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Docket No. 96806-Agenda 7-May 2004.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
JEREMY GREER, Appellant.

Opinion filed September 23, 2004.
 

JUSTICE RARICK delivered the opinion of the court:

In 1993, defendant pled guilty to one count of first degree murderand received a 60-year prison sentence. The appellate court affirmeddefendant's conviction and sentence on direct appeal. People v. Greer,281 Ill. App. 3d 1149 (1996) (unpublished order under SupremeCourt Rule 23). On December 12, 2000, defendant filed a pro sepostconviction petition pursuant to the Post-Conviction Hearing Act(Act) (725 ILCS 5/122-1 through 122-8 (West 2000)); however, thepetition did not come to the attention of the circuit court until July 10,2001, more than 90 days later. Since no action was taken on thepetition within 90 days of filing, the circuit court docketed the petitionfor further consideration and appointed counsel for defendant, as theAct requires. See 725 ILCS 5/122-2.1, 122-4 (West 2000).Appointed counsel subsequently filed a motion to withdraw ascounsel, alleging there was "no basis on which to present anymeritorious issue for review." Counsel supported his motion with abrief purporting to comply with the procedures established in Andersv. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967).In his brief, counsel outlined his investigative efforts on defendant'sbehalf and stated, as to each issue raised in defendant's pro se petition,that counsel could not "properly substantiate" the claim. Counselconcluded that defendant's claims were not meritorious and no issuesof merit could be raised on his behalf. The circuit court grantedcounsel's motion to withdraw and dismissed defendant's pro sepetition sua sponte.

The appellate court affirmed in part, reversed in part, andremanded for further proceedings. 341 Ill. App. 3d 906. The appellatecourt held that "counsel appointed pursuant to the Act may move forleave to withdraw if he or she complies with Supreme Court Rule651(c) and can demonstrate that no meritorious issues can bepresented for review." 341 Ill. App. 3d at 910. However, the appellatecourt determined that the circuit court had erred in dismissingdefendant's petition sua sponte "because its power to do so hadexpired and there was no motion to dismiss on file for the trial courtto grant." 341 Ill. App. 3d at 910.

We granted the defendant's petition for leave to appeal. 177 Ill.2d R. 315(a). On appeal, defendant contends that the circuit court'ssecond-stage order, granting appointed counsel's motion to withdrawbased on lack of merit, was unauthorized by the Act and depriveddefendant of his statutory right to counsel. As defense counselobserved in oral argument before this court, no other aspect of theappellate court's judgment is in issue. In order to provide a propercontext for discussion of defendant's claim, we will provide a moredetailed recitation of facts.

Defendant pled guilty to one count of first degree murder onSeptember 13, 1993. Two other counts, charging first degree murderunder alternative theories, were dismissed at the time of the guiltyplea.

Prior to the plea, the circuit court advised defendant of thepossible penalties he faced given the hypothetical applicability of anarray of "statutory factors" and the possible existence of "certaincircumstances." In the course of the court's explanation of potentialpenalties, which included the death penalty, the prosecutor advised thecourt that the State would not be seeking a sentence of death. Theprosecutor did not explain whether that decision was related todefendant's guilty plea. In any event, the court advised defendant ofhis rights and confirmed that the guilty plea was an "open plea."

A factual basis was presented to support the guilty plea. TheState's evidence indicated that defendant intended to kill LoriCaruthers and he carried out the murder in a premeditated mannerpursuant to a preconceived plan, acting in concert with two othermen, Anthony Walker and Richard Pallente. According to the factualbasis presented by the State, defendant not only continued hisassociation with Anthony Walker after Walker expressed a desire tokill Caruthers and her friend, Mischell Knepler, defendant affirmativelyindicated he was prepared to assist in that endeavor, saying, "Findthem." Walker's sister, Tanya, would have testified that defendantlater instructed her not to let Caruthers use the telephone at theWalker residence and in fact stopped Carruthers when she attemptedto leave the Walker residence through the back door of the house.

Richard Pallante would have testified that defendant obtained apistol at defendant's residence on the day of the murder and statedthat they had to kill Caruthers because she knew too much. Accordingto Pallante, defendant and Walker laughed when Walker said, ineffect, that defendant was cruel. Pallante would have testified thatdefendant and Walker persuaded him to give them a ride, and hearrived at the Walker residence around 7 p.m. on the evening of themurder. Defendant and Walker entered the car with Caruthers.Pallante headed west on Old Jacksonville Road in the direction ofKnepler's house. At some point the three men stopped and exited thecar, at which time Walker told Pallante that defendant was going tokill Caruthers because she knew too much. Defendant got Caruthersout of the car. After a short period of time, defendant returned andWalker asked defendant what was happening. When defendantresponded that they were "just talking," Walker urged him to "hurryup." Thereafter, the same sequence of events transpired a second time.After defendant departed from the car for a third time, and was gonefor a while, Walker instructed Pallante to drive in the directiondefendant and Caruthers had gone. Pallante located defendant andCaruthers and parked on the opposite side of the road from them.Defendant returned to the car and there was a repetition of theprevious exchanges between defendant and Walker, at which timeWalker started to get out of the car, saying, "I'll do it myself."Defendant responded, "No, I'll do it." He then got out of the car andwalked over to where Caruthers was standing. Shortly thereafter,there was a single gunshot and Caruthers fell to the ground. Defendantpulled Caruthers' body further into the ditch, got back into the car,and the three men left the scene, traveling toward Springfield.Defendant said he had told Caruthers that her friend, Mischell, wasdead, and Caruthers begged him not to shoot her before he killed her.

After the factual basis was presented, defendant entered a plea ofguilty. At that time, the court stated:

"This is an open plea. The State has indicated that theywill not be presenting aggravating evidence to seek the deathpenalty. I consider that as a part of a very limited pleaagreement. Other than for that, has any force, threats, or haveany threats or promises been made to you to cause you toenter this plea of guilty this morning?"

Defendant responded, "No." The court thereupon noted for the recordthat defendant had been advised of the "possible penalties that mightbe imposed, including an extended term or natural life imprisonment."The court found the plea to be voluntary, "an open plea with the oneexception *** previously *** stated," and further found a factual basisfor the plea. The court accepted defendant's plea of guilty and enteredjudgment thereon.

A sentencing hearing was conducted on November 30, 1993,during which evidence in aggravation and mitigation was presented.Thereafter, the State argued for a sentence of natural lifeimprisonment or, in the alternative, an extended-term sentence,suggesting that the murder was committed in a cold, calculated andpremeditated manner pursuant to a preconceived plan (see 720 ILCS5/9-1(b)(11) (West 1992)) and that the offense was accompanied byexceptionally brutal and heinous behavior indicative of wanton cruelty.Defense counsel argued that nothing in the defendant's background orthe circumstances of the offense warranted a sentence more than themandatory minimum sentence of 20 years' imprisonment. Defendantmade a statement in allocution.

The circuit court sentenced defendant to the maximum non-extended-term sentence of 60 years' imprisonment. Given the court'sambiguous statements leading up to imposition of sentence, it isimpossible to tell whether the court found no statutory factors tosupport a sentence of natural life imprisonment or an extended term,or the court simply deemed such sentences inappropriate. Inpronouncing sentence, the sentencing judge stated that he hadconsidered all "applicable statutory mitigating and aggravatingfactors."

Defendant subsequently filed a motion for reduction of sentence.Defendant's motion was heard and denied on September 26, 1995. Aspreviously noted, defendant appealed and the appellate court affirmeddefendant's conviction and sentence. Greer, 281 Ill. App. 3d 1149(unpublished order under Supreme Court Rule 23).

On December 12, 2000, the defendant filed a pro sepostconviction petition, alleging that (1) appellate counsel on directappeal had rendered ineffective assistance in that counsel had failed to"argue petitioner's guilty plea was not entered into knowingly andvoluntarily because trial counsel incorrectly advised the petitioner thathe was eligible for the death penalty," and (2) petitioner's guilty plea"was not entered into knowingly and voluntarily because it was basedupon trial counsel's representation of a bogus plea bargain." Withrespect to the first allegation, defendant claimed that his trialattorney's advice regarding the availability of the death penalty waserroneous and, had he known that he was not eligible for the deathpenalty, "he would not have given up all his rights to avoid anextended term or natural life sentence, although he was not legallyeligible for either one of those sentence[s] as well." As for the secondallegation, defendant claimed he pled guilty upon defense counsel'srepresentation that an agreement had been reached for a 45-yearprison sentence, though he admits the record shows "no such deal hadever been agreed upon." Defendant's petition does not address hisown acknowledgment in open court that no promises had been madeto induce him to enter the guilty plea.

Because no one brought the petition to the attention of the circuitcourt within 90 days of filing, the court docketed the petition forsecond-stage consideration and appointed counsel for defendant, asthe Act requires. 725 ILCS 5/122-2.1, 122-4 (West 2000).Obviously, there was never an initial determination as to merits of thepetition.

On October 11, 2001, defendant's appointed attorney filed amotion to withdraw as counsel. Counsel stated that he had reviewedthe record, transcripts of proceedings, the State's Attorney's files, andhad interviewed "all relevant parties," including defendant; however,he could find "no basis on which to present any meritorious issue forreview." Counsel supported his motion with a brief purporting tocomply with Anders procedures. In that brief, counsel meticulouslydetailed his activities after appointment and, with respect to each ofdefendant's contentions, stated that he could not "properlysubstantiate" defendant's claim, concluding that petitioner's claim was"not meritorious." Counsel suggested that he had considered otherpossible issues, but could find no issue of merit.

Counsel's motion to withdraw was heard on December 18, 2001.The judge presiding noted that he had not been the original trial judgein the case and that the clerk had failed to bring defendant's petitionto his attention in a timely manner, necessitating appointment ofcounsel. The court confirmed that defendant had discussed counsel'smotion to withdraw with counsel and advised defendant that he couldappeal if the court allowed counsel's motion, but he would have to doso pro se. The court then granted the motion and dismisseddefendant's pending petition, stating:

"The Court having reviewed the materials submitted by[counsel] finds that there is no constitutional claim of meritand that it is appropriate that the postconviction petitiontherefore be dismissed."

The court thereupon directed the clerk to file notice of appeal onbehalf of defendant.

The appellate court held that defendant had not been denied hisstatutory right to counsel when the trial court granted appointedcounsel's motion for leave to withdraw. In so holding, the appellatecourt noted and followed Fourth District precedent in People v.Norton, 203 Ill. App. 3d 571, 573-74 (1990):

"This court has held that a defendant receives sufficientrepresentation of counsel in a postconviction proceedingunder the Act when counsel complies with Supreme CourtRule 651(c) (134 Ill. 2d R. 651(c)), even if appointed counselmoves to withdraw upon finding no meritorious issues topresent. Norton, 203 Ill. App. 3d at 573, 561 N.E.2d at 350.Defendant does not allege that appointed counsel did notcomply with the requirements of Rule 651(c) or thatappointed counsel was incorrect in his assessment that therewere no meritorious issues to present. Therefore, under thiscourt's precedent, defendant received adequaterepresentation on his postconviction petition." 341 Ill. App.3d at 908-09.

The appellate court concluded that the circuit court, under thecircumstances, had acted properly when it allowed postconvictioncounsel to withdraw. 341 Ill. App. 3d at 909-10. In so holding, theappellate court declined to follow the Third District's decision inPeople v. McKenzie, 323 Ill. App. 3d 592 (2001), upon whichdefendant relied.

The appellate panel in McKenzie had specifically overruled threeThird District cases (People v. Robinson, 160 Ill. App. 3d 366 (1987);People v. Rial, 214 Ill. App. 3d 420 (1991); People v. Cokley, 219 Ill.App. 3d 209 (1991)) that had reached a result consistent with Norton.The crux of the McKenzie court's reasoning was that the legislaturehas mandated appointment of counsel for indigents desiringrepresentation at the second stage of postconviction proceedings, buthas not specifically provided for withdrawal of counsel:

"It appears from our review of the Act that the legislatureintended to create procedures to give a convicted defendanta last-ditch opportunity to change the outcome of his criminalcase. It also appears, from the legislators' decision not toprovide for withdrawal, that they intended for the defendantto have the assistance of trained counsel throughout theprocess. We, therefore, conclude from the absence ofauthorizing language that withdrawal of appointed counsel isin contravention of the statute ***." McKenzie, 323 Ill. App.3d at 595-96.

As additional support for its decision, the McKenzie court seizedupon certain comments this court made in People v. Porter, 122 Ill.2d 64 (1988), in the course of addressing separation-of-powers anddue process arguments. Those comments, taken out of context, arecited in McKenzie as the following propositions: (1) Rule 651(c) isconcerned with appointment of counsel at the appellate level, whilesection 122-2.1 of the Act provides for appointment of counsel at thetrial stage of postconviction proceedings; (2) the appointment ofcounsel at the hearing stage of postconviction proceedings is a matterfor the legislature; and (3) a postconviction petitioner is entitled tohave counsel represent him on a petition once he sets out allegationsdemonstrating a meritorious constitutional claim. McKenzie, 323 Ill.App. 3d at 596. Defendant's position before this court relies heavilyon McKenzie and makes essentially the same arguments.

We note, at the outset, that the defendant in this case arrived atthe second stage of postconviction proceedings without there everhaving been a determination that his pro se petition presented the gistof a meritorious claim. In that respect, this case differs fromMcKenzie, where such a finding was made prior to advancement tothe second stage of postconviction proceedings and the appointmentof counsel. Notwithstanding that difference, we recognize thatsections 122-2.1 and 122-4 of the Act require appointment of counselfor an indigent defendant desiring representation when his or her prose postconviction petition is not summarily dismissed by the circuitcourt within 90 days of filing, irrespective of whether the circuit courthas actually considered the merits of the petition. We begin ouranalysis with a discussion of the purpose of the Act and the proceduralmechanism for its implementation.

Illinois' Post-Conviction Hearing Act provides a proceduralmechanism through which a criminal defendant can assert " 'that in theproceedings which resulted in his or her conviction there was asubstantial denial of his or her rights under the Constitution of theUnited States or of the State of Illinois or both.' " People v. Rogers,197 Ill. 2d 216, 220-21 (2001), quoting 725 ILCS 5/122-1 (West2000). In a postconviction proceeding, the circuit court does notredetermine a defendant's guilt or innocence, but instead examinesconstitutional issues which escaped earlier review. Rogers, 197 Ill. 2dat 221. A postconviction proceeding is a collateral attack upon theprior conviction (Rogers, 197 Ill. 2d at 221) and affords only limitedreview of constitutional claims not presented at trial (People v.Coleman, 206 Ill. 2d 261 (2002)). We stress that postconvictionprocedures entail review of the prior proceeding that resulted in adefendant's conviction, whether or not evidence is introducedconcerning matters outside the record.

Under the provisions of the Act, an indigent defendant who hasnot been sentenced to death is not automatically entitled toappointment of counsel. The source of the right to counsel in apostconviction matter is statutory rather than constitutional (Peoplev. McNeal, 194 Ill. 2d 135, 142 (2000)), and the Act does not providefor appointment of counsel unless an indigent defendant's petitionsurvives the first stage of postconviction proceedings. 725 ILCS5/122-2.1, 122-4 (West 2000). If the circuit court reviews a pro sepetition and determines that it is frivolous or patently without merit,the court may summarily dismiss the petition without appointment ofcounsel. It is only after a defendant's petition has been found to setforth the gist of a meritorious claim, or the court fails to take anyaction on the petition within 90 days of filing, that the processadvances to second-stage proceedings and counsel is appointed. 725ILCS 5/122-2.1, 122-4 (West 2000). Of course, in the latter instance,the petition may well be frivolous or patently without merit, and thedefendant is appointed counsel only through the fortuity of the circuitcourt's inaction.

Once counsel is appointed for an indigent defendant, he or she isentitled only to the level of assistance guaranteed by the Act. McNeal,194 Ill. 2d at 142. This court has determined that to be only a"reasonable" level of assistance. McNeal, 194 Ill. 2d at 142; Peoplev. Turner, 187 Ill. 2d 406, 410 (1999). As this court stated in Peoplev. Owens, 139 Ill. 2d 351, 364-65 (1990):

"Because the right to counsel in post-convictionproceedings is derived from a statute rather than theConstitution, post-conviction petitioners are guaranteed onlythe level of assistance which that statute provides. Section122-4 of the Code of Criminal Procedure and Supreme CourtRule 651 provide post-conviction petitioners with areasonable level of assistance in post-conviction proceedings,but do not guarantee that they will receive the same level ofassistance that the Constitution guarantees to defendants attrial. This distinction is rational, because trial counsel plays adifferent role than counsel in post-conviction proceedings.[Citation.] At trial, counsel acts as a shield to protectdefendants from being 'haled into court' by the State andstripped of their presumption of innocence. (Ross v. Moffitt(1974), 417 U.S. 600, 610-11, 41 L. Ed. 2d 341, 351, 94 S.Ct. 2437, 2444.) Post-conviction petitioners, however, havealready been stripped of the presumption of innocence, andhave generally failed to obtain relief on appellate review oftheir convictions." (Emphasis in original.)

This court has repeatedly held that counsel must perform specificduties in his or her postconviction representation in the circuit court,as set forth in Supreme Court Rule 651(c). McNeal, 194 Ill. 2d at 142;Turner, 187 Ill. 2d at 410. Rule 651(c) requires that the record inpostconviction proceedings demonstrate that appointed counsel "hasconsulted with petitioner either by mail or in person to ascertain hiscontentions of deprivation of constitutional rights, has examined therecord of the proceedings at the trial, and has made any amendmentsto the petitions filed pro se that are necessary for an adequatepresentation of petitioner's contentions." 134 Ill. 2d R. 651(c).

Fulfillment of the third obligation under Rule 651(c) does notrequire postconviction counsel to advance frivolous or spurious claimson defendant's behalf. If amendments to a pro se postconvictionpetition would only further a frivolous or patently nonmeritoriousclaim, they are not "necessary" within the meaning of the rule.Moreover, the mere filing of an amended petition by counsel undersuch circumstances would appear to violate the proscriptions ofSupreme Court Rule 137 (155 Ill. 2d R. 137). At least one appellatepanel has held Rule 137 applicable to proceedings under the Post-Conviction Hearing Act. See People v. Bowman, 335 Ill. App. 3d1142, 1154-55 (2002). Rule 137 provides in pertinent part:

"The signature of an attorney or party constitutes a certificateby him that he has read the pleading, motion or other paper;that to the best of his knowledge, information, and beliefformed after reasonable inquiry it is well grounded in fact andis warranted by existing law or a good-faith argument for theextension, modification, or reversal of existing law; and thatit is not interposed for any improper purpose, such as toharass or to cause unnecessary delay or needless increase inthe cost of litigation." 155 Ill. 2d R. 137.

An attorney, such as the one in this case, who determines thatdefendant's claims are meritless cannot in good faith file an amendedpetition on behalf of defendant.

Defendant argues that preparation of an amended petition underthe pertinent circumstances need not violate Rule 137 if appointedcounsel does not sign the amended petition he or she prepares onbehalf of the defendant. Ignoring for the moment the attorney's rolein preparing a document for filing which he or she knows willconsume the time and energies of the court and opposing counsel byadvancing frivolous arguments, we note defendant's alternativeargument, that Rule 137 poses no problem because "[c]ounsel couldsimply aver, according to Rule 651(c), that the petition does not needto be amended and present the petitioner's contentions according tothe dictates of Rule 651(c)."

It seems to us that these arguments purposefully avoid thepertinent ethical considerations in this case and beg the questionsasked, but not adequately answered, in oral argument before thiscourt: What is defense counsel to do after he or she determines thatdefendant's petition is frivolous? Is counsel to stand mute at allsubsequent proceedings? How can counsel, ethically, "present thepetitioner's contentions" when counsel knows those contentions arefrivolous? Obviously, the answer is counsel cannot.

We find the words of the United States Supreme Court in McCoyv. Court of Appeals, 486 U.S. 429, 100 L. Ed. 2d 440, 108 S. Ct.1895 (1988), instructive as to the responsibilities of appointedcounsel, and we quote the Court at length:

"At the trial level, defense counsel's view of the merits ofhis or her client's case never gives rise to a duty to withdraw.That a defense lawyer may be convinced before trial that anydefense is wholly frivolous does not qualify his or her duty tothe client or to the court. Ethical considerations and rules ofcourt prevent counsel from making dilatory motions,adducing inadmissible or perjured evidence, or advancingfrivolous or improper arguments, but those constraints do notqualify the lawyer's obligation to maintain that the stigma ofguilt may not attach to the client until the presumption ofinnocence has been overcome by proof beyond a reasonabledoubt.

After a judgment of conviction has been entered, however,the defendant is no longer protected by the presumption ofinnocence. *** Although trial counsel may remain silent andforce the prosecutor to prove every element of the offense,counsel for an appellant cannot serve the client's interestwithout asserting specific grounds for reversal. In so doing,however, the lawyer may not ignore his or her professionalobligations. Neither paid nor appointed counsel maydeliberately mislead the court with respect to either the factsor the law, or consume the time and the energies of the courtor the opposing party by advancing frivolous arguments."McCoy, 486 U.S. at 435-36, 100 L. Ed. 2d at 451-52, 108 S.Ct. at 1900-01.

An attorney who is appointed to represent a defendant after the90-day default provision of the Act is applied may well find that he orshe represents a client attempting to advance arguments that arepatently without merit or wholly frivolous, a client whose petitionwould have been summarily dismissed had the circuit court timelyconsidered the merits of the petition. Defendant suggests that thereare no ethical constraints which would preclude postconvictioncounsel from assisting such a client in needlessly consuming the timeand energies of the court and the State by advancing frivolousarguments. McCoy holds to the contrary.

Defendant contends that appointed postconviction counsel cannotmove to withdraw because the Act does not specifically authorizewithdrawal. Defendant submits that this court must presume, from theAct's silence on this point, that the legislature intended to prohibitwithdrawal of counsel.

Legislative "silence is not an unmistakable implication."Armstrong v. Resolution Trust Corp., 157 Ill. 2d 49, 60 (1993). Forexample, in In re St. Louis, 67 Ill. 2d 43 (1977), the State argued thatit was the intent of the legislature to allow law enforcement officialsto retain juvenile records indefinitely regardless of whether chargeswere eventually brought. This court disagreed, stating, "The fact thatthe Juvenile Court Act is silent as to the expungement of juvenilerecords does not necessarily imply that such records could be madeand retained where their retention would serve no discerniblepurpose." St. Louis, 67 Ill. 2d at 47. Legislative silence is notdispositive.

In construing a statute, a court is to ascertain and give effect tothe intent of the legislature. In re C.W., 199 Ill. 2d 198, 211 (2002).In order for us to accept the defendant's position, that the legislatureintended to prohibit withdrawal of appointed postconviction counselirrespective of the merits of defendant's petition, we would have toreconcile that purported intent with three clear manifestations of intentto the contrary.

First, section 122-4 of the Post-Conviction Hearing Act,regarding pauper petitions, provides, "A petitioner who is a prisoner*** who files a pleading *** that purports to be a legal documentseeking post-conviction relief *** against the State *** in which thecourt makes a specific finding that the pleading *** is frivolous shallnot proceed as a poor person and shall be liable for the full paymentof filing fees and actual court costs ***." 725 ILCS 5/122-4 (West2000). By this provision, the legislature seeks to penalize a defendantfor filing a frivolous petition; yet, defendant, in this instance, wouldhave us presume that the legislature intended that a defendant filing afrivolous petition should have the benefit of appointed counselthroughout postconviction proceedings. The foregoing portions ofsection 122-4 exhibit an intention inconsistent with that whichdefendant attributes to the legislature.

Second, the legislature has seen fit to confer upon the circuitcourt the power, without the necessity of appointing counsel, todismiss, outright, petitions at first stage when they are deemedfrivolous or patently without merit. The fact that the legislature hasrequired appointment of counsel for indigent defendants when thecircuit court has not considered a postconviction petition in a timelymanner does not, in our opinion, indicate that the legislature intendedthat such a defendant have continuing representation throughout theremainder of postconviction proceedings, where counsel laterdetermines that the petition is frivolous or clearly without merit. Thepurpose behind appointment of counsel in the latter instance might be,and probably is, nothing more than a desire to jumpstart a process thathas shown no signs of progress. There appears to be no otherrationale for treating similarly situated defendants differently. Eachdefendant has filed a frivolous petition. The legislature surely did notintend to accord the latter defendant continuing representation aftercounsel determines the petition to be frivolous when the formerdefendant is never given counsel in the first place.

Finally, it is inconceivable that the legislature intended to grantdefendants in postconviction proceedings-who are entitled only to a"reasonable" level of assistance-a statutory right to counsel of greaterduration than that received by defendants on direct appeal--where thelevel of assistance required is of a higher magnitude and ofconstitutional dimension (see generally Owens, 139 Ill. 2d at 364-65),but counsel are nonetheless allowed to withdraw in accordance withAnders procedures. Defendant's position simply makes no sense.

We are confident that the legislature did not intend to requireappointed counsel to continue representation of a postconvictiondefendant after counsel determines that defendant's petition isfrivolous and patently without merit. Nothing in the Act requires theattorney to do so, and the attorney is clearly prohibited from doing soby his or her ethical obligations.

Counsel, in this case, determined that defendant's claims weremeritless. We agree with that assessment. Defendant does not argueto the contrary. The record clearly refutes defendant's claims.

Defendant first claimed that his guilty plea was not entered intoknowingly and voluntarily because trial counsel incorrectly advisedhim that he was eligible for the death penalty. Defendant contendedthat his trial attorney's advice regarding the availability of the deathpenalty was erroneous and, had he known that he was not eligible forthe death penalty, "he would not have given up all his rights to avoidan extended term or natural life sentence, although [he claimed] hewas not legally eligible for either one of those sentence[s]."

We believe defendant was eligible for the death penalty.Therefore, counsel's advice to that effect was not erroneous. Adefendant may be found eligible for the death penalty where "themurder was committed in a cold, calculated and premeditated mannerpursuant to a preconceived plan, scheme or design to take a humanlife by unlawful means, and the conduct of the defendant created areasonable expectation that the death of a human being would resulttherefrom." 720 ILCS 5/9-1(b)(11) (West 2000). In our opinion,defendant's conduct qualified him for the death penalty. Moreover,the record certainly suggests-from the timing of the prosecutor'sannouncement that he would not seek the death penalty-that the deathpenalty was taken off the table in the course of plea negotiations.Though the parties and the court at various times referred to the guiltyplea as an "open plea," the circuit court obviously believed the State'sdecision not to pursue the death penalty was part of the plea, as thecourt's comments indicate:

"The State has indicated that they will not be presentingaggravating evidence to seek the death penalty. I considerthat as a part of a very limited plea agreement."

Later, the court again stated that the guilty plea was "an open pleawith the one exception *** previously *** stated." In sum, the recordreveals that defense counsel's advice to defendant was not erroneousand, in fact, the record suggests that the State's decision not to pursuethe death penalty was part of a plea agreement.

The record also refutes defendant's second postconviction claim.As previously noted, defendant claimed that his guilty plea "was notentered into knowingly and voluntarily because it was based upon trialcounsel's representation of a bogus plea bargain." Specifically,defendant claimed he had pled guilty upon defense counsel'srepresentation that an agreement had been reached for a 45-yearprison sentence.

In People v. Jones, 144 Ill. 2d 242, 263 (1991), this court heldthat a defendant's acknowledgment in open court, at a pleaproceeding, that there were no agreements or promises regarding hissentence, served to contradict his postconviction assertion that he pledguilty in reliance upon an alleged, undisclosed promise by defensecounsel regarding sentencing. See also People v. Rissley, 206 Ill. 2d403, 454 (2003) (defendant's allegations were "totally contradicted bythe record of the plea"); People v. Maury, 287 Ill. App. 3d 77 (1997)(record indicated that defendant answered "no" when the circuit courtinquired whether any extraneous promises had been made to him).When the defendant in this case was asked, in open court, whether anypromises had been made to him to cause him to enter his plea ofguilty, he responded, "No." His own words refute his postconvictionallegations.

The record itself demonstrates that defendant's postconvictionallegations were patently without merit and frivolous. Under thecircumstances, the Act presents no impediment to withdrawal ofcounsel. Although we hasten to emphasize that the inability ofpostconviction counsel to "properly substantiate" a defendant's claimsis not the standard by which counsel should judge the viability of adefendant's postconviction claims, and that an attorney moving towithdraw should make some effort to explain why defendant's claimsare frivolous or patently without merit, it nonetheless appears thatcounsel fulfilled his duties as prescribed by Rule 651(c), and therecord before us supports counsel's assessment that the defendant'spostconviction claims were frivolous and without merit.Consequently, though the procedure in the circuit court leavessomething to be desired, defense counsel should be allowed towithdraw, and we affirm the judgment of the appellate court in thatrespect.

We express no opinion on issues not raised by defendant in thisappeal. The judgment of the appellate court, remanding the cause tothe circuit court, is affirmed.

Affirmed.