Appeal from the Circuit Court of Lake County. No. 00-CF-2724. Honorable Christopher C. Starck, Judge, Presiding.
The opinion of the court was delivered by: Justice Byrne
Defendant, Carl D. Young, petitioned for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2002)), alleging that (1) his fully negotiated plea of guilty to criminal drug conspiracy (720 ILCS 570/405.1(a) (West 2000)) was involuntary; and (2) the trial court erred in summarily denying his pro se motion to withdraw his plea. On the State's motion, the trial court dismissed the petition as untimely and lacking merit. Defendant appeals, arguing that the petition was timely; that he has the right to an evidentiary hearing on his petition; and that his post-conviction counsel did not provide him with the reasonable assistance that the Act requires (see People v. Lee, 251 Ill. App. 3d 63, 64-65 (1993)). We reverse and remand. On November 22, 2000, defendant was indicted on one count each of criminal drug conspiracy, unlawful possession of a controlled substance with the intent to deliver (720 ILCS 570/401(a)(2)(B) (West 2000)), and unlawful possession of a controlled substance (720 ILCS 570/402(a)(2)(B) (West 2000)). Because the second offense was a Class X felony, punishable by 12 to 50 years in prison, the conspiracy was also a Class X felony with the same sentencing range (see see 720 ILCS 570/401(a), 405.1(c) (West 2000)).
 On January 24, 2001, after a Rule 402(d) conference (see 177 Ill. 2d R. 402(d)), defendant's attorney, Robert Ritacca, stated that the parties were "far apart" on a plea agreement. Judge Starck and the attorneys continued the conference. The judge then told defendant that the State was willing to recommend a 10-year prison sentence if defendant pleaded guilty to criminal drug conspiracy. He added that Ritacca thought that defendant could "beat" the charge and had asked the State to recommend 8 years' imprisonment, but the State had refused. Defendant said, "I will go to trial."
On January 31, 2001, the parties appeared before Judge Rossetti. The judge recounted that defendant, the attorneys, and she had discussed a possible agreement under which defendant would plead guilty to Class X criminal drug conspiracy and the State would recommend a 10-year prison sentence. Defendant told the court that he had discussed this proposal with Ritacca. Judge Rossetti next explained that the State had reindicted defendant, reducing the charge of possession with intent to deliver and the conspiracy charge from "Super X" offenses to ordinary Class X offenses. Defendant pleaded not guilty to the new charges.
On February 2, 2001, the parties again appeared in court. Ritacca told Judge Rossetti that, "at this particular time," defendant did not want to plead guilty. The court continued the cause until February 5, 2001, for trial. On February 5, 2001, the parties appeared before Judge Starck. The following colloquy occurred:
"MR. RITACCA: I had the opportunity to speak to Mr. Young concerning what was talked about in the 402 conference. I told Mr. Young that based upon a plea *** the State could or would make this a Class 1, but the time would be increased, but with the increase of time regardless of that [sic] he would still be eligible for everything at the Department of Corrections, that being a period of work release and a period of less actual time that he would be serving. Mr. Young has told me that that's not acceptable. Is that correct, Carl?
THE DEFENDANT: You told me ten years.
MR. RITACCA: Judge, other than that--can we have some time? Can I come back at 1:30?
After some proceedings off the record, Judge Starck admonished defendant in accordance with Supreme Court Rule 402(a) (177 Ill. 2d R. 402(a)). Defendant stated that he had not been promised anything or threatened with anything other than what was in the plea agreement itself and that he had discussed the case with Ritacca. After Judge Starck heard the factual basis for the plea, he asked defendant if he still wanted to plead guilty. Defendant said yes. Judge Starck accepted the plea and, per the agreement, sentenced defendant to 12 years' imprisonment. The judge also admonished defendant about his appeal rights (see 188 Ill. 2d R. 605(c)).
On February 26, 2001, defendant, now in prison, filed a pro se "Motion to Withdraw Plea of Guilty" alleging in part that Ritacca had pressured him into pleading guilty. On February 27, 2001, the trial court denied the motion. There is nothing in the record to show that defendant was notified of the ruling. He did not file a notice of appeal. On April 10, 2001, still proceeding pro se, he refiled his motion, which the trial court again denied. During April, May, and August 2002, defendant filed several pro se motions that were either abandoned or denied.
On October 7, 2002, defendant filed a pro se petition under the Act, alleging that, after he declined a plea agreement that would have resulted in a 10-year prison sentence, Ritacca induced him to enter into an agreement that resulted in a 12-year prison sentence. According to defendant, he acceded to the agreement "[b]ased on the promise of being released from the Department of Corrections sooner." The trial court appointed counsel, who filed an amended petition asserting that (1) the trial court denied defendant his right to counsel by refusing to provide him with an attorney after he filed his pro se motion to withdraw his guilty plea; and (2) Ritacca was ineffective in advising defendant "that it would be to [defendant's] advantage to plead guilty and accept a 12 year [sic] *** sentence on a reduced charge rather that [sic] a 10 year [sic] sentence on a Class X offense." The amended petition attached no affidavits.
The State moved to dismiss the petition, arguing that it was barred by the two-year statute of limitations of section 2--1401 of the Code of Civil Procedure (735 ILCS 5/2--1401 (West 2002)) (see 735 ILCS 5/2-- 1401(c) (West 2002)) and that the record did not support its claims. The trial court granted the motion, holding that the petition was time-barred; that it was "not supported adequately by affidavit"; and that it lacked merit. Defendant timely appealed.
Defendant contends that his petition was timely and that it presented substantial claims that (1) his guilty plea was induced by Ritacca's ineffectiveness and (2) he was denied the right to counsel after he moved pro se to withdraw his plea. He also asserts that his post-conviction counsel did not provide ...