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People v. Edwards

IN THE SUPREME COURT OF THE STATE OF ILLINOIS


November 16, 2000

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE, V. DONALD EDWARDS, APPELLANT.

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.

BACKGROUND

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.

I. ANALYSIS

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.

II.

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 Strickland v. Washington will apply to determine if in fact the defendant has been deprived of effective assistance of counsel.

The first prong, whether the attorney's performance fell below an objective standard of reasonableness under prevailing professional norms, will require a minimal factual basis. The questions will be: Did the defendant communicate a desire to appeal? Was counsel appointed? Did counsel fail to follow Rule 604(d)? The second prong, whether there is a reasonable probability that, `but for counsel's unprofessional errors, the result of the proceeding would have been different,' will need to show the merits of defendant's grounds to withdraw the plea." Wilk, 124 Ill. 2d at 107-08.

The State argues that petitioner's post-conviction petition was properly dismissed because petitioner did not allege any basis for the withdrawal of his guilty plea. Petitioner, on the other hand, argues that in People v. Moore, 133 Ill. 2d 331 (1990), this court abandoned the requirement established in Wilk that a petitioner must allege meritorious grounds for withdrawal of his guilty plea in his post-conviction petition in order to satisfy the prejudice prong of Strickland.

In Moore, a jury convicted defendant of murder and attempted armed robbery. Defense counsel filed a timely notice of appeal, but the appellate court dismissed the appeal for want of prosecution when defense counsel failed to file a docketing statement. This court reinstated defendant's appeal, reiterating the holding in Wilk that post-conviction proceedings are the appropriate remedy for counsel's failure to perfect an appeal. In Moore, however, we stated that no showing of prejudice is required where counsel failed to perfect defendant's appeal. Prejudice, we concluded, is presumed. Moore, 133 Ill. 2d at 339.

We believe that petitioner's failure to give any grounds for withdrawal of his guilty plea to his trial counsel should be considered under the first prong of Strickland. In a criminal case, a defendant's notice of appeal need not specify the grounds for his appeal. See 134 Ill. 2d R. 606(d). A notice of appeal simply describes the judgment or order, lists the name and address of defendant and his attorney, and states that defendant wishes to appeal. 134 Ill. 2d R. 606(d). Thus, the filing of a notice of appeal is a ministerial task. The filing of a motion to withdraw a guilty plea, which is a prerequisite to the notice of appeal, however, is not a ministerial task. Rule 604(d) requires a defendant who files a motion to withdraw his guilty plea to specify the grounds for withdrawal of the plea. 145 Ill. 2d R. 604(d) ("The motion [to withdraw guilty plea] shall be in writing and shall state the grounds therefor").

In this case, petitioner merely alleges that he instructed his attorney "to file an appeal." Petitioner alleges that his trial counsel responded, "On what grounds?" Petitioner, however, does not claim that he gave any reason to his counsel for withdrawing his guilty plea or that any grounds existed. Under these circumstances, we hold that trial counsel's failure to file a motion to withdraw his guilty plea was not unreasonable. We refuse to create a rule which would require defense counsel to invent grounds for withdrawal of a defendant's guilty plea when defendant fails to provide counsel with an articulable basis for doing so and he offers none in his post-conviction petition.

CONCLUSION

For the reasons stated, the judgment of the appellate court, affirming the judgment of the circuit court of Champaign County which dismissed petitioner's post-conviction petition as frivolous and patently without merit, is affirmed.

Affirmed.

JUSTICE McMORROW, dissenting:

At issue in this appeal is whether the circuit court erred when it dismissed as frivolous petitioner's pro se post-conviction petition, in which he alleged that his court-appointed attorney refused his request "to file an appeal." The majority answers this question in the negative. For the reasons detailed below, I respectfully disagree.

Petitioner was indicted on one count of unlawful possession of a controlled substance and one count of unlawful possession with intent to deliver a controlled substance. On October 15, 1997, petitioner expressed his desire to plead guilty to the count of unlawful possession with intent to deliver a controlled substance. In exchange for petitioner's plea, the State agreed to drop the remaining count and recommend a term of imprisonment not to exceed six years. The trial court admonished petitioner of his rights, accepted the plea, and sentenced petitioner to six years' imprisonment. Pursuant to Supreme Court Rule 605(b) (145 Ill. 2d R. 605(b)), the trial court then explained to petitioner that he could appeal from "the judgment of conviction on [the] plea, or the sentence imposed," but only after filing "a written motion to withdraw or take back your plea." No further pleadings were filed after sentencing.

In February 1998, petitioner filed a pro se petition for post-conviction relief. In his pro se petition, petitioner alleged, inter alia, that his trial counsel was ineffective. Specifically, petitioner claimed that his trial attorney "did not appeal" despite petitioner's "numerous requests to do so." Petitioner's pro se petition stated:

"I requested to [attorney] Lenik to file an appeal, after the Judge (DeLaMar) explained to 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. She (Atty. Lenik) also became totally unavailable in regard to the case in spite of the repeated calls by my wife on my behalf."

In denying petitioner's petition as frivolous and patently without merit, the circuit court stated in its ruling that "it 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."

Petitioner appealed, arguing that the trial court erroneously dismissed his post-conviction petition. Relying upon this court's decision in People v. Moore, 133 Ill. 2d 331 (1990), petitioner contended that his allegation that his attorney refused to perfect his appeal was sufficient to withstand dismissal without a specific showing of prejudice. The appellate court, however, citing People v. Wilk, 124 Ill. 2d 93 (1988), concluded that prejudice could not be presumed for a defendant who has pleaded guilty and agreed to a specific sentence. The appellate court therefore affirmed the judgment of the circuit court.

A majority of this court affirms the judgment of the appellate court. However, unlike the courts below, the majority resolves this case on the performance prong of Strickland rather than the prejudice prong. The majority observes that Supreme Court Rule 604(d) requires a defendant who wishes to appeal from a judgment entered upon a guilty plea to first file a motion in the trial court to withdraw his guilty plea and vacate the judgment. Such a motion "shall state the grounds" for withdrawing the plea. 145 Ill. 2d R. 604(d). The majority concludes that, because petitioner failed to set forth any grounds for withdrawing the plea in his pro se post-conviction petition, there is no basis for concluding that his trial counsel acted unprofessionally in failing to file the Rule 604(d) motion. Therefore, according to the majority, petitioner has failed to state a "gist" of a constitutional claim (People v. Gaultney, 174 Ill. 2d 410, 418 (1996)), and his pro se petition must be dismissed as frivolous and patently without merit. I disagree.

Rule 604(d) is carefully crafted to ensure that every defendant who wishes to withdraw his guilty plea and appeal has the opportunity to consult with an attorney and have that attorney review the plea proceedings for error. Rule 604(d) states that upon receipt of a motion to withdraw a guilty plea

"[t]he trial court shall then determine whether the defendant is represented by counsel, and if the defendant is indigent and desires counsel, the trial court shall appoint counsel. *** The defendant's attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the sentence or the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings." 145 Ill. 2d R. 604(d).

There is no mechanism in Rule 604(d) for dismissing a motion to withdraw a guilty plea as frivolous. This is because "[i]t would be contrary to the purpose of the rule to draw a conclusion about the legal basis of the defendant's motion before he has had an opportunity to consult with an attorney to insure that there is legally `adequate presentation of any defects' (107 Ill. 2d R. 604(d)) in his guilty plea proceedings. Because of the `strict waiver requirements of Rule 604(d), 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.' " People v. Velasco, 197 Ill. App. 3d 589, 591 (1990), quoting People v. Ledbetter, 174 Ill. App. 3d 234, 237-38 (1988).

"Rule 604(d) gives a defendant who wishes to withdraw his guilty plea the right to consult with an attorney in the presentment of the motion to the trial court." Velasco, 197 Ill. App. 3d at 591; People v. Pegues, 277 Ill. App. 3d 884, 888 (1996); People v. Barnes, 263 Ill. App. 3d 736, 738-39 (1994); People v. Adams, 74 Ill. App. 3d 727, 731 (1979); People v. Moore, 45 Ill. App. 3d 570, 572 (1976). This right to consultation ensures that, at a minimum, when a defendant who has pleaded guilty expresses a desire to withdraw his guilty plea and appeal, the plea proceedings are reviewed by an advocate for the defendant and his right to appeal is protected.

The right to consultation regarding the pursuit of an appeal does not flow solely from Rule 604(d). It is also a right of constitutional dimension. Roe v. Flores-Ortega, 528 U.S. __, 145 L. Ed. 2d 985, 120 S. Ct. __ (2000). In Flores-Ortega, the defendant was charged by the State of California with various crimes and entered a plea of guilty to second degree murder. The trial court sentenced him to 15 years to life in prison and, at that time, advised the defendant of his right to appeal within 60 days. Although defense counsel wrote "bring appeal papers" in her file, no notice of appeal was filed within the applicable time period. Four months after he was sentenced, the defendant attempted to file a pro se notice of appeal, which was rejected by the clerk of court. Having exhausted state habeas corpus proceedings, the defendant filed a federal habeas corpus petition alleging ineffective assistance of counsel on the basis of his attorney's failure to file the notice of appeal after allegedly promising the defendant that she would do so.

The United States Supreme Court held that Strickland provided the proper framework for evaluating the defendant's claim. With respect to the performance prong of Strickland, the Court observed that it has been "long held that a lawyer who disregards specific instructions from a defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Flores-Ortega, 528 U.S. at ___, 145 L. Ed. 2d at 995, 120 S. Ct. at 1035. The Court explained that this is so because counsel's failure to file a notice of appeal cannot be considered a strategic decision; "filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant's wishes." Flores-Ortega, 528 U.S. at ___, 145 L. Ed. 2d at 995, 120 S. Ct. at 1035. Moreover, a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to do so. Flores-Ortega, 528 U.S. at ___, 145 L. Ed. 2d at 995, 120 S. Ct. at 1035.

The Court went on to explain, however, that it could not determine from the record before it whether the defendant had conveyed his wishes regarding whether to appeal. Given this fact, the Court concluded that "we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking a separate, but antecedent, question: whether counsel in fact consulted with the defendant about an appeal." Flores-Ortega, 528 U.S. at ___, 145 L. Ed. 2d at 995, 120 S. Ct. at 1035. Thus, in the Court's words, the question at "the heart of this case" was, "Under what circumstances does counsel have an obligation to consult with the defendant about an appeal?" Flores-Ortega, 528 U.S. at ___, 145 L. Ed. 2d at 996, 120 S. Ct. at 1035.

The Court used the term "consult" "to convey a specific meaning-advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes." Flores-Ortega, 528 U.S. at ___, 145 L. Ed. 2d at 997, 120 S. Ct. at 1035. The Court held that

"counsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think *** that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Flores-Ortega, 528 U.S. at ___, 145 L. Ed. 2d at 997, 120 S. Ct. at 1036.

In Illinois, filing a Rule 604(d) motion is the first step in perfecting an appeal from a guilty plea. Petitioner alleges that he told his counsel that he was interested in appealing. The right to consult "about an appeal" recognized in Flores-Ortega is thus applicable to the case at bar.

Applying the holding of Flores-Ortega, and the principles of Rule 604(d), I would hold that petitioner has stated the gist of a claim that his counsel performed deficiently. Petitioner states that, after he told his attorney that he wished to appeal, she merely replied "On what grounds?" and thereafter "became totally unavailable in regard to the case in spite of the repeated calls by my wife on my behalf." I believe that these allegations, which we must take as true (People v. Morgan, 187 Ill. 2d 500, 563 (1999) (Bilandic, J., dissenting)), adequately state that counsel failed to consult with petitioner within the meaning of Rule 604(d) or Flores-Ortega. According to petitioner, defense counsel made no effort to explain to him what grounds might form the basis of a motion to withdraw a guilty plea. She made no inquiry as to whether petitioner had any factual knowledge of which she was unaware that might have affected the validity of the plea proceedings. She did not advise petitioner of the advantages and disadvantages of filing a motion to withdraw the plea and of appealing. Nor is there any indication that defense counsel reviewed the trial court file and transcript of the plea proceedings to check for error. Moreover, defense counsel did not explain to petitioner the consequences of her decision not to file a motion to withdraw the guilty plea. She did not explain to petitioner that he could no longer rely upon her taking any action to preserve his right to appeal and that, if he wished to preserve his right to appeal, he would have to file a pro se motion to withdraw his guilty plea.

The instant case raises concerns similar to those present in People v. Barnes, 263 Ill. App. 3d 736, 738-39 (1994), and People v. Velasco, 197 Ill. App. 3d 589 (1990). In those decisions, defendant Barnes and defendant Velasco notified the circuit court that they wished to withdraw their guilty pleas. Both defendants were represented by appointed counsel at hearings which were held on their motions to withdraw the pleas. At the conclusion of these hearings, the motions were summarily denied. However, during both hearings, defense counsel filed nothing and said nothing on behalf of the defendants. In both cases, the appellate court concluded that counsel had failed to comply with the consultation and review requirements of Rule 604(d). Because the record in both cases contained no indication that counsel had complied with Rule 604(d), both causes were reversed.

The error in the instant case is, some respects, actually worse than that present in Barnes and Velasco. Here, petitioner directly and repeatedly informed his attorney that he wished to appeal from his guilty plea. Yet, despite this direct request, defense counsel allegedly failed to consult with him regarding the motion to withdraw the plea or the appeal and failed to review the plea proceedings for error. Defense counsel is not required to "invent grounds for withdrawal of a defendant's guilty plea." Slip op. at 5. She is required, however, to comply with the consultation and review requirements set forth in Rule 604(d) when a defendant expressly states that he wishes to appeal. Thus, contrary to the majority, I would hold that petitioner has stated the gist of a claim that defense counsel performed deficiently.

The majority's holding undermines the safeguards of consultation and review built into Rule 604(d). The majority's analysis also begs a very significant question: How, in the absence of consultation with an attorney, is a pro se defendant to know whether grounds exist for filing a motion to withdraw under Rule 604(d)? This court has explained that, in general, a motion to withdraw a guilty plea should be allowed " `[w]here it appears that the plea of guilty was entered on a misapprehension of the facts or of the law, or in consequence of misrepresentations by counsel or the State's Attorney or someone else in authority, or the case is one where there is doubt of the guilt of the accused, or where the accused has a defense worthy of consideration by a jury, or where the ends of justice will be better served by submitting the case to a jury.' " (Emphasis added.) People v. Davis, 145 Ill. 2d 240, 244 (1991), quoting People v. Morreale, 412 Ill. 528, 531-32 (1952). Is it reasonable to expect that a pro se defendant will know when points of law have been "misapprehended" or when "a defense worthy of consideration by a jury" has been overlooked? Is it reasonable to expect, for example, that a pro se defendant will know when he has not been properly admonished? Will a pro se defendant know if the charging instrument incorrectly alleged the offense to which he pleaded guilty thus rendering that charge void? Will a pro se defendant who enters into a negotiated plea know if the sentence he received is not authorized by statute?

And what is reasonable to expect of a defendant who pleads guilty without reaching any agreement with the State regarding sentencing and whose attorney subsequently fails to file a motion to reconsider the sentence imposed despite the defendant's request to do so? Pursuant to Rule 604(d), a motion to reconsider a sentence, like a motion to withdraw a plea, must state "the grounds therefor." Accordingly, the rationale adopted by the majority would apply equally to situations where defense counsel fails to file a motion to reconsider a sentence. Would a pro se defendant whose attorney declined to file a motion to reconsider know if improper aggravating evidence was relied upon in sentencing or if any one of an almost limitless number of other possible legal errors occurred during the sentencing proceeding?

The majority's holding, which places the burden upon the pro se defendant to recognize both legal and factual errors in the plea process, will inevitably result in defendants being improperly denied any meaningful review of plea proceedings. For example, assume that a defendant pleads guilty and is sentenced after being improperly admonished or after some other legal error occurs. Assume also that trial counsel, for whatever reason, fails to notice the error. No motion to withdraw the plea or motion to reconsider sentence is filed and no appeal is taken. The defendant subsequently files a pro se post-conviction petition alleging that he asked his counsel to file a motion to withdraw the plea or reconsider sentence and to appeal, but that his counsel ignored the request. Based upon the majority's holding in this case, the post-conviction trial court must dismiss the petition as frivolous and patently without merit because no grounds for filing the Rule 604(d) motion or motion to reconsider sentence are set forth. Thus, even though no attorney has ever reviewed the proceedings for error and no appellate review of any kind has occurred, the defendant is denied relief. An unlawful sentence is left to stand or, worse, an individual who should not have been incarcerated under the law remains in prison. This is the inescapable result of the position taken by the majority today.

The majority's analysis is illogical and profoundly unfair. It is also contrary to established law. Over 30 years ago, in Rodriquez v. United States, 395 U.S. 347, 23 L. Ed. 2d 340, 89 S. Ct. 1715 (1969), the United States Supreme Court rejected the reasoning proffered by the majority today. In Rodriquez, the defendant's trial counsel had failed to submit a notice of appeal within the appropriate time period. Although the defendant thereafter attempted to file a notice of appeal himself, the trial court ruled that the expiration of the appeal period deprived the court of jurisdiction over the matter. The defendant subsequently pursued post-conviction relief under 28 U.S.C. §2255, alleging that he had been improperly denied his right to appeal. Both the district court for the Northern District of California and the Court of Appeals for the Ninth Circuit denied the defendant's petition, holding that he had failed to disclose what errors he would have raised on appeal. In rejecting this reasoning, the United States Supreme Court held:

"Those whose education has been limited and those, like petitioner, who lack facility in the English language might have grave difficulty in making even a summary statement of points to be raised on appeal. Moreover, they may not even be aware of errors which occurred at trial. They would thus be deprived of their only chance to take an appeal even though they have never had the assistance of counsel in preparing one. *** Those whose right to appeal has been frustrated should be treated exactly like any other appellants; they should not be given an additional hurdle to clear just because their rights were violated at some earlier stage in the proceedings. Accordingly, we hold that the courts below erred in rejecting petitioner's application for relief because of his failure to specify the points he would raise were his right to appeal reinstated." (Emphasis added.) Rodriquez, 395 U.S. at 330, 23 L. Ed. 2d at 344, 89 S. Ct. at 1717.

A statement of the grounds for withdrawing a guilty plea or for reconsidering a sentence may require the same kind of legal expertise as a statement of the grounds for appeal. Thus, the reasoning of Rodriquez applies with full force to the cause at bar. By placing the burden upon the pro se petitioner to specify to the post-conviction court the grounds for withdrawing the guilty plea, the majority contravenes Rodriquez.

This court long ago stated that

"while the right of appeal in a criminal case is not per se of constitutional dimension (see Douglas v. California, 372 U.S. 353, 365, 9 L. Ed. 2d 811, 819, 83 S. Ct. 814), any denial of it is subject to the due-process and equal-protection guarantees of the Federal and State constitutions. Moreover, recent decisions have implemented this right, providing that indigents are entitled to competent appointed counsel on appeal (Douglas v. California), even where pleas of guilty were made below (Milani v. Illinois, 386 U.S. 12, 17 L. Ed. 2d 702, 87 S. Ct. 874), and to free transcripts of the trial record. (Griffin v. Illinois, 351 U.S. 12, 100 L. Ed. 891, 76 S. Ct. 585.) These decisions reflect courts' concern with providing that any defendant who so desires can obtain at least one full appellate review of his conviction." (Emphasis added.) People v. Brown, 39 Ill. 2d 307, 311-12 (1968).

The majority's holding guarantees that certain defendants, despite their express wishes, will be denied any review of their plea proceedings. I cannot agree with this result. I therefore dissent.

CHIEF JUSTICE HARRISON and JUSTICE FREEMAN join in this dissent.

20001116

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