Appeal from the Circuit Court of Cook County. No. 97 C6 60334 Honorable Paul J. Nealis, Judge Presiding
The opinion of the court was delivered by: Justice Cohen
The petitioner, London Collins, appeals from an order of the circuit court of Cook County dismissing his pro se petition for post-conviction relief as "patently without merit." We reverse.
On August 20, 1998, as part of a plea agreement negotiated by appointed counsel, the petitioner 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 Controlled Substances Act (720 ILCS 570/401(a)(2)(B) (West 1994)), a Class X felony offense carrying a minimum prison sentence of nine years. Pursuant to the plea agreement, a second count of possession of a controlled substance was dismissed. The trial judge entered judgment on the plea and 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 the petitioner's behalf.
On March 16, 1999, the petitioner filed a pro se petition for post-conviction relief pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 1994)), alleging that petitioner "wanted to appeal the case, which my counsel told me that he will [sic], But [sic] never did." Petitioner attached to his petition his own affidavit, attesting that "[a]ll the facts presented are true and correct to the best of my recollection." No other supporting affidavits accompanied the petition. A reviewing judge summarily dismissed the petition, finding that it was "patently without merit." The petitioner appeals from that decision, asserting that the reviewing judge erred in summarily dismissing the post-conviction petition where the petitioner had stated the "gist of a meritorious 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 The order of October 10 was subsequently withdrawn to allow consideration of the State's motion for leave to cite additional authority, which we hereby grant.
The standard of review of the summary dismissal of a post-conviction petition under the Act is 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 the petition is frivolous or patently without merit and thus subject to summary dismissal. 725 ILCS 5/122-2.1(a)(2) (West 1994); Anderson, 287 Ill. App. 3d at 1027. Finding the petition now before us to be patently without merit, the trial court summarily dismissed it. Therefore, the petition never progressed 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 gist of a constitutional claim." People v. Gaultney, 174 Ill. 2d 410, 418 (1996). "This is a low threshold and a defendant need only present a limited amount of detail in the petition." Gaultney, 174 Ill. 2d at 418. It should be noted that this is a significantly lower evidentiary burden than the "substantial showing of a violation of constitutional rights" required to merit an evidentiary hearing on the petition 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 of counsel, a defendant must show (1) that counsel's representation "fell below an objective standard of 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 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." 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 post-conviction petition is used to remedy counsel's failure to perfect defendant's appeal. Prejudice is presumed in such circumstances. Moore, 133 Ill. 2d at 339.
In its motion for leave to cite additional authority, the State directs us to the recent decision of 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 on a charge of possession of a controlled substance with intent to deliver. No motion to withdraw the guilty plea or notice of appeal was ever filed on ...