Appeal from the Circuit Court of Cook County Honorable Ralph Reyna, Judge Presiding
The opinion of the court was delivered by: Justice McNULTY
This case comes before us on remand from our supreme court. That court directed us to vacate and reconsider our initial opinion in this case. We hereby vacate People v. Mena, 329 Ill. App. 3d 12 (2002).
In 1998 a jury found defendant, Francisco Mena, guilty of first degree murder. After sentencing, defendant's lawyer filed a notice of appeal. He filed no appellate brief and no record for appeal. In 2000, when defendant discovered that this court had dismissed his appeal for want of prosecution, he filed a post-conviction petition, claiming that counsel's ineffective assistance deprived him of his right to appeal. The trial court dismissed the petition as frivolous. Defendant appealed.
A year after the trial court dismissed the post-conviction petition, defendant obtained new counsel, who filed a motion to vacate this court's dismissal of the direct appeal from the conviction. Over the prosecution's objection this court granted defendant's petition and reinstated the direct appeal. We decided that appeal in a separate opinion. People v. Mena, 329 Ill. App. 3d 579 (2002). On our initial review of the dismissal of the post-conviction petition we held that by reinstating the direct appeal we had already given defendant all of the relief due him, and defendant could not, at the time of our review, show prejudice from his attorney's misconduct.
Upon reconsideration, we hold that we must not consider events occurring after the trial court's decision in assessing the sufficiency of the post-conviction petition. When the trial court dismissed the petition, we had not yet reinstated the direct appeal. At the time the trial court considered the petition, the petition sufficiently alleged the gist of a constitutional claim for ineffective assistance of appellate counsel. Therefore, we must reverse the decision dismissing the petition as frivolous.
At the trial the prosecution presented evidence that defendant had bludgeoned Hector Saldana to death in 1996. Defendant's trial counsel filed a timely notice of appeal in April 1998. In August 1998 this court dismissed the appeal because defendant's attorney had filed no record and no brief.
The attorney filed a petition to vacate the dismissal the following month. In the petition the attorney stated that his "[l]aw [f]irm ha[d] not been retained by [defendant] or [his] family in order to prosecute this appeal" and that defendant "may hire counsel or *** request the Appellate Defender's Office represent [him] in this matter." Although he remained defendant's sole attorney of record, he accepted no responsibility for filing the record or briefing the appeal. He asked this court to vacate the dismissal and allow defendant an extension of time so that defendant could obtain counsel to prosecute the appeal. By order dated October 8, 1998, we denied the motion to vacate the dismissal, but we specified that we denied it without prejudice to defendant's right to renew the motion once he obtained appellate counsel.
The courts heard nothing further from defendant or his attorney for 17 months. Defendant then filed this post-conviction petition pro se. In the petition he alleged that he asked his trial attorney to file the notice of appeal. He subsequently wrote his attorney several times asking about the status of the appeal. The attorney never responded to the letters. In December 1999 defendant wrote to the clerk of the court to find the status of his appeal. His sister contacted the state appellate dDefender (the Defender). In January 2000 the Defender informed defendant that this court dismissed his appeal, and the Defender could not take any immediate action because the record still listed defendant's trial attorney as his appellate attorney. The Defender asked the trial attorney to move for appointment of the Defender as appellate counsel.
The trial court gave no reason for the decision to dismiss the post-conviction petition. On appeal defendant contends that he stated the gist of a constitutional claim. Because the trial court dismissed the petition without holding an evidentiary hearing, we review the dismissal de novo. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).
The prosecution argues that the decision to reinstate the direct appeal makes the matter moot. An issue becomes moot "if no actual controversy exists or where events occur which make it impossible for the court to grant effectual relief." Wheatley v. Board of Education of Township High School District 205, 99 Ill. 2d 481, 484-85 (1984). In Wheatley the plaintiffs brought a mandamus action, seeking an order directing the defendant school board to rescind the dismissals of plaintiffs from teaching positions. The plaintiffs also prayed for a judgment declaring that the defendant needed to hold public hearings before dismissing each plaintiff. Before trial all the named plaintiffs accepted teaching positions with the defendant. Our supreme court found the case moot because the plaintiffs received the relief they sought; the declaratory judgment would have no effect on any of the named plaintiffs. Because the court could not grant any effective relief, it dismissed the case as moot.
Here, defendant sought appointment of counsel and leave to amend the post-conviction petition to state unspecified additional claims, along with the reinstatement of his direct appeal. The trial court did not allow defendant to amend his petition. The claims in an amended petition do not face the limits of claims raised on a direct appeal, as defendant may raise issues outside the trial record in a post-conviction petition, but not on a direct appeal. See People v. Marquez, 324 Ill. App. 3d 711, 716 (2001). Thus, defendant has not received all the relief he sought. This court has authority to order the trial court to appoint post-conviction counsel for defendant and grant him leave to amend the petition (725 ILCS 5/122-2.1 (West 2000); see People v. Hernandez, 283 Ill. App. 3d 312, 318 (1996)), and that relief remains separate from the reinstatement of his appeal. The prosecution actively disputes defendant's right to such relief. The case presents an actual controversy concerning defendant's right to post-conviction counsel and his right to amend his post-conviction petition, and therefore it is not moot.
Defendant argues that his post-conviction petition stated the gist of a claim for violation of his constitutional right to the effective assistance of counsel for his appeal. The standards for determining whether a defendant has had effective assistance of trial counsel also apply for determining whether a defendant has had effective assistance of appellate counsel. People v. West, 187 Ill. 2d 418, 435 (1999). At this stage, defendant must state the gist of a claim that (1) counsel's performance fell below an objective standard of reasonableness, and (2) the deficiencies in counsel's performance resulted in prejudice to defendant. People v. Foster, 168 Ill. 2d 465, 475 (1995); People v. Prier, 245 Ill. App. 3d 1037, 1040 (1993).
The first prong presents no difficulty. Counsel's failure to perfect the appeal falls below an objective standard of reasonableness. People v. Moore, 133 Ill. 2d 331, 339 (1990). Appellate counsel of record, after filing the notice of appeal, failed to file the trial record and failed to file an appellate brief. Both steps form ...