People v. Brooks

NO. 4-06-0163 Filed 12/26/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
DERRICK M. BROOKS, ) No. 02CF243
Defendant-Appellant. )
) Honorable
) Michael D. Clary,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
This case comes to us on the motion of the office of
the State Appellate Defender (OSAD) to withdraw as counsel on
appeal on the ground no meritorious issues can be raised in this
case. For the reasons following, we disagree and deny the motion
to withdraw, but we also reverse and remand with directions.
I. BACKGROUND
Defendant, Derrick M. Brooks, brings this appeal from
an order dismissing his postconviction petition. On June 6,
2003, defendant was convicted, pursuant to a guilty plea, of one
count of criminal sexual assault (720 ILCS 5/12-13(a)(4) (West
2002)). In exchange for his plea, the State dropped three other
charges. The parties had no agreement as to sentence. On July
30, 2003, after a hearing, the trial court sentenced defendant to
eight years' imprisonment. Thereafter, the court admonished
defendant in accordance with Supreme Court Rules 604(d) and
605(d). 188 Ill. 2d Rs. 604(d), 605(d).
On August 7, 2003, defendant sent a handwritten letter
to the circuit clerk, which stated as follows:
"Ms Miller
I [sic] regards to case # 2002 CF 243, I
would like to know if possible I could get my
transcripts regarding my case, as I've been
convicted. I would gladly appreciate you
sending those A.S.A.P. I'll be shipping out
possibly 8-7-03. over÷
Thank you
Sincerely Derrick M. Brooks"
On the reverse side of the letter, defendant continued
as follows:
"ã Also I want to appeal my sentencing on
case no 02/CF/243.
Furthermore will you send me my mittimus
papers as soon as possible to me in D.O.C."
Without any indication in the record that defendant's
letter was forwarded to a trial judge, the circuit clerk filed
the letter as a notice of appeal and on August 12, 2003, filed a
notice of appeal with this court and notified OSAD. On August
21, 2003, OSAD acknowledged its appointment by letter to the
circuit clerk (filed August 25, 2003) requesting the trial court
record. This appeal followed. On May 16, 2005, this appeal was
dismissed (People v. Brooks, No. 4-03-0691 (May 16, 2005) (unpub-
lished order under Supreme Court Rule 23)) with this court
finding; contrary to defendant's assertions, his letter could not
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be construed as a postjudgment motion, which motion is a condi-
tion precedent to an appeal following a guilty plea (see People
v. Flowers, 208 Ill. 2d 291, 300-01, 802 N.E.2d 1174, 1180
(2003)).
Following the attempted appeal, on December 12, 2005,
defendant filed a pro se petition for postconviction relief,
alleging (1) the trial court violated his constitutional rights
by failing to comply with Supreme Court Rule 604(d) (188 Ill. 2d
R. 604(d)) and appointing counsel for him and (2) he received
ineffective assistance of counsel when counsel failed to comply
with the requirements of Rule 604(d). On February 2, 2006, the
trial court dismissed defendant's petition under section 122-
2.1(a)(2) of the Post-Conviction Hearing Act (Act) (725 ILCS
5/122-2.1(a)(2) (West 2006)), finding the issues raised and
presented frivolous and patently without merit. This appeal
followed.
Appointed counsel, OSAD, has filed a motion to withdraw
as counsel under Pennsylvania v. Finley, 481 U.S. 551, 95 L. Ed.
2d 539, 107 S. Ct. 1990 (1987), asserting no issues of arguable
merit warrant appeal. The record shows service of the motion on
defendant. On our own motion, we granted defendant leave to file
additional points and authorities by November 20, 2006, which he
has done. The State filed an appellee brief and defendant filed
a reply brief, in which he also attempted to raise a new issue--
the constitutionality of section 5-8-1(d) of the Unified Code of
Corrections (Unified Code) (730 ILCS 5/5-8-1(d) (West 2002)), the
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requirement for a term of mandatory supervised release (MSR) in
addition to a term of imprisonment.
After examining the record in accordance with our
duties under Finley, we reverse the trial court's judgment and
deny OSAD's motion to withdraw as counsel on appeal but, in the
interest of judicial economy, we remand to the trial court for
the appointment of counsel and a second-stage proceeding on
defendant's petition for postconviction relief.
II. ANALYSIS
OSAD argues no colorable argument can be made the trial
court erred by summarily dismissing defendant's petition.
Specifically, OSAD contends the court's findings and conclusions
are supported by the law and by the facts of this case.
A. Standard of Review
A dismissal of a postconviction petition without an
evidentiary hearing is reviewed de novo. People v. Coleman, 183
Ill. 2d 366, 388, 701 N.E.2d 1063, 1074-75 (1998).
B. Dismissal Was Not Proper
OSAD argues this case was correctly dismissed under
section 122-2.1(a)(2) of the Act. 725 ILCS 5/122-2.1(a)(2) (West
2006)). Section 122-2.1(a)(2) provides a petition may be dis-
missed as frivolous or patently without merit in a written order
that specifies the findings of fact and conclusions of law relied
upon by the trial court in reaching its decision. 725 ILCS
5/122-2.1(a)(2) (West 2006).
First and foremost, OSAD contends defendant's claims of
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violations of his constitutional rights are barred by the doc-
trine of res judicata. Although he was instructed by the trial
court prior to entry of his guilty plea as to the proper proce-
dures to follow to perfect an appeal after a guilty plea, defen-
dant instead filed with the circuit clerk a letter stating he
wanted to appeal his sentence. The circuit clerk interpreted the
letter as a request to file a notice of appeal and she prepared
that. Counsel was appointed for defendant on appeal and counsel
argued defendant's letter should have been interpreted by the
circuit clerk as a request to file a motion to reduce sentence.
This court held otherwise and dismissed his appeal. OSAD con-
tends this court's decision on direct appeal precludes defendant
from relitigating the issue of whether his letter should have
been treated as a motion to reconsider sentence under Rule 604(d)
under the doctrine of res judicata. People v Scott, 194 Ill. 2d
268, 280, 742 N.E.2d 287, 295 (2000).
At first blush, this issue does seem to be barred by
res judicata, but, as defendant has argued in both his objections
and response to OSAD's motion to withdraw and his reply to the
State's brief, he is not arguing his letter should have been
construed as an actual postplea motion; he was attempting to
exercise his right to appeal and the trial court should have
appointed counsel to help him perfect his appeal. Instead, the
actions taken at the trial-court level deprived him of his
opportunity to perfect his appeal. To provide consistent prece-
dent and a consistent body of law, we will address the issue of
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the trial court's failure to afford defendant every opportunity
to protect his right to due process and the perfection of an
appeal raised by him in his petition for postconviction relief.
Pursuant to Rule 604(d), a defendant may not appeal
from a judgment entered upon a plea of guilty unless (1) he files
a timely motion to reconsider, if challenging only his sentence;
or (2) if challenging his plea, files a timely motion to withdraw
guilty plea and to vacate the judgment. 188 Ill. 2d R. 604(d).
In the case of a negotiated plea, however, a defendant cannot
challenge his sentence without filing a timely motion to withdraw
his guilty plea and vacate the judgment. 188 Ill. 2d R. 604(d).
Rule 604(d) further provides, in relevant part, as follows:
"The motion shall be in writing and shall
state the grounds therefor. *** The motion
shall be presented promptly to the trial
judge by whom the defendant was sentenced[.]
*** The trial court shall then determine
whether the defendant is represented by coun-
sel, and if the defendant is indigent and
desires counsel, the trial court shall ap-
point counsel." 188 Ill. 2d R. 604(d).
Certain fundamental principles govern postplea filings,
and purposes underlie those principles. Although Rule 604(d)
speaks in terms of a right to counsel after the postplea motion
is filed, we recently noted "Rule 604(d) provides a defendant the
right to the aid of an attorney in the preparation and presenta-
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tion of a postplea motion." (Emphasis added.) People v. Lofton,
No. 4-06-0582, slip op. at 7 (October 11, 2007), ___ Ill. App. 3d
___, ___, ___ N.E.2d ___, ___ (2007), citing People v. Barnes,
291 Ill. App. 3d 545, 550, 684 N.E.2d 416, 420 (1997). Fundamen-
tal fairness requires this. People v. Ledbetter, 174 Ill. App.
3d 234, 237-38, 528 N.E.2d 375, 377 (1988).
The strict waiver requirements of Rule 604(d) affect
this equation. The rule provides "[u]pon appeal any issue not
raised by the defendant in the motion to reconsider the sentence
or withdraw the plea of guilty and vacate the judgment shall be
deemed waived." 210 Ill. 2d R. 604(d). In light of these
requirements, "fundamental fairness requires that a defendant be
afforded a full opportunity to explain his allegations and that
he have assistance of counsel in preparing the motion."
Ledbetter, 174 Ill. App. 3d at 237-38, 528 N.E.2d at 377.
Requiring an appeal to be dismissed when the prerequisites of
Rule 604(d) are not met is a further consequence to defendant.
Flowers, 208 Ill. 2d at 301, 802 N.E.2d at 1180.
Given the legal consequences of failing to comply with
Rule 604(d), a defendant's right to appeal, his right to counsel,
and the preservation of any claimed defects in the plea and
sentencing proceedings should not depend, as here, upon a circuit
clerk's evaluation of a pro se filing. As we noted in Lofton, we
recognize the difficulty facing trial courts when a defendant
expresses a desire to appeal. See Lofton, slip op. at 8, ___
Ill. App. 3d at ___, ___ N.E.2d at ___. Often, as here, the
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defendant receives the proper admonitions but then expresses his
desire to appeal in a letter to the circuit clerk. The clerk
should not be placed in the awkward position of trying to deter-
mine whether, despite the admonitions, the defendant actually
wants a notice of appeal filed or is simply expressing a desire
to start the process leading up to an appeal.
Thus, proper procedure should be for the circuit clerk
to present any such letters regarding appeals or motions to a
trial judge. The judge should then, in the interest of justice
and fundamental fairness, interpret any requests to appeal as a
request to begin the process of preserving a defendant's appeal
rights and appoint counsel. This does not require interpreting
letters such as that filed by defendant here as actual postplea
motions, but only as a request to begin the process of preserving
his appeal rights as admonished by the trial court. Counsel is
then required to be appointed because once a defendant demon-
strates his desire to appeal, even if not in compliance with the
Rule 604(d)'s written-motion requirement, the judge is obligated
to inquire whether he seeks counsel. People v. Griffin, 305 Ill.
App. 3d 326, 330, 713 N.E.2d 662, 665 (1999).
The Act establishes a three-stage process for adjudica-
tion of a postconviction petition. People v. Boclair, 202 Ill.
2d 89, 99, 789 N.E.2d 734, 740 (2002). If a defendant's petition
is not dismissed as frivolous or patently without merit, a
defendant's petition proceeds to stage two, where section 122-4
of the Act provides for the appointment of counsel for an indi-
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gent defendant. 725 ILCS 5/122-4 (West 2006). At this stage,
the State may file a motion to dismiss or answer the petition
(725 ILCS 5/122-5 (West 2006)), and the trial court determines
whether the petition makes a substantial showing of a constitu-
tional violation (Coleman, 183 Ill. 2d at 381, 701 N.E.2d at
1072). If the petition is not dismissed at stage two, it pro-
ceeds to stage three, where the trial court conducts an eviden-
tiary hearing. 725 ILCS 5/122-6 (West 2006).
As we have determined defendant's petition for
postconviction relief is not frivolous or patently without merit,
we remand to the trial court for second-stage proceedings under
the Act.
Finally, we address defendant's attempt to raise for
the first time in his reply brief the issue of the constitution-
ality of the MSR statute, section 5-8-1(d) of the Unified Code.
While, as defendant points out, the constitutionality of a
statute may generally be raised at any time (People v. Christy,
139 Ill. 2d 172, 176, 564 N.E.2d 770, 772 (1990)), issues raised
for the first time in a reply brief, even when they deal with the
constitutionality of a statute, may not be considered. Owens v.
Green, 400 Ill. 380, 407-08, 81 N.E.2d 149, 164 (1948); Maun v.
Department of Professional Regulation, 299 Ill. App. 3d 388, 399,
701 N.E.2d 791, 799 (1998); People v. Coleman, 78 Ill. App. 3d
989, 992, 398 N.E.2d 185, 186 (1979). Thus, we will not consider
defendant's argument as to the constitutionality of section 5-8-
1(d) of the Unified Code.
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After carefully reviewing the trial court record and
the trial court's reasoning and conclusions, we find the trial
court improperly dismissed the petition on its merits as frivo-
lous and patently without merit. Defendant's petition requires a
response from the State before the trial court may consider
dismissal. Defendant is entitled representation by counsel and
to his day in court.
III. CONCLUSION
For the foregoing reasons, we deny OSAD's motion for
leave to withdraw. We also reverse the trial court's dismissal
of defendant's petition for postconviction relief and remand the
case to the trial court for further proceedings consistent with
this opinion.
Reversed and remanded with directions.
MYERSCOUGH and COOK, JJ., concur.
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