The opinion of the court was delivered by: Justice Heiple
Docket No. 87930-Agenda 12-May 2000.
Supreme Court Rule 604(d) requires a defendant who wishes to appeal from a judgment entered upon a guilty plea to file a motion to withdraw his guilty plea in the trial court within 30 days of sentencing. 145 Ill. 2d R. 604(d). In this case, petitioner filed a pro se post-conviction petition alleging that his trial counsel was ineffective for failing to perfect his appeal by filing a motion to withdraw his guilty plea despite petitioner's numerous requests to do so. The circuit court dismissed the post-conviction petition as frivolous and patently without merit, and the appellate court affirmed (305 Ill. App. 3d 853). We likewise affirm.
Petitioner was charged with two counts of unlawful possession with intent to deliver a controlled substance. Petitioner pleaded guilty to count I, and, in exchange, the State dropped count II and recommended to the trial court that petitioner be sentenced to six years in the Department of Corrections and fined $500. The trial court accepted this fully negotiated plea agreement and sentenced petitioner according to the State's recommendation. The trial court admonished petitioner that, even though he pled guilty, he still had a right to appeal. The court informed petitioner that if he wished to appeal, he must file a motion to withdraw his guilty plea within 30 days of his conviction. Defense counsel filed neither a motion to withdraw guilty plea nor a notice of appeal.
Petitioner subsequently filed a pro se post-conviction petition in Champaign County circuit court alleging, inter alia, that he did not appeal due to the fact that his trial attorney, Diana Lenik, "engaged in illegal conduct, involving moral turpitude, dishonesty, fraud, deceit, and misrepresentation, notwithstanding numerous requests to do so, insofar as to the appeal, and also the trial proceedings, as a whole, to the fullest extent." In his petition, petitioner avers:
"I requested Atty. Lenik to file an appeal after the judge told me that I could do so. Atty. Lenik stated, in regard to the appeal, quote [sic] On what grounds? unquote [sic]. Atty. Lenik had taken it or decided for herself not to file an appeal in spite of my numerous requests to."
The circuit court dismissed the petition, finding the claims in the petition frivolous and patently without merit. The circuit court, construing petitioner's claim regarding his counsel's failure to file an appeal as an ineffective-assistance-of-counsel claim, held that petitioner's claim was meritless because petitioner failed to demonstrate that he had any basis for withdrawing his guilty plea. As a result, the circuit court concluded, petitioner failed to show he was prejudiced by his trial counsel's failure to file a motion to withdraw his guilty plea.
The appellate court affirmed the dismissal of the post-conviction petition, holding that petitioner failed to state a claim for ineffective assistance of counsel because the petition did not allege how petitioner was prejudiced or why his guilty plea should have been withdrawn. The appellate court recognized that in People v. Moore, 133 Ill. 2d 331 (1990), this court held that the prejudice prong of the test for ineffective assistance of counsel established in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), is not required where counsel fails to perfect defendant's appeal. Prejudice in such cases, the Moore court concluded, is presumed. Moore, 133 Ill. 2d at 339. The appellate court in this case concluded, however, that Moore is distinguishable because the defendant in Moore was convicted after a trial. Unlike the defendant in Moore, petitioner in this case does not have an automatic right to an appeal, the appellate court reasoned, because he entered a fully negotiated guilty plea. In the view of the appellate court, a defendant who pleads guilty does not need the safety net of an appeal to protect against a wrongful conviction. The appellate court noted that there are very few grounds for withdrawing a guilty plea; therefore, a defendant does not need the legal expertise of counsel to allege that his guilty plea was involuntary.
When a defendant files a post-conviction petition in a non-capital case, the circuit court first must determine independently whether the petition is frivolous and patently without merit. People v. Gaultney, 174 Ill. 2d 410, 418 (1996); see 725 ILCS 5/122-2.1(a)(2) (West 1998). The circuit court makes no factual inquiries into the petitioner's allegations at this stage of the proceedings; the court's inquiry is limited solely to the sufficiency of the allegations in the petition. People v. Coleman, 183 Ill. 2d 366, 387 (1998). To survive dismissal at this stage, a petition need only present the "gist" of a constitutional claim. Gaultney, 174 Ill. 2d at 418. Our review of a dismissal of a post-conviction petition at this stage of the proceedings is de novo. Coleman, 183 Ill. 2d at 387-89.
Petitioner alleges that his trial counsel was ineffective for failing to perfect his appeal by filing a motion to withdraw his guilty plea despite petitioner's numerous requests to do so. Under Strickland, a defendant claiming ineffective assistance of counsel must show (1) that counsel's representation "fell below an objective standard of reasonableness" and (2) that counsel's deficient performance prejudiced defendant. Strickland, 466 U.S. at 688, 692, 80 L. Ed. 2d at 693, 696, 104 S. Ct. at 2064, 2067.
In People v. Wilk, 124 Ill. 2d 93 (1988), defense counsel filed notices of appeal after defendants pled guilty. Defense counsel, however, failed to file motions to withdraw defendants' guilty pleas. Under Supreme Court Rule 604(d), the filing of such a motion is a prerequisite for an appeal. Rule 604(d) provides in relevant part:
"No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw his guilty plea and vacate the judgment. The motion shall be in writing and shall state the grounds therefor." 145 Ill. 2d R. 604(d).
This court held that the appropriate remedy for defense counsel's failure to perfect defendants' right to appeal lies in the Post-Conviction Hearing Act. Wilk, 124 Ill. 2d at 107. We held:
"[T]he defendant pro se needs only to allege a violation of his sixth amendment right to effective assistance of counsel, due to the attorney's failure to preserve appeal rights, and allege whatever grounds he or she would have had to withdraw his or her plea of guilty had a proper motion to withdraw been filed by defendant's counsel prior to the filing of a notice of appeal. At the hearing on the post-conviction petition, the two-pronged test laid down in ...