People v. Edwards

• Citation: 713 N.E.2d 235,238 Ill.Dec. 989,305 Ill. App.3d 853
• Decision Date: 30 June 1999
• Docket Number: No. 4-98-0346.,4-98-0346.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald EDWARDS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

713 N.E.2d 235

305 Ill. App.3d 853

238 Ill.Dec. 989

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald EDWARDS, Defendant-Appellant.

No. 4-98-0346.

Appellate Court of Illinois, Fourth District.

June 30, 1999.

Daniel D. Yuhas, Deputy Defender (Court-appointed), Robert N. Markfield, Asst. Defender, Office of State Appellate Defender, Springfield, for Donald Edwards.

John C. Piland, Champaign County State's Attorney, Urbana, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, James C. Majors, Staff Attorney, State's Attorneys

Appellate Prosecutor, Springfield, for the People

Justice COOK delivered the opinion of the court:

In July 1997, the State charged defendant Donald Edwards with one count of unlawful possession of a controlled substance (720 ILCS 570/402(a)(2)(A) (West 1996)). In October 1997, the State charged defendant with a second count, unlawful possession with intent to deliver a controlled substance (720 ILCS 570/401(c)(2) (West 1996)). While a jury was present and ready to give defendant a jury trial, defendant announced he wanted to plead guilty. In exchange for pleading guilty to count II, the State dropped count I and recommended no more than six years in the Department of Corrections (DOC). Defendant was admonished of all his rights and gave up the right to a presentence report. The following exchange took place:

"THE COURT: Then you understand if you go today you're giving up you[r] right to a presentence report, and the sentence will, if I support the agreement, be six years in the penitentiary and a fine of $500.00 plus court costs. You understand that?

DEFENDANT: [Nods head up and down].

THE COURT: Now is that what you want to do?

DEFENDANT: Yeah.

THE COURT: Are you sure?

DEFENDANT: [Nods head up and down].

THE COURT: All right. And is this consistent with your advice to and your understanding of Mr. Edwards' wishes, Ms. Lenik?

MS. LENIK [(defense counsel)]: It is."

Accordingly, defendant was sentenced to six years' imprisonment.

In February 1998, defendant filed a pro se petition for postconviction relief. Defendant alleged numerous constitutional violations, including that he received ineffective assistance of counsel. Defendant claimed his attorney refused to file a motion to withdraw his guilty plea to perfect defendant's appeal. Defendant's petition stated:

"I requested to [attorney] Lenik to file an appeal, after the Judge [DeLaMar] explained to me that I could do so. [Attorney] Lenik stated in regard to the appeal, quote [sic] On what grounds? unquote [sic] [Attorney] Lenik had taken it or decided for herself not to file an appeal, in spite of my numerous request [sic] to. She ([Attorney] Lenik) also became totally unavailable in regard to the case in spite of the repeated calls by my wife on my behalf."

The petition also claimed his attorney failed to subpoena certain witnesses that he requested and she showed a lack of interest in his case.

The trial court denied defendant's petition as frivolous and patently without merit. The court stated:

"[I]t would appear that the Petitioner cannot just make the bare allegation that he requested counsel to file a motion to withdraw his plea. The Petitioner must show prejudice."

Defendant appeals, arguing the trial court erroneously dismissed his postconviction petition. Defendant argues the mere allegation that his attorney refused to perfect his appeal was sufficient to withstand dismissal and defendant did not have to show prejudice.

The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1996)) provides a remedy to a criminal defendant who claims that a substantial violation of his constitutional rights occurred in the proceedings that resulted in his conviction. People v. Brisbon, 164 Ill.2d 236, 242, 207 Ill.Dec. 442, 647 N.E.2d 935, 937 (1995). In the first stage of postconviction proceedings, the defendant files a petition and the trial court determines whether it is frivolous or patently without merit. To survive dismissal at this stage, the petitioner only needs to assert the gist of a constitutional claim. People v. Gaultney, 174 Ill.2d 410, 418, 221 Ill.Dec. 195, 675 N.E.2d 102, 106 (1996). We use the de novo standard of review for the summary dismissal of a postconviction petition. People v. Coleman, 183 Ill.2d 366, 387-88, 233 Ill. Dec. 789, 701 N.E.2d 1063, 1075 (1998). To sustain a claim of ineffective counsel, defendant must show (1) his attorney's performance fell below an objective standard of reasonableness (Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)), and (2) a reasonable probability exists that defendant was prejudiced by the deficient performance (Strickland, 466 U.S. at 694,104 S.Ct. at 2068,80 L.Ed.2d at 698). In People v. Wilk, 124 Ill.2d 93, 108, 124 Ill.Dec. 398, 529 N.E.2d 218, 223 (1988), our supreme court held that both prongs of the Strickland are applied in a postconviction proceeding where a defendant alleges he has been deprived of his right to appeal by counsel's failure to file a motion to withdraw a guilty plea. Wilk held the defendant still must show how he was prejudiced by his attorney's neglect. Wilk, 124 Ill.2d at 108,124 Ill.Dec. 398,529 N.E.2d at 223-24.

However, in People v. Moore, 133 Ill.2d 331, 339, 140 Ill.Dec. 385, 549 N.E.2d 1257, 1261 (1990), the supreme court seemed to depart from Wilk. In Moore, the defendant was convicted after trial and his appeal was dismissed for want of prosecution due to his counsel's neglect (resulting in the attorney's suspension). The court held that the prejudice prong of the Strickland test is not required where counsel failed to perfect defendant's appeal. "[A] criminal defendant must at some point be afforded the equivalent of direct review and an appellate advocate; a court cannot deny a defendant an attorney-assisted appeal by examining the record and determining that defendant would not have succeeded on appeal in any event." Moore, 133 Ill.2d at 339, 140 Ill.Dec. 385, 549 N.E.2d at 1261. Where a postconviction petition is used as a remedy for a lost right of appeal, prejudice is presumed. Moore, 133 Ill.2d at 339, 140 Ill.Dec. 385, 549 N.E.2d at 1261.

Nevertheless, the State argues we should not presume prejudice in this case because defendant pleaded guilty pursuant to a negotiated plea agreement. The State claims a defendant who pleads guilty does not have an automatic right to appeal like a defendant convicted by a bench or jury. Therefore, the State argues, defendant should have to allege how he was prejudiced and specify in his postconviction petition what issues he would have raised had his attorney filed a motion to withdraw his guilty plea.

The State cites People v. Wendt, 283 Ill. App.3d 947, 219 Ill.Dec. 342, 670 N.E.2d 1230 (1996), a second district case, in support of its argument. In Wendt, the defendant pleaded guilty to second-degree murder and aggravated battery and was sentenced according to the plea agreement. The defendant filed a pro se postconviction petition, alleging his attorney failed to perfect his appeal by not filing a requested motion to reduce sentence. The trial court dismissed the petition as frivolous and patently without merit and the appellate court affirmed the dismissal. The appellate court held the defendant had failed to allege how he had been prejudiced by his counsel's failure to perfect his appeal. The court held Wilk was still good law and distinguishable from Moore:

"The obvious distinction between Wilk and Moore is that the former applies to defendants who seek to appeal following guilty plea proceedings while the latter applies to those convicted following a trial, as was the case in Moore. The reason for such a distinction is also readily apparent: a defendant who pleads guilty simply does not have the same right to an automatic appeal as a defendant convicted after trial [citation]. This distinction is embodied in Rule 604(d), which requires a defendant who seeks to appeal from a conviction following a guilty plea first to file a motion in the trial court that `shall state the grounds therefor.' [Citation.]" Wendt, 283 Ill.App.3d at 956, 219 Ill.Dec. 342, 670 N.E.2d at 1237.

Wendt further held:

"It would be anomalous to hold that a defendant whose counsel fails to comply with the post-plea motion requirement is in a better position than one whose attorney scrupulously follows the rules. A defendant who files a Rule 604(d) motion to withdraw his plea or reconsider his sentence must allege grounds for such a motion. [Citation.] * * * We think that Wilk is still good law and mandates that a defendant who pleads guilty and alleges the loss of his appeal rights because counsel failed to file a motion to reconsider the sentence must specify what issues he would have raised had such a motion been filed." Wendt, 283 Ill.App.3d at 957,219 Ill.Dec. 342,670 N.E.2d at 1237.

Other decisions since Moore have not made the distinction between defendants who have pleaded guilty and those who have been convicted by trial. In People v. Swanson, 276 Ill.App.3d 130, 132-33, 212 Ill.Dec. 824, 657 N.E.2d 1169, 1171 (1995) (second district), People v. Cole, 287 Ill.App.3d 147, 149-50, 222 Ill.Dec. 671, 678 N.E.2d 78, 80 (1997) (first district), and People v. Anderson, 287 Ill.App.3d 1023, 1031-32, 223 Ill.Dec. 666, 680 N.E.2d 399, 405 (1997) (first district), each defendant pled guilty pursuant to a plea agreement, then filed a pro se petition for postconviction relief, alleging he was deprived effective assistance of counsel...