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No. 1-99-1317 FIRST DIVISION

December 29, 2000

The petitioner, London Collins, appeals from an order of the circuit court of Cook Countydismissing his pro se petition for postconviction relief as "patently without merit." We reverse.

On August 20, 1998, as part of a plea agreement negotiated by appointed counsel, thepetitioner pleaded guilty before the trial court to one count of possession of a controlled substance(cocaine) with intent to deliver in violation of Section 401(a)(2)(B) of the Illinois ControlledSubstances Act (720 ILCS 570/401(a)(2)(B) (West 1994)), a Class X felony offense carrying aminimum prison sentence of nine years. Pursuant to the plea agreement, a second count ofpossession of a controlled substance was dismissed. The trial judge entered judgment on the pleaand sentenced the petitioner to the minimum prison term of nine years, with credit for time served. The record reflects that no motion to withdraw the plea or notice of appeal was ever filed on thepetitioner's behalf.

On March 16, 1999, the petitioner filed a pro se petition for postconviction relief pursuantto the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 1994)), alleging thatpetitioner "wanted to appeal the case, which my counsel told me that he will [sic], But [sic] neverdid." Petitioner attached to his petition his own affidavit, attesting that "[a]ll the facts presented aretrue and correct to the best of my recollection." No other supporting affidavits accompanied thepetition. A reviewing judge summarily dismissed the petition, finding that it was "patently withoutmerit." The petitioner appeals from that decision, asserting that the reviewing judge erred insummarily dismissing the postconviction petition where the petitioner had stated the "gist of ameritorious constitutional claim."

On October 10, 2000, we issued an order in this matter pursuant to Supreme Court Rule 23. 166 Ill. 2d R. 23. Both parties filed petitions for rehearing which we denied on November 17, 2000.The order of October 10 was subsequently withdrawn to allow consideration of the State's motionfor leave to cite additional authority, which we hereby grant.

I. Sufficiency of Claim

The standard of review of the summary dismissal of a postconviction petition under the Actis de novo. People v. Johnson, 314 Ill. App. 3d 444, 452 (2000).

The trial court's consideration of a petition under the Act is a three-step process. People v.Anderson, 287 Ill. App. 3d 1023, 1027 (1997). The trial court must first determine whether thepetition is frivolous or patently without merit and thus subject to summary dismissal. 725 ILCS5/122-2.1(a)(2) (West 1994); Anderson, 287 Ill. App. 3d at 1027. Finding the petition now beforeus to be patently without merit, the trial court summarily dismissed it. Therefore, the petition neverprogressed beyond the first stage of consideration under the Act. Anderson, 287 Ill. App. 3d at 1027.

In order to survive summary dismissal, a petitioner under the Act need only assert "the gistof a constitutional claim." People v. Gaultney, 174 Ill. 2d 410, 418 (1996). "This is a low thresholdand a defendant need only present a limited amount of detail in the petition." Gaultney, 174 Ill. 2dat 418. It should be noted that this is a significantly lower evidentiary burden than the "substantialshowing of a violation of constitutional rights" required to merit an evidentiary hearing on thepetition in the third stage of consideration under the Act. People v. Coleman, 183 Ill. 2d 366, 381(1998); 725 ILCS 5/122-6 (West 1994).

Under the rule in Strickland v. Washington, 466 U.S. 668, 688, 692, 80 L. Ed. 2d 674, 693,696, 104 S. Ct 2052, 2064, 2067 (1984), in order to state a claim for ineffective assistance ofcounsel, a defendant must show (1) that counsel's representation "fell below an objective standardof reasonableness" and (2) that counsel's deficient performance prejudiced defendant. In People v.Wilk, the Illinois Supreme Court set forth the requirements for pleading such a claim under the Act:

"[T]he defendant pro se needs only to allege a violation of his sixthamendment right to effective assistance of counsel, due to theattorney's failure to preserve appeal rights, and allege whatevergrounds he or she would have had to withdraw his or her plea ofguilty had a proper motion to withdraw been filed by defendant'scounsel prior to the filing of a notice of appeal. At the hearing on thepost-conviction petition, the two-pronged test laid down in Stricklandv. Washington will apply to determine if in fact the defendant hasbeen deprived of effective assistance of counsel.

The first prong, whether the attorney's performance fell belowan objective standard of reasonableness under prevailing professionalnorms, will require a minimal factual basis. The questions will be:Did the defendant communicate a desire to appeal? Was counselappointed? Did counsel fail to follow Rule 604(d)? The secondprong, whether there is a reasonable probability that, 'but for counsel'sunprofessional errors, the result of the proceeding would have beendifferent,' will need to show the merits of defendant's grounds towithdraw the plea." People v. Wilk, 124 Ill. 2d 93, 107-08 (1988).

In People v. Moore, 133 Ill. 2d 331 (1990), the court narrowed its decision in Wilk by holding that no showing of prejudice under the Strickland test is necessary where a postconviction petition is usedto remedy counsel's failure to perfect defendant's appeal. Prejudice is presumed in suchcircumstances. Moore, 133 Ill. 2d at 339.

In its motion for leave to cite additional authority, the State directs us to the recent decisionof the Illinois Supreme Court in People v. Edwards, No. 87930 (November 16, 2000). In Edwards,the petitioner, who was represented by appointed counsel, entered into a negotiated guilty plea ona charge of possession of a controlled substance with intent to deliver. No motion to withdraw theguilty plea or notice of appeal was ever filed on the petitioner's behalf. Edwards, slip op. at 1. Thepetitioner filed a pro se postconviction petition, alleging:

" 'I requested Atty. Lenik to file an appeal after the judge told me thatI could do so. Atty. Lenik stated, in regard to the appeal, quote [sic]On what grounds? unquote [sic]. Atty. Lenik had taken it or decidedfor herself not to file an appeal in spite of my numerous requests to.'" Edwards, slip op. at 2.

The trial court, apparently construing the language of the petition as an ineffective assistance ofcounsel claim predicated on petitioner's failure to withdraw his guilty plea, ruled that petitioner'sclaim was without merit "because petitioner failed to demonstrate that he had any basis forwithdrawing his guilty plea." Edwards, slip op. at 2. The appellate court affirmed, distinguishingMoore (i.e., requiring a showing of prejudice under Strickland) on the grounds that the defendantin Moore was convicted not after entry of a negotiated plea, but after trial. People v. Edwards, 305Ill. App. 3d 853, 857-58 (1999). The appellate court held that where defendant enters into anegotiated plea, no presumption of prejudice attaches to counsel's failure to perfect an appeal, anddefendant must allege grounds for withdrawal of his guilty plea in order to state a claim forineffective assistance of counsel in a postconviction petition. Edwards, 305 Ill. App. 3d at 858.

On appeal to the Illinois Supreme Court, the State argued that dismissal of the petitioner'spostconviction petition was proper where the petitioner failed to allege any basis for withdrawal ofhis guilty plea. The petitioner responded that in deciding Moore, the court changed the rule in Wilk,and that petitioner was therefore no longer required to allege grounds for the withdrawal of his guiltyplea in order satisfy the second (prejudice) prong of the Strickland test. Edwards, slip op. at 4.

The court recognized the ministerial nature of the filing of a notice of appeal in the criminalcontext, as compared with the nonministerial and mandatory nature of the filing of a motion towithdraw a guilty plea (Edwards, slip op. at 5; 145 Ill. 2d R. 604(d)), and voiced no objection to theapproach of the lower courts in construing the postconviction petition as a claim for ineffectiveassistance arising from counsel's failure to withdraw petitioner's guilty plea. We so construe thepetition before us.

Without further comment on either Wilk or Moore, the Edwards court held that petitioner'sfailure to give grounds for withdrawal of his guilty plea to his trial counsel should be considered notunder the prejudice prong of the Strickland test, but under the performance prong - whether counsel'srepresentation "fell below an objective standard of reasonableness." Edwards, slip op. at 4;Strickland, 466 U.S. at 688, 692, 80 L. Ed. 2d at 693, 696, 104 S. Ct at 2064, 2067. The court thenheld:

"[T]rial counsel's failure to file a motion to withdraw [petitioner's]guilty plea was not unreasonable. We refuse to create a rule whichwould require defense counsel to invent grounds for withdrawal of adefendant's guilty plea when defendant fails to provide counsel withan articulable basis for doing so and he offers none in his [pro se]post-conviction petition." Edwards, slip op. at 5.

The court then affirmed the dismissal of petitioner's postconviction petition as frivolous and patentlywithout merit. Edwards, slip op. at 6.

We find that there is a fundamental difference between the allegations at issue in Edwardsand those in the case before us. As a result, Edwards may be distinguished on its facts. In Edwards,the petitioner alleged that when he requested that his counsel appeal his conviction, his counselresponded, "On what grounds?" Edwards, slip op. at 2. This response may be construed to meaneither that counsel was unaware of any such grounds or that counsel was of the opinion that no suchgrounds existed. The petitioner in the case before us, however, has alleged that upon requesting thatcounsel appeal his conviction, counsel told the petitioner that he would do so. Although thepetitioner does not quote counsel's exact words, we may infer that counsel failed to qualify or limithis agreement to appeal. "In reviewing the dismissal of a [postconviction] petition, the appellatecourt must look to allegations contained in the petition, construed liberally in favor of petitioner, andas set forth in light of the record and transcript. [Citation.] Pro se petitions also require a moreliberal reading than is applied to formal pleadings prepared by counsel. [Citations.]" (Emphasisadded.) People v. Smith, 268 Ill. App. 3d 574, 580 (1994).

Edwards requires us to consider the petitioner's failure to allege grounds for the withdrawalof his guilty plea in his postconviction petition under the performance prong of the Strickland test. Edwards, slip op. at 5. We must therefore decide whether the allegation that counsel failed to perfectthe petitioner's appeal after specifically agreeing to do so, standing alone, is sufficient to state aclaim that counsel's representation "fell below an objective standard of reasonableness" under Strickland. 466 U.S. at 688, 692, 80 L. Ed. 2d at 693, 696, 104 S. Ct at 2064, 2067. We hold thatit is. We believe that no reasonable counsel would agree to a client's request that he appeal theclient's criminal conviction unless counsel had already exercised his sound professional judgmentand determined that meritorious grounds existed to support such an appeal. Because counsel for thepetitioner assured his client that counsel would appeal, we must presume that counsel had alreadyexercised his judgment and determined that such grounds did in fact exist. The concern of theEdwards court, that counsel would be required to "invent" grounds for withdrawal of a defendant'sguilty plea, is unfounded where counsel is already aware of such grounds. Edwards, slip op. at 5. We therefore find that counsel's failure to perfect the petitioner's appeal (i.e., to move to withdrawthe petitioner's plea) after specifically agreeing to do so was objectively unreasonable under theperformance prong of the Strickland test. Under Edwards, the petitioner was therefore not requiredto allege grounds for the withdrawal of his guilty plea in his postconviction petition.

Bearing in mind the low pleading threshold required under the first stage of the Act(Gaultney, 174 Ill. 2d at 418), we believe that on its face, the petition before us sufficiently allegesthe gist of a meritorious constitutional claim - i.e., ineffective assistance of counsel predicated onfailure to perfect an appeal. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I,