Appeal from the Circuit Court of Du Page County. No. 98-CF-1856 Honorable George J. Bakalis, Judge, Presiding.
The opinion of the court was delivered by: Justice Hutchinson
A jury convicted defendant, David Teran, of first-degree murder (720 ILCS 5/9--1(a)(1) (West 1998)), rejecting his insanity defense under section 6--2(a) of the Criminal Code of 1961 (720 ILCS 5/6--2(a) (West 1998)). On direct appeal, defendant argued that section 6--2(a) was unconstitutional. We rejected that argument and affirmed. People v. Teran, 353 Ill. App. 3d 720 (2004). In August 2005, defendant filed a post-conviction petition, generally asserting that (1) the State's opening statement was improper; (2) his statement to the police was invalid because he had invoked his Miranda rights; (3) the State covered up evidence of his innocence; (4) the trial court erred in refusing his requests to dismiss his attorneys, change venue, and raise a defense other than insanity; (5) his confession was involuntary; (6) his attorneys were ineffective for providing no defense, failing to make objections, and erring in closing argument; and (7) he was denied a speedy trial. To his petition, defendant attached a sworn verification per section 122--1(b) of the Post- Conviction Hearing Act (the Act) (725 ILCS 5/122--1(b) (West 2004)), but he did not attach--or explicitly explain the absence of--any "affidavits, records, or other evidence supporting [his] allegations" per section 122--2 (725 ILCS 5/122--2 (West 2004)). In September 2005, the trial court timely dismissed the petition summarily. See 725 ILCS 5/122--2.1(a)(2) (West 2004). Defendant timely appealed, and the trial court appointed the Office of the State Appellate Defender.
Pursuant to Pennsylvania v. Finley, 481 U.S. 551, 95 L.Ed. 2d 539, 107 S.Ct. 1990 (1987), appellate counsel moved to withdraw. Under Finley, we may grant such a motion only if there is "no non-frivolous issue for appeal." Penson v. Ohio, 488 U.S. 75, 80, 102 L.Ed. 2d 300, 309, 109 S.Ct. 346, 350 (1988) (applying Finley's direct-appeal relative, Anders v. California, 386 U.S. 738, 18 L.Ed. 2d 493, 87 S.Ct. 1396 (1967)); see Wilkinson v. Cowan, 231 F.3d 347, 351 (7th Cir. 2000) (applying Finley). Of course, a non-frivolous issue is not necessarily one that will be successful; it is merely an issue with arguable merit. See Wilkinson, 231 F.3d at 351.
In the motion to withdraw, although appellate counsel did not explicitly address all of defendant's seven claims raised in the post-conviction petition, his efforts sufficed to enable us to conclude that nearly all of the claims were subject to summary dismissal because either (1) they were based on matters of record, could have been raised on direct appeal, and thus were forfeited, and defendant did not avert the forfeiture by claiming ineffective assistance of counsel on direct appeal (see People v. Harris, 224 Ill. 2d 115, 124-25 (2007) (issues that could have been raised on direct appeal are forfeited); People v. Blair, 215 Ill. 2d 427, 445 (2005) (forfeiture is basis for summary dismissal); People v. Newbolds, 364 Ill. App. 3d 672, 677 (2006) (claim of ineffective appellate counsel averts forfeiture)); or (2) they were based on matters outside the record--and thus could not have been raised on direct appeal--but defendant did not attach those matters to his petition or explain their absence (see 725 ILCS 5/122--2 (West 2004); People v. Collins, 202 Ill. 2d 59, 66 (2002)).
In treating defendant's second claim, however, appellate counsel observed that defendant alleged that he told his attorneys that he had invoked his Miranda rights but that they "refused to [i]nvestigate." In his motion to withdraw, appellate counsel stated:
"This claim would survive first-stage review under different circumstances. [Citation.] However, the claim in this case is not supported by any evidence, such as an affidavit from the defendant. [Citation.] Under Collins, a claim that is based on private conversations between the defendant and his trial counsel need not be supported by an affidavit from counsel, but must be supported by an affidavit from the defendant. [Collins,] 202 Ill. 2d at 66-68. Contrast People v. Hall, 217 Ill. 2d 324, 332*** (2005) (virtually identical post-conviction claim to that in Collins survives first-stage review because it is supported by the defendant's affidavit)."
In Hall, a case in which the defendant attached his own affidavit to support his claims, our supreme court considered whether the affidavit satisfied the requirements of section 122--2. The court stated:
"We recognize this court has stated that the purpose of section 122--2 is to show a defendant's post-conviction allegations are capable of objective or independent corroboration. Collins, 202 Ill. 2d at 67. Failure to attach independent corroborating documentation or explain its absence may, nonetheless, be excused where the petition contains facts sufficient to infer that the only affidavit the defendant could have furnished, other than his own sworn statement, was that of his attorney." (Emphases added.) Hall, 217 Ill. 2d at 333.
The court determined that, in light of the allegations in the petition and the defendant's affidavit, such an inference did arise, as the defendant's claim was based on "a private consultation between [the] defendant and his attorney." Hall, 217 Ill. 2d at 333.
Thus, the Hall court did not determine that the defendant's affidavit provided objective or independent corroboration of his claim; indeed, common sense dictates that a defendant's own affidavit is not at all objective or independent. What the Hall court determined was that, in light of the allegations in the defendant's affidavit (and the petition), his failure to attach such objective or independent corroboration was excused.
In this case, although defendant did not submit his own affidavit (again beyond the sworn verification), his petition alone established that his second claim was likewise based on a private consultation between defendant and his attorneys. Thus, defendant's affidavit was not necessary for that purpose, and, because no affidavit of defendant's would have provided objective or independent corroboration per section 122--2, defendant's affidavit was not necessary for that purpose either. On the contrary, due to the basis for the claim, defendant's failure to provide such corroboration was excused. Or so it could be argued.
On those grounds, after we gave defendant 30 days to respond, which he did, we denied counsel's motion to withdraw. Referring counsel to the above passage in Hall, we ordered him to "file a brief addressing whether the defendant's post-conviction petition was meritorious to the extent that it relied on private conversations between the defendant and his attorneys, despite his failure to attach his own affidavit."
Appellate counsel did not file a brief as directed by our order. Instead, he filed a motion requesting us to reconsider our order denying his motion to withdraw. Our research has failed to uncover any Illinois case considering a request for reconsideration of the denial of a motion to withdraw under Anders or Finley, and we have found only a handful of unreported cases nationwide where such a request was addressed by a reviewing court. Nonetheless, we are aware of no authority that prevents counsel from requesting us to reconsider the order. This court has the inherent authority to vacate or set aside its own orders (People v. Nichols, 143 Ill. App. 3d 673, 676 (1986); Illinois State Chamber of Commerce v. Pollution Control Board, 67 Ill. App. 3d 839, 843 (1978)), and a party may certainly request this court to exercise such authority, by making an application for such relief through a motion filed in compliance with the requirements of Supreme Court Rule 361 (210 Ill. 2d R. 361). See People v. Pertz, 242 Ill. App. 3d 864, 905 (1993) (noting that motions made in the reviewing court are open for reconsideration). The purpose of a motion to reconsider is to bring to the court's attention (1) newly discovered evidence that was not available at the time of the first hearing, (2) changes in the ...