Appeal from the Circuit Court of Lake County. No. 00-CF-1885 Honorable Victoria A. Rossetti, Judge, Presiding.
The opinion of the court was delivered by: Justice Bowman
Defendant, Carlos Rivera, appeals the circuit court's order summarily dismissing his petition pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--1 et seq. (West 2000)). Defendant contends that the petition states a valid claim that he was deprived of the effective assistance of counsel when his lawyer did not heed his request to appeal. We reverse and remand.
Defendant pleaded guilty to aggravated criminal sexual abuse (720 ILCS 5/12--16(d) (West 2000)). A plea agreement called for a sentence cap of five years. After hearing the factual basis, the trial court accepted the plea and sentenced defendant to three years' imprisonment. The court later granted defendant's motion to reconsider the sentence and resentenced him to 4 years' probation, including 20 months' periodic imprisonment.
Defendant did not file a direct appeal. However, on July 25, 2001, he filed a post-conviction petition. Defendant asserted that he was deprived of the effective assistance of counsel when his lawyer did not perfect an appeal after defendant asked him to do so. The petition also alleged that a felony charge was not appropriate to the facts of the case, that a sentence of more than one year of periodic imprisonment was illegal, and that he did not receive day-for-day credit to which he was entitled.
The trial court summarily dismissed the petition, but ordered that defendant receive credit against his periodic imprisonment term for time he spent in jail. Defendant timely appealed.
Defendant argues that the trial court erred in summarily dismissing his petition because it stated the gist of a constitutional claim of ineffective assistance of counsel. He contends that counsel's failure to perfect a direct appeal after defendant asked him to do so amounts to per se ineffective assistance.
The Act provides a procedural mechanism for a criminal defendant to assert that he was deprived of a constitutional right during the proceedings resulting in his conviction. People v. Enis, 194 Ill. 2d 361, 375-76 (2000). A post-conviction proceeding is a collateral attack on the conviction and is not intended to relitigate a defendant's guilt or innocence. People v. Evans, 186 Ill. 2d 83, 89 (1999). A defendant is not entitled to an evidentiary hearing unless the petition's allegations, supported by the trial record and any accompanying affidavits, make a substantial showing of a constitutional violation. Enis, 194 Ill. 2d at 376. A ruling on the sufficiency of defendant's allegations is a legal determination and, therefore, our review is de novo. People v. Coleman, 183 Ill. 2d 366, 378 (1998).
In People v. Edwards, 197 Ill. 2d 239, 253 (2001), the court held that defense counsel was ineffective for ignoring the defendant's instructions to appeal, even though the defendant had pleaded guilty and did not identify a specific issue he wished to raise. A defendant whose lawyer fails to perfect an appeal does not have to show prejudice beyond the fact that he lost his right to appeal. People v. Swanson, 276 Ill. App. 3d 130, 132 (1995). Here, as in Edwards and Swanson, defendant alleges that he requested an appeal but his lawyer did not take the necessary steps to perfect one.
The State first contends that defendant waived this issue because the record on appeal does not contain a transcript from a hearing held on October 12, 2001, at which the trial court disposed of defendant's petition. However, the minute order from that date states that only the trial judge was present and the matter was "STRICKEN FROM CALL." Thus, it is apparent that no hearing occurred on that date.
The State's response on the merits is difficult to follow. The State repeatedly refers to defense counsel's statement that they "have been able to provide a certificate pursuant to [Supreme Court Rule] 604(d)." See 188 Ill. 2d R. 604(d). The State does not provide a record citation for this statement (see 188 Ill. 2d R. 341(e)(7)) but presumably intends to refer to a statement in the motion to reconsider the sentence. The significance of this statement is not apparent. There is no dispute that defense counsel filed a motion to reconsider the sentence. Despite the ambiguous reference in the motion, no Rule 604(d) certificate appears in the record on appeal. However, because defendant's plea was partially negotiated, a motion to reconsider the sentence was improper and did not preserve defendant's right to appeal. See People v. Linder, 186 Ill. 2d 67, 74 (1999). Thus, whether or not defense counsel filed a Rule 604(d) certificate in conjunction with the motion to reconsider the sentence simply has no bearing on whether counsel perfected defendant's appeal.
Citing People v. Lemons, 242 Ill. App. 3d 941, 946 (1993), the State argues that the petition fails to state "sufficient facts" from which a constitutional claim can be found. However, in Edwards, the supreme court held that a petition need only state the "gist" of a constitutional claim. Edwards, 197 Ill. 2d at 244. The court held that the Lemons "sufficient facts" test is "at odds with this court's holdings and should be avoided." Edwards, 197 Ill. 2d at 244. The State does not contend that the petition fails to state the gist of a constitutional claim.
The State also appears to argue that defendant did not file an affidavit in support of his allegation that he asked his lawyer to appeal. See 725 ILCS 5/122--2 (West 2000). Other than the overruled appellate court decision in Lemons, the State cites no authority for its contention that the absence of an affidavit is fatal to a post-conviction petition. In People v. Boclair, 202 Ill. 2d 89, 99-100 (2002), the court stated that at the first stage of post-conviction review:
"The circuit court is required to make an independent assessment in the summary review stage as to whether the allegations in the petition, liberally construed and taken as true, set forth a constitutional claim for relief. The court is further foreclosed from engaging in any fact finding or any review of matters ...