The opinion of the court was delivered by: Justice McMORROW
Docket No. 87930-Agenda 6-May 2001.
The defendant, Donald Edwards, filed a pro se post-conviction petition in the circuit court of Champaign County pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1998)) in which he alleged that, following the entry of his guilty plea, his court-appointed attorney refused his request to "file an appeal" and became "totally unavailable in regard to the case." The circuit court dismissed the petition as frivolous or patently without merit. See 725 ILCS 5/122-2.1(a)(2) (West 1998). The appellate court affirmed. 305 Ill. App. 3d 853. For the reasons that follow, we reverse the judgments of the circuit and appellate courts.
Defendant was indicted in 1997 on one count of unlawful possession of a controlled substance and one count of unlawful possession with intent to deliver a controlled substance. In October 1997, while before the circuit court, defendant stated that he wished to plead guilty to the count of unlawful possession with intent to deliver a controlled substance. In exchange for defendant's plea, the State agreed to drop the remaining count and recommend a term of imprisonment not to exceed six years. The circuit court admonished defendant of his rights, accepted the plea, and sentenced defendant to six years' imprisonment.
The circuit court then informed defendant that, although he had pled guilty, he retained the right to appeal. Pursuant to Supreme Court Rule 605(b) (145 Ill. 2d R. 605(b)), the circuit court explained to defendant the conditions to pursuing an appeal from a guilty plea that are set forth in Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)). 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 circuit court to withdraw his guilty plea within 30 days of sentencing. 145 Ill. 2d R. 604(d). Such a motion must specify the grounds for withdrawal of the plea. 145 Ill. 2d R. 604(d) ("The motion shall be in writing and shall state the grounds therefor"). In the case at bar, the circuit court properly admonished defendant 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, defendant filed a pro se petition for post-conviction relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1996)). Defendant made a number of allegations within his petition including, inter alia, an allegation that his attorney failed to subpoena witnesses that defendant had requested and an allegation that his attorney showed a lack of interest in his case. Defendant also alleged the following:
"I requested to [my 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."
The circuit court found that "[t]his allegation [was] in essence a claim of ineffective assistance of counsel for failure to allow the Petitioner to appeal." After reviewing pertinent case law relating to claims of ineffective assistance of counsel and Rule 604(d), the circuit court concluded 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. In the least, [this] would apparently mean that the Petitioner would have to show grounds for a motion to withdraw a guilty plea." The circuit court determined that "[t]he Petition for Post-Conviction Relief as provided to this Court does not show *** [any] recognized issues that can be raised in a Motion to Withdraw Guilty Plea." The circuit court then dismissed defendant's petition as frivolous or patently without merit. See 725 ILCS 5/122-2.1(a)(2) (West 1998).
Defendant appealed, arguing that the circuit court erred in concluding that defendant had to show how he was prejudiced by his attorney's failure to file a motion to withdraw his guilty plea. Relying upon this court's decision in People v. Moore, 133 Ill. 2d 331 (1990), defendant contended that prejudice should be presumed. In Moore, this court held that the prejudice prong of the test for ineffective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)) need not be established where counsel fails to perfect a defendant's appeal after trial and the defendant subsequently seeks post-conviction relief. In such cases, prejudice is presumed. Moore, 133 Ill. 2d at 339.
The appellate court, however, distinguished Moore on the ground that the defendant in that case was convicted following a trial. Citing People v. Wilk, 124 Ill. 2d 93 (1988), and People v. Wendt, 283 Ill. App. 3d 947 (1996), the appellate court concluded that prejudice should not be presumed for a defendant who has pleaded guilty and agreed to a specific sentence. 305 Ill. App. 3d at 857-58. Finding no grounds for withdrawing the guilty plea set forth in defendant's pro se petition, or any explanation of how defendant was prejudiced by his counsel's failure to file the motion to withdraw the guilty plea, the appellate court affirmed the judgment of the circuit court. 305 Ill. App. 3d at 858.
We granted defendant's petition for leave to appeal (177 Ill. 2d R. 315(a)) and, on November 16, 2000, issued an opinion affirming the judgment of the appellate court. Defendant subsequently filed a petition for rehearing, which we allowed. 155 Ill. 2d R. 367; 134 Ill. 2d R. 612(p).
The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)) provides a remedy for defendants who have suffered a substantial violation of their constitutional rights at trial. Under the Act, a post-conviction proceeding not involving the death penalty contains three stages. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). At the first stage, the circuit court must independently review the post-conviction petition within 90 days of its filing and determine whether "the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 1998). If the court determines that the petition is either frivolous or patently without merit, the court must dismiss the petition in a written order. 725 ILCS 5/122-2.1(a)(2) (West 1998). A post-conviction petition is considered frivolous or patently without merit only if the allegations in the petition, taken as true and liberally construed, fail to present the "gist of a constitutional claim." Gaultney, 174 Ill. 2d at 418, citing People v. Porter, 122 Ill. 2d 64, 74 (1988). The "gist" standard is "a low threshold." Gaultney, 174 Ill. 2d at 418. To set forth the "gist" of a constitutional claim, the post-conviction petition "need only present a limited amount of detail" (Gaultney, 174 Ill. 2d at 418) and hence need not set forth the claim in its entirety. Further, the petition need not include "legal arguments or [citations] to legal authority." Gaultney, 174 Ill. 2d at 418.
In his special concurrence, Justice Fitzgerald notes that several decisions from our appellate court have stated that, under the "gist" standard, the pro se defendant must " `plead sufficient facts from which the trial court could find a valid claim of deprivation of a constitutional right.' " (Emphasis in original.) Slip op. at 18 (Fitzgerald, J., concurring), quoting People v. Lemons, 242 Ill. App. 3d 941, 946 (1993). In our view, the "sufficient facts" test used in Lemons and other appellate decisions is at odds with this court's holdings and should be avoided.
On its face, the "sufficient facts" test requires a pro se defendant to file a factually complete petition at the first stage of the post-conviction proceedings. In other words, the defendant must allege facts that would support all the elements of a constitutional claim. This conclusion follows from the requirement, as stated in Lemons, that the facts alleged must be such that the "trial court could find a valid claim of deprivation of a constitutional right." Lemons, 242 Ill. App. 3d at 946. Necessarily, if facts supporting all the elements of a constitutional claim are not included in the petition, the circuit court could not "find a valid claim."
However, requiring this type of full or complete pleading is contrary to this court's holding that the pro se defendant "need only present a limited amount of detail" (Gaultney, 174 Ill. 2d at 418) to survive summary dismissal at the first stage of the post-conviction proceedings. It is also at odds with the "gist" standard itself since, by definition, a "gist" of a claim is something less than a completely pled or fully stated claim.
Further, the "sufficient facts" test imposes too heavy a burden on the pro se defendant. While in a given case the pro se defendant may be aware of all the facts pertaining to his claim, he will, in all likelihood, be unaware of the precise legal basis for his claim or all the legal elements of that claim. In many cases, the pro se defendant will be unaware that certain facts, which in his mind are tangential or secondary, are, in fact, critical parts of a complete and valid constitutional claim. Under the "sufficient facts" test, however, the pro se defendant must recognize the facts that need to be pled to support a "valid claim." This is an unrealistic requirement. Accordingly, we decline to adopt the "sufficient facts" test.
If the circuit court does not dismiss the post-conviction petition as frivolous or patently without merit, then the petition advances to the second stage. Counsel is appointed to represent the defendant, if necessary (725 ILCS 5/122-4 (West 1998)), and the State is allowed to file responsive pleadings (725 ILCS 5/122-5 (West 1998)). At this stage, the circuit court must determine whether the petition and any accompanying documentation make a substantial showing of a constitutional violation. See People v. Coleman, 183 Ill. 2d 366, 381 (1998). If no such showing is made, the petition is dismissed. If, however, a substantial showing of a constitutional violation is set forth, then the petition is advanced to the third stage, where the circuit court conducts an evidentiary hearing (725 ILCS 5/122-6 (West 1998)). Gaultney, 174 Ill. 2d at 418.
Although the circuit court in the instant case dismissed defendant's petition at the first stage of the post-conviction proceedings, we note that the appellate court, in reviewing the circuit court's decision, applied both the first and second stage standards for determining whether a non-capital, post-conviction petition should be dismissed. At the outset of its opinion, the appellate court correctly indicated that the issue presented in this case is whether defendant's petition is frivolous or patently without merit. 305 Ill. App. 3d at 855. At the conclusion of its opinion, however, the appellate court stated: "We affirm the trial court's dismissal of defendant's post-conviction petition. Under the Post-Conviction Hearing Act, defendant has the burden of showing a substantial violation of his constitutional rights occurred in the proceedings that resulted in his conviction. Defendant's petition failed to state a claim for ineffective assistance of counsel ***." 305 Ill. App. 3d at 858.
These latter statements are inappropriate, given the procedural posture of this case. The relevant question in the case at bar is not whether defendant's petition makes a substantial showing of a constitutional violation; that is a second stage inquiry. Rather, the question we must address is whether, pursuant to section 122-2.1(a)(2) of the Act, defendant's petition was properly dismissed at the first stage of the post-conviction proceedings. Thus, the issue before us is limited solely to whether defendant's "petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 1998).
Our review of the circuit court's dismissal of defendant's post-conviction petition is de novo. As we have explained, "[d]ue to the elimination of all factual issues at the dismissal stage of a post-conviction proceeding, the question is, essentially, a legal one, which requires the reviewing court to make its own independent assessment of the allegations. Thus, a court of review [is] free to substitute its own judgment for that of the circuit court in order to formulate the legally correct answer." Coleman, 183 Ill. 2d at 388.
Defendant argues that his post-conviction petition should not have been dismissed as frivolous or patently without merit by the circuit court because the petition raises a non-frivolous claim that his trial counsel was constitutionally ineffective for failing to file a motion to withdraw his guilty plea and appeal. As noted, the appellate court rejected this argument. The appellate court concluded that defendant's petition was properly dismissed as frivolous because the petition failed to include any explanation of "how defendant was prejudiced or why his guilty plea should be withdrawn." 305 Ill. App. 3d at 858. Drawing a distinction between convictions obtained following a trial and convictions obtained by guilty plea, the appellate court rejected defendant's contention that prejudice should be presumed for a pro se defendant who alleges he has been deprived of his right to appeal by his trial counsel's failure to file a motion to withdraw a guilty plea. In so holding, the appellate court distinguished the United States Supreme Court's decision in Rodriquez v. United States, 395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715 (1969).
In Rodriquez, the defendant was convicted following a jury trial on several narcotics charges (see Rodriquez v. United States, 387 F.2d 117 (9th Cir. 1967)). The defendant's trial counsel subsequently 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 District 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 Supreme Court held:
"The Ninth Circuit seems to require an applicant under 28 USC §2255 to show more than a simple deprivation of [the right to appeal] before relief can be accorded. It also requires him to show some likelihood of success on appeal; if the applicant is unlikely to succeed, the Ninth Circuit would characterize any denial of the right to appeal as a species of harmless error. We cannot subscribe to this approach.
Applicants for relief under §2255 must, if indigent, prepare their petitions without the assistance of counsel. [Citation.] 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." Rodriquez, 395 U.S. at 330, 23 L. Ed. 2d at 344, 89 S. Ct. at 1717.
The appellate court in the case at bar limited Rodriquez to those instances where a pro se defendant alleges that he was denied a right to appeal following trial. Recognizing that "[m]ost defendants are not trained in the law," the appellate court concluded that "defendants convicted after trial should not be denied appellate counsel." 305 Ill. App. 3d at 858. According to the appellate court, "[f]or a defendant convicted after trial, who has always professed innocence, the right to appeal insures due process and provides an important safety net to those who may have been wrongly convicted." 305 Ill. App. 3d at 858.
In contrast, the appellate court reasoned, "a defendant who has admitted guilt [does not] need a safety net to protect against a wrongful conviction." 305 Ill. App. 3d at 858. The court noted that, on appeal from a guilty plea, "[w]ith certain exceptions, the defendant is `limited to structural challenges to the plea proceedings themselves, i.e., whether the plea was entered voluntarily and intelligently based on competent advice from counsel.' " 305 Ill. App. 3d at 858, quoting Wendt, 283 Ill. App. 3d at 957. According to the appellate court, "[a] defendant does not need appellate counsel or legal expertise to allege his plea was involuntary or that he was tricked into pleading guilty." 305 Ill. App. 3d at 858. Thus, the appellate court declined to presume prejudice and, instead, concluded that it was appropriate to place the burden on the pro se defendant to explain why his guilty plea should be withdrawn.
Shortly after the appellate court filed its opinion in this case, the Supreme Court issued its decision in Roe v. Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000). In that decision, the Supreme Court rejected the proposition that Rodriquez is limited to those cases where a defendant's conviction is obtained following a trial.
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 ...