In paragraph 31, the dissent posits:
“Under the guidance of Evitts, I submit that it is appropriate to review whether an appeal
is wholly frivolous based on whether counsel can raise any nonfrivolous challenge as to
the defendant’s liberty interests; if he cannot, the appeal is wholly frivolous and counsel
must abide the requirements of Anders.” Infra ¶ 31.
The dissent has raised a counterfactual conditional as the foundation for its assertion that a
motion for summary disposition is improper in this case, where a liberty interest in not involved.
The dissent’s assertion that the appeal is wholly frivolous is based upon a distinction regarding
primary and collateral judgments on appeal. See infra ¶ 32. The dissent must acknowledge that
the collateral claim raised in defendant’s motion for summary disposition was not frivolous,
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because, if it was, defendant would not have been given relief on the claim. This disregard of
reality is evident in the dissent’s equating of a no-merit letter with a motion for summary
disposition. A no-merit letter, in the context of Anders, meant no merit in any aspect of a
potential appeal. However, the dissent determines that Anders applies only to the “primary
judgment” that deals in liberty interests. There is nothing in Anders that enunciates or implies
such a distinction. Furthermore, by attempting to make the distinction, the dissent is severing the
collateral issues from the need to be considered in the context of Anders. Following the dissent’s
logic to its rational conclusion, if counsel determines that the “primary judgment” is wholly
frivolous, there is no need to review the collateral issues, as Anders applies only to the primary
judgment and “its liberty interests.”
¶ 19 The dissent concludes in the same paragraph, “Whether the appeal is ‘wholly frivolous’ is
a determination to be made by the court upon counsel’s motion to withdraw.” Infra ¶ 31.
Historically, the motion to withdraw was to be reviewed in the context of the entire record
(“anything in the record that might arguably support the appeal” (emphasis added) (Anders, 386
U.S. at 744)). The dissent would limit review to the record concerning “liberty interests.”
¶ 20 The dissent differentiates between the “primary” and “collateral” components of the
appeal based upon statutes. See infra ¶¶ 32-33. I find it intriguing that those statutes have never
been considered for purposes of an Anders review. Apparently, all these years appellate counsel
have been ineffective for failing to differentiate between primary and collateral aspects of the
judgment. Likewise, apparently this court has been remiss because, in denying prior Anders
motions, we have required counsel to brief the collateral aspects of an appeal.
¶ 21 This differentiation is arbitrary and incomplete and implies that collateral issues are
inconsequential. The dissent never explains why the “collateral judgment” is limited to “only the
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costs and fees assessed after and as a consequence of the judgment of conviction and sentence.”
Infra ¶ 32. There is no statutory definition of “collateral judgment”; the dissent distorts
“Judgment for costs of prosecution” (725 ILCS 5/124A-5 (West 2014)) into “collateral
judgment” and precludes any other collateral issue from its purview, as if no other collateral
issues can arise from a trial court’s judgment. This is not the case. For but one example,
immigration consequences are not direct consequences of a criminal conviction. See People v.
Guzman, 2015 IL 118749 ¶ 25. They are, rather, collateral to the trial court’s judgment.
However, this “collateral” issue is of such importance that “to be constitutionally effective
criminal defense counsel must ‘advise a noncitizen client that pending criminal charges may
carry a risk of adverse immigration consequences’ ” and “noncitizen defendants who do not
receive that advice from criminal defense counsel may be entitled to relief based on counsel’s
ineffective assistance if they can make the requisite showing of prejudice.” Id. ¶ 33. Is this
collateral issue not truly part of the “collateral judgment”? Further, is a challenge to “only” a
collateral issue such as this a denial of a defendant’s constitutional right to a direct appeal if no
Anders brief is filed regarding the “primary appeal”? The dissent (see infra ¶¶ 29, 31) apparently
would say yes.
¶ 22 I submit that this novel approach creates appeals within appeals. According to the dissent,
there is an appeal from the primary judgment and an appeal from the collateral judgment, both
contained in an overarching appeal. This supernumerary appeal, until now, was simply called
“the appeal.” In order to ensure that the supernumerary appeal is resolved, future dispositions
would have to set forth that both primary and collateral issues have been disposed of.
¶ 23 The dissent claims that addressing only collateral issues precludes the court from
considering any challenge to the curtailment of a defendant’s liberty. See infra ¶ 39. I am not
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aware of anything that precludes a defendant from seeking to appear pro se and attempting to
raise any such challenge. The dissent applies Anders in such a manner that collateral issues are
not covered, essentially removing the protection of Anders from portions of a defendant’s right
to a direct appeal.
¶ 24 The dissent submits its ideal resolution to the factual situation here:
“As a final point, I submit that the debate between the majority and the dissent
might have been avoided if appellate counsel, in the unopposed motion for summary
disposition, had averred that defendant agreed to resolve his appeal by a motion for
summary disposition raising only costs and without raising any challenge to his
conviction or sentence—the primary judgment. *** Any defendant may file a motion to
voluntarily dismiss his appeal. And, in the context of a motion for relief only as to a
collateral issue, the defendant’s consent to dispose of the remainder of the appeal without
raising any challenge to the primary judgment is, effectively, a motion to voluntarily
dismiss his appeal of the primary judgment. Alternatively, where the defendant does not
consent to the voluntary dismissal of the appeal as to the primary judgment, counsel is
left to file a motion to withdraw with the accompanying safeguards in Anders and, as an
advocate for his client, the obligation to raise the error in costs through some means.
Based on the record before us, it cannot be determined whether defendant consented to
dispose of the appeal without raising a challenge to the primary judgment.” (Emphasis
omitted.) Infra ¶ 51.
I submit that this suggestion is fraught with problems. First, the statement is an enthymeme: it
assumes that counsel has fully informed the client and that the client has made a fully informed
consent. Second, it assumes that the consent given is given only as to what the dissent has
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characterized as the “primary judgment” rather than the entire appeal. Third, it is an oxymoron:
the defendant is essentially dismissing his appeal while receiving relief from the court. It would
be more accurate to say that the defendant is waiving his right to a direct appeal of all other
possible issues and seeking only the relief requested, regardless of any characterization. And
here is the rub: if the defendant has the authority to do as the dissent proposes, and Anders does
not apply to collateral issues (as the dissent must be read to hold), then counsel could relate what
the dissent has proposed in a motion to withdraw, and there would be no Anders requirement at
all. Counsel could file a motion to dismiss the appeal because counsel has conferred with the
defendant and the defendant has consented to dismissing the appeal. And with that, there is no
appellate review of the advocacy by counsel. With the defendant “effectively dismissing his
appeal,” the Anders requirement may be subverted without any appellate review. According to
the dissent, even a no-merit letter is unnecessary, because the defendant has been informed that
the case regarding the primary judgment lacks merit and the defendant does not object.
¶ 25 Additionally, the dissent leaves unsaid what counsel must disclose to a defendant in such
a situation. If consent is to be meaningful, it must be an informed consent. The dissent would
assist the bar if it would define what information must be conveyed to the defendant in order for
the defendant to make an informed consent to dismiss the remainder of the supernumerary
appeal. The dissent’s proposal is an enthymeme where the premise that is not related, but
presumed, is that the advice of counsel has satisfactorily informed the client. As with Anders
motions, the benefit derived from informing the client is apprising the client of the status of his
case. If the client decides that he wants to represent himself in his “primary” appeal, he may do
so.
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¶ 26 In conclusion, I believe that the dissent’s ratio decidendi is based upon a counterfactual
conditional. Anders was a decision wherein no matters were raised on appeal. The document
filed in Anders was a no-merit letter that stated that there was no issue of merit to raise on
appeal. The document filed in this case was an unopposed motion for summary disposition. The
former sought no relief and asserted that there was no merit to the appeal. The latter sought and
obtained relief on a ground contained in the appeal. The collateral issue, regardless of its nature
and extent, was not “wholly frivolous” and, thus, the supernumerary appeal was not wholly
frivolous. To decide, as the dissent would, that Anders applied here is to redefine the holding in
Anders to say “otherwise wholly frivolous” or “wholly frivolous as to non-collateral matters.”
The dissent would literally bifurcate an appeal and all the underlying orders in support of the
judgment into two classes. It would also relegate collateral issues to some unknown status
beyond the purview of Anders. If that were done, the dissent would effectively change the
definition of an appeal to “review of the primary judgment.” In defining the appeal as relating
only to the “primary judgment,” the dissent would sever advocacy of collateral issues from
appellate review. If a defendant consents to the “dismissal” of an appeal, it would be interesting
to see how collateral issues are ever resolved if there is error or plain error.
¶ 27 JUSTICE JORGENSEN, dissenting:
¶ 28 I agree with the majority that an agreed motion for summary disposition pursuant to Rule
23(c) can be an acceptable, even a preferred, substitute for appellate briefing. Supra ¶ 7. When
proper procedures are followed and safeguards in place, a summary disposition without formal
briefing conserves resources and leads to a prompt resolution of the appeal. In fact, it has been a
customary practice in this district for some time and such use is not what this case is about.
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¶ 29 Rather, the heart of this case is whether counsel fulfills his obligation as effective
appellate counsel where he challenges only a collateral issue. In other words, has a defendant
been denied his constitutional right to a direct appeal where counsel challenges only the
collateral judgment, avers that there are no other issues, thus implying that the appeal is
otherwise wholly frivolous, and does not file an Anders motion? I believe that he has.
¶ 30 In order to satisfy the constitutional right to a direct appeal with effective assistance of
counsel set forth in Evitts v. Lucey, 469 U.S. 387, 403-04 (1985), and in order to satisfy the
advocacy requirements set forth in Anders, counsel must champion at least one nonfrivolous
issue pertaining to the primary judgment, whether by brief or by (agreed) motion, or move to
withdraw pursuant to Anders, thereby securing for his client all of the procedural safeguards that
are inherent in a direct appeal of the primary judgment or that accompany an Anders motion.
¶ 31 There is no dispute that the application of Anders is triggered when counsel believes that
the appeal is “wholly frivolous.” The issue is, “When is an appeal ‘wholly frivolous?’ ” Under
the guidance of Evitts, I submit that it is appropriate to review whether an appeal is wholly
frivolous based on whether counsel can raise any nonfrivolous challenge as to the defendant’s
liberty interests; if he cannot, the appeal is wholly frivolous and counsel must abide the
requirements of Anders. In other words, an appeal is “wholly frivolous” when counsel is unable
to articulate any nonfrivolous issue challenging the defendant’s conviction or sentence. A viable
challenge to erroneously assessed costs does not render an otherwise “wholly frivolous” appeal
meritorious. Challenging only the collateral judgment, whether by brief or by (agreed) motion,
simply does not satisfy the defendant’s right to a direct appeal or counsel’s duties as an advocate.
Whether the appeal is “wholly frivolous” is a determination to be made by the court upon
counsel’s motion to withdraw.
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¶ 32 I agree with the majority that the primary judgment (conviction and sentence (725 ILCS
5/102-14 (West 2014))) and collateral judgment (costs (725 ILCS 5/124A-5 (West 2014))) are
components of the same appealed-from case. I disagree, however, that the appealed-from
judgment cannot or should not be separated into its primary and collateral components in the
context of considering whether the defendant’s rights to a direct appeal and appellate advocacy
have been satisfied. In my view, a direct appeal is a determination of whether the judgment of
conviction and subsequent sentence was entered properly. As described below, the primary
judgment is the judgment of conviction and sentence, as a result of which the defendant’s liberty
has been curtailed. The collateral judgment includes only the costs and fees assessed after and as
a consequence of the judgment of conviction and sentence.
¶ 33 Primary and collateral judgments have been identified and labeled separately by the
legislature and viewed discretely by the courts. These judgments have been given separate
designations: “ ‘Judgment’ ” (725 ILCS 5/102-14 (West 2014)) lies under the heading for article
102, “General Definitions,” and includes the “adjudication by the court that the defendant is
guilty *** [and] the sentence pronounced by the court.” “Judgment for costs of prosecution”
(725 ILCS 5/124A-5 (West 2014)) lies under the heading for article 124A, “Liens and Costs,”
and discusses the costs of prosecution: “[w]hen a person is convicted *** the court shall enter
judgment that the offender pay the costs of the prosecution.” This separation by title and
substance is an indication of the legislature’s intent that the two components of a judgment on
appeal are different types of judgments, entered for different purposes. 725 ILCS 5/102-14,
124A-5 (West 2014).
¶ 34 Primary and collateral judgments have been given different terminology and
characterization by the supreme court, specifically, that a judgment for costs is collateral to, or a
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consequence of, the judgment. Jones, 223 Ill. 2d at 581. Calling a judgment collateral, or
consequential, indicates that the supreme court appreciates the difference between a primary
judgment and its collateral components and has created a practical break between the primary
judgment (conviction and sentence) and the remaining components of the judgment (fees and
costs).
¶ 35 There is also a rudimentary difference here that cannot be overemphasized. Conceptually,
the primary judgment is of a markedly different character than the collateral judgment, both at
trial and on review. At trial, the primary judgment is reached following deliberation of facts and
application of law by judge or jury, followed by further deliberation and the imposition of
sentence. The collateral judgment is entered automatically, imposed by rote checking of
prescribed boxes on a form, and in this context is limited to court costs and fees. Costs and fees
represent the State’s attempt to recoup the expenses of the prosecution as opposed to the penal
nature of a fine. Id. at 582. On review, counsel’s assessment of the former requires reading the
entire record and analyzing complex legal considerations; counsel’s assessment of the latter
requires little more than reading a few pages of the record and engaging in a basic accounting
exercise.
¶ 36 The primary and collateral judgments not only can, but should, be considered separately
when examining whether a defendant’s rights to a direct appeal and appellate advocacy have
been satisfied. The primary judgment implicates a defendant’s liberty interests, and the collateral
judgment does not. There is a conscience-shocking disparity between the liberty interests
implicated by a judgment of conviction and sentence of years in the Illinois Department of
Corrections versus a judgment for costs (again, if a judgment for costs can be said to implicate
liberty interests at all). At issue here, for example, is a Class X conviction of armed violence and
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a 10-year sentence to the Department of Corrections versus less than a $200 overpayment in
costs. A meritorious issue challenging the conviction or sentence addresses defendant’s liberty
interests and is of far more import than reckoning the ledger of costs.
¶ 37 Defendant is entitled to a review of the propriety of his conviction and sentence. In other
words, defendant is entitled to a review of the deprivation of his liberty interests, not merely his
debt for costs. “In establishing a system of appeal as of right [with effective assistance of
counsel], the State had implicitly determined that it was unwilling to curtail drastically a
defendant’s liberty unless a second judicial decision maker, the appellate court, was convinced
that the conviction was in accord with law.” (Emphases added.) Evitts, 469 U.S. at 403-04. This
sentence contains two important points: (1) a defendant’s right to a direct appeal with effective
assistance of counsel derives from the curtailment of his liberty and (2) the court, not counsel,
must decide on direct appeal whether the defendant’s liberty was rightfully curtailed. Indeed,
process requirements generally develop to guard against the wrongful deprivation of a right.
¶ 38 The procedure sanctioned by the majority subverts the Evitts policy underlying the right
to a direct appeal, specifically, that a second judicial decision-maker review whether the
curtailment of a defendant’s liberty was proper. Where counsel challenges only the collateral
judgment, he precludes the court from considering on direct appeal any challenge to the
curtailment of the defendant’s liberty. Here, for example, counsel challenged only the collateral
judgment, arguing an improper assessment of court costs. Counsel further stated in his
unopposed motion for summary disposition that “[u]ndersigned counsel has read the complete
record and he has found no other issues to raise on appeal.” Properly declining to act as an
advocate, this court reviewed only the collateral judgment to the exclusion of the primary or
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liberty-interest judgment. The flaw, as raised by defendant’s petition, is that under this process
this court has never reviewed any issue regarding defendant’s primary judgment.
¶ 39 Under our current procedure, this court accepted counsel’s conclusory statement that
there were no other issues to raise, which, taken at face value, meant that counsel had identified
no “nonfrivolous” issues regarding the primary judgment. In such a circumstance, the appeal as
to defendant’s liberty interests was, according to counsel, “wholly frivolous.” In a manner
analogous to the patently ineffective no-merit letter, counsel, not the court, determined that
defendant’s liberty was rightfully curtailed and that defendant was entitled to no further review
of his conviction or sentence. Counsel’s summary resolution of the appeal precluded the court
from considering on direct appeal any challenge to the curtailment of defendant’s liberty. In
contrast, requiring counsel to raise at least one challenge against the primary judgment, or move
to withdraw pursuant to Anders, ensures that a second judicial decision-maker, this court, will
review on direct appeal the curtailment of a defendant’s liberty. To hold otherwise is arguably to
follow the letter of the law but stands the spirit of the law on its ear.
¶ 40 The procedure approved by the majority also subverts the policy underlying Anders,
specifically that defendants receive effective appellate advocacy. Anders, 386 U.S. at 744-45.
Submitting an Anders motion is an act of advocacy. Id. Consider the appeals of two defendants
for whom there are no nonfrivolous issues regarding their liberty interests. The only difference
between them is that one was erroneously assessed costs. Under the majority position, the
defendant who has been assessed the correct costs, in other words who has no issues regarding
the collateral judgment, is given the benefit of the Anders procedure before counsel may
withdraw. In that case, the court, not counsel, will ultimately determine whether the appeal is
wholly frivolous and whether the motion to withdraw should be granted. The similarly-situated
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defendant who has been assessed erroneous costs, an easily-correctable overcharge, does not
receive the benefit of the Anders procedure. Rather, counsel may summarily aver that the
defendant is entitled to a correction of costs and that there are no nonfrivolous issues to be raised
challenging the primary judgment. This is no better than the no-merit letter outlawed in Anders.
¶ 41 Counsel secures significant procedural safeguards for his client when he moves to
withdraw pursuant to Anders. I name just a few of those safeguards: (1) the guarantee that a
“court—not counsel” will decide whether there are no nonfrivolous challenges to be made on
direct appeal against the judgment (id. at 744), which, pursuant to Evitts, in this context means
the primary judgment; (2) demonstrative evidence, presented to the court, that an attorney
thoroughly reviewed the record and understood the applicable law before he or she moved to
withdraw (see In re Brazelton, 237 Ill. App. 3d 269, 271 (1992) (the court denied an Anders
motion that demonstrated a superficial review of the record and a misunderstanding of the
applicable law); In re Alexa J., 345 Ill. App. 3d 985, 990 (2003) (where an attorney files an
inadequate Anders brief, the remedy is not to deny the Anders motion, but for the attorney to
rethink his position and either amend the Anders motion or file an appellate brief)); (3) notice of
counsel’s motion to withdraw and the basis thereof, together with the opportunity for the
defendant to object to the attorney’s position or move to proceed pro se; (4) the opportunity for
the defendant and the court to benefit from the attorney’s discussion of the case, which may aid
the defendant and the court in identifying a nonfrivolous issue (see Brazelton, 237 Ill. App. 3d at
272 (the defendant should have the benefit of a detailed memorandum that discusses all aspects
of the case with citation to correct law before objecting to the motion to withdraw or moving to
proceed pro se, and the court should have the benefit of legal argument before determining the
frivolity of potential claims)); and (5) the opportunity for timely access to justice and procedure,
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in other words, a review of the deprivation of the defendant’s liberty interests in the first
instance—on direct appeal.
¶ 42 It is worthy of note that this court does deny Anders motions where we disagree with
counsel’s assessment of “wholly frivolous.” It is troubling here that, where counsel did not place
a single issue regarding conviction and sentence before us, we are left to conclude on faith,
without more, that counsel understood the issues and the law and correctly concluded that the
appeal was wholly frivolous. By accepting counsel’s bald averment that there were no other
issues, we have failed to be the second judicial decision-maker to review the deprivation of
defendant’s liberty interests.
¶ 43 It is my position that, because counsel here violated Anders, there is no room to discuss
alternative procedures that may occur after the court’s disposition of the direct appeal. It is
disingenuous to suggest that, “even if counsel violated Anders, there are sufficient procedural
safeguards against the wrongful deprivation of defendant’s liberty available at later stages.”
Defendant had the right to a review of the deprivation of his liberty in the first instance, on direct
review. No subsequent procedure can ameliorate the denial of that right.
¶ 44 In contrast, the majority posits that counsel did not violate Anders, that defendant, who
was credited for the cost overage, received adequate resolution of his appeal, and that, if an issue
was missed by counsel and thus not reviewed by the court, procedural safeguards available at
later stages suffice.
¶ 45 I disagree and, in response, address the inadequacy of requiring a defendant to rely on
postconviction proceedings for the opportunity to raise his first challenge to the primary
judgment, as proposed by the majority (supra ¶ 10). That a defendant would have to fend entirely
for himself to craft a challenge to the primary judgment and wait years to do so makes a
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postconviction proceeding a poor safeguard against the wrongful deprivation of the defendant’s
liberty. In stark contrast to the benefit of the Anders procedure, no appellate court reviews any
aspect of the primary judgment, leaving the defendant with a broad, and likely overwhelming, set
of issues to consider. The defendant is not assured, in the form of a detailed memo, that an
attorney reviewed his conviction and sentence with an appropriate level of knowledge and
understanding of the law. The defendant must identify potential issues to initiate a postconviction
proceeding without the help of such a memo. Further, in this postappeal posture, he has the
additional obstacle of proving ineffective assistance of appellate counsel, making the avenue to
relief all the more arduous. Finally, and perhaps most compelling, assuming that the defendant
gets to stage two of postconviction proceedings, the defendant is entitled only to reasonable
assistance of counsel, not the higher level of advocacy—effective assistance—which he should
have enjoyed on direct appeal. In short, his access to justice and process is delayed, he is hobbled
by the lack of appellate review, he is at a distinct disadvantage with at most only reasonable
assistance of counsel in bringing for the first time any claim of error in his conviction and
sentence, and, if his argument is winning, he has lost years of his life in prison.
¶ 46 Reliance on a pro se petition for rehearing as an adequate guard against the wrongful
deprivation of a defendant’s liberty interests is equally misguided. This procedure also violates
the Anders dictate that a defendant should not shift for himself against the judgment, which, per
Evitts, in this context means the primary judgment. It is unlikely, if not impossible, that a
defendant, not given an invitation to challenge his attorney as in the Anders procedure, would
have the wherewithal to swiftly take such a creative approach. We cannot expect a defendant to
scour the record and craft, from inception, his own challenge to the primary judgment within 21
days.
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¶ 47 Further support for my position is found in what is required to prove ineffective
assistance of appellate counsel: “[a] defendant who contends that appellate counsel rendered
ineffective assistance, e.g., by failing to argue an issue, must show that the failure to raise that
issue was objectively unreasonable and that, but for this failure, defendant’s conviction or
sentence would have been reversed.” (Emphasis added.) People v. Richardson, 189 Ill. 2d 401,
412 (2000). This standard, turning on counsel’s handling of challenges to the conviction and
sentence, leads to the inescapable conclusion that counsel’s handling of costs cannot
conclusively establish the constitutional sufficiency of his advocacy. Counsel cannot fulfill his
constitutional duty to advocate for his client by challenging only costs; he must challenge the
primary judgment with an appellate brief or a motion for summary disposition or move to
withdraw pursuant to Anders.
¶ 48 I realize that in some cases this position might place an additional obligation on appellate
counsel. Counsel who notices an error as to costs, the collateral judgment, but believes that the
appeal is otherwise wholly frivolous will have to both (1) pursue a remedy as to costs,
presumably by an agreed motion, and (2) move to withdraw pursuant to Anders. I stress that the
extra burden here is the agreed motion concerning costs, not the Anders motion. Again, in my
view, the court, not counsel, must review the curtailment of the defendant’s liberty (Evitts), and
the defendant is not to shift entirely for himself in raising a challenge to the curtailment of his
liberty (Anders). This requires in every case the filing of one of three alternatives that address
the primary judgment—the defendant’s liberty interests: (1) a brief, (2) a motion for summary
disposition, or (3) an Anders motion. The extra burden of raising an easily-correctable collateral
error as to costs is a small one.
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¶ 49 In my view, the majority does not offer a satisfactory explanation as to why the primary
and collateral judgments must be treated as parts of an indivisible whole when considering
whether an appeal is wholly frivolous or whether appellate counsel fulfilled his duties as an
advocate. I infer that the majority’s concern lies in preserving the distinction between
noncompliance with Anders and a Strickland ineffective-assistance claim based on failure to
raise a meritorious issue. Supra ¶ 6. In fact, I agree with this distinction. We require counsel to
raise at least one nonfrivolous issue or file an Anders motion. We do not usurp counsel’s role to
choose which issues to raise. We do not proactively review the issues that counsel could have
raised. The majority creates a firm cutoff: so long as counsel champions at least one nonfrivolous
issue pertaining to either the primary or the collateral judgment, counsel need not file an Anders
motion and the court does not review the case for other issues of potential merit. If counsel
misses an issue of merit, then the defendant has a postconviction ineffective-assistance claim. I,
too, would create a firm cutoff: so long as counsel champions at least one nonfrivolous issue
pertaining to the primary judgment, that is at least one nonfrivolous issue other than costs and
fees, counsel need not file an Anders motion and the court does not review the case for other
issues of potential merit. If counsel misses an issue of merit, then the defendant has a
postconviction ineffective-assistance claim. Both approaches preserve the distinction between
noncompliance with Anders and a standard ineffective-assistance claim. However, only my
approach satisfies the Evitts policy that the court, not counsel, consider on direct appeal a
challenge to the curtailment of the defendant’s liberty.
¶ 50 In sum, I would review whether an appeal is wholly frivolous based on whether counsel
can raise a nonfrivolous challenge as to the defendant’s liberty interests; if he cannot, the appeal
is wholly frivolous and counsel must abide the requirements of Anders. This remains steadfast
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regardless whether there is an error in the judgment for fees and costs. Again, an error in costs
does not transform an otherwise wholly frivolous appeal into one in which a meritorious claim
exists under Evitts.
¶ 51 As a final point, I submit that the debate between the majority and the dissent might have
been avoided if appellate counsel, in the unopposed motion for summary disposition, had averred
that defendant agreed to resolve his appeal by a motion for summary disposition raising only
costs and without raising any challenge to his conviction or sentence—the primary judgment.
The defendant’s agreement is his consent to forgo a challenge to the deprivation of his liberty in
his direct appeal, not to the resolution of the collateral matter set forth in the motion for summary
disposition. Any defendant may file a motion to voluntarily dismiss his appeal. And, in the
context of a motion for relief only as to a collateral issue, the defendant’s consent to dispose of
the remainder of the appeal without raising any challenge to the primary judgment is, effectively,
a motion to voluntarily dismiss his appeal of the primary judgment. Alternatively, where the
defendant does not consent to the voluntary dismissal of the appeal as to the primary judgment,
counsel is left to file a motion to withdraw with the accompanying safeguards in Anders and, as
an advocate for his client, the obligation to raise the error in costs through some means. Based on
the record before us, it cannot be determined whether defendant consented to dispose of the
appeal without raising a challenge to the primary judgment.
¶ 52 I note that such language has recently been included in similar motions for summary
disposition. In People v. Lambert, No. 2-15-0925, counsel filed an unopposed motion for
summary disposition, seeking only the removal of a fee for a second DNA sample and stating
that “[c]ounsel has spoken to the defendant, and he has agreed to dispose of his appeal in this
summary motion without filing a brief [or motion] raising any other issues.” (Emphasis added.)
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This is a proper procedure. The portion of the unopposed motion for summary disposition
addressing the DNA fee, the collateral judgment, is resolved while this court retains jurisdiction.
The balance of the motion is, in effect, a motion to voluntarily dismiss the appeal as to the
primary judgment, which, if granted, ultimately divests this court of jurisdiction.
¶ 53 I briefly address the criticisms against my dissent. The majority states: “First, an attorney
cannot be expected to file both a motion to withdraw [as counsel] and a motion for summary
disposition in the same case, as the two are mutually exclusive.” (Emphasis added.) Supra ¶ 12.
The majority unfairly imposes a premise inconsistent with my position to attack the logic of my
position. Again, I believe that the case can be considered in two parts, primary and collateral, for
the limited purpose of evaluating a defendant’s right to a direct appeal and advocacy. Therefore,
under my view of the case, it is not illogical for an attorney to file a motion for summary
disposition as to the collateral judgment and a motion to withdraw as counsel as to the primary
judgment.
¶ 54 The special concurrence criticizes the practical break between primary and collateral
judgments, i.e., between the aspects of the judgment that implicate a defendant’s liberty interests
and those that reflect rote bookkeeping actions. Supra ¶ 21. It notes that some collateral matters,
such as immigration status, implicate a defendant’s constitutional rights. Supra ¶ 21. This point
is outside the scope of our present debate concerning de minimis costs. Future courts will have to
decide whether an issue, even if referred to as collateral, can satisfy an attorney’s duty to raise at
least one challenge to the deprivation of the defendant’s liberty. (Unlike a judgment for costs, a
defendant’s immigration status does implicate a liberty interest. Also unlike a judgment for costs,
it is not guaranteed to be noted in the trial record. Whether the issue may be challenged on direct
appeal, or in postconviction proceedings, depends on the trial record.)
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¶ 55 The special concurrence also criticizes the alternative solution set forth in paragraph 51.
Supra ¶¶ 24-25. I want to place in context that this is an alternative solution. Again, any
defendant may file a motion to voluntarily dismiss an appeal.
¶ 56 For the reasons stated, I would conclude that defendant has made a substantial showing
of a constitutional deprivation, reverse the second-stage dismissal, and remand for further
proceedings.
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