Appeal from Circuit Court of DeWitt County No. 07CF48 Honorable Chris E. Freese, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
JUSTICE APPLETON delivered the judgment of the court, with opinion.
Justices Steigmann and Cook concurred in the judgment and opinion.
¶ 1 Defendant, Christopher Shortridge, appeals from the circuit court's dismissal of his post-conviction petition without an evidentiary hearing. At the second stage of the proceedings, defendant's appointed counsel confessed the State's motion to dismiss. Defendant filed a pro se motion to discharge counsel and a pro se motion to reconsider the dismissal. The court denied defendant's motion to discharge and ordered stricken his pro se motion to reconsider since he was represented by counsel. Finding error in these proceedings, we reverse and remand.
¶ 3 In June 2007, a grand jury indicted defendant on four counts of criminal drug conspiracy, a Class X felony (720 ILCS 570/405.1 (West 2006)), for delivering cocaine to various individuals with Devon Thomas (the most serious count involved more than 900 grams); three counts of unlawful possession of a controlled substance with intent to deliver, a Class X felony (720 ILCS 570/401(a)(2)(A), (a)(2)(B), (a)(2)(C) (West 2006)); and one count of conspiracy to commit controlled substance trafficking, a Class X felony (720 ILCS 5/8-2 (West 2006)). In August 2007, defendant pleaded guilty to one count of criminal drug conspiracy in exchange for the State's agreement to recommend a sentence of no more than 17 years in prison and dismiss the remaining charges. Thereafter, the trial court sentenced defendant to 17 years in accordance with the State's recommended maximum sentence. Defendant did not appeal.
¶ 4 In February 2009, defendant filed a pro se post-conviction petition, claiming his trial counsel was ineffective for failing to "investigate, prepare, or present facts, and evidence in a [sic] adversarial process." Defendant also alleged his due-process rights were violated when the prosecutor knowingly presented false testimony to the grand jury. Defendant attached his own affidavit, denying he was involved in a drug conspiracy despite his guilty plea. The circuit court appointed counsel to represent defendant. Counsel filed a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984), but did not file an amended petition or any further affidavits.
¶ 5 In January 2010, the State filed a motion to dismiss defendant's petition, claiming (1) defendant had been fully and completely admonished prior to entering his guilty plea, (2) he had advised the court that he had been promised nothing in exchange for the plea, (3) he indicated to the court that he had not been threatened in any manner, and (4) the plea was supported by a sufficient factual basis read into the record. The State asserted that defendant's allegations were contradicted by the record.
¶ 6 In March 2010, the circuit court conducted a hearing wherein defendant's counsel appeared, but the State did not. According to counsel, he and the prosecutor agreed that counsel would appear ex parte in order to "reset it." However, counsel determined that, "at this point," he was "going to confess the motion to dismiss." The court entered an order dismissing defendant's post-conviction petition.
¶ 7 In April 2010, defendant filed a pro se motion "for withdrawal of court[-]appointed counsel" and a pro se motion to reconsider the circuit court's order dismissing his post-conviction petition. The court ruled defendant's motion for "withdrawal" was moot, as there were no pending matters, and his motion to reconsider was stricken for not being filed by counsel.
¶ 8 On June 23, 2010, at defendant's counsel's insistence, the circuit court conducted a hearing with all parties present, including defendant. The court invited comments from the prosecutor and defendant's counsel, but not defendant. The court entered the following docket entry:
"AAG for the People. Kevin Hammer with def[endant] who is in custody of IL DOC. M[otion] to w[ith]draw app[ointed] counsel on file. Set by att[orney] Hammer on request of def[endant]. Statements heard on pro se m[otion] to w[ith]draw court app[ointed] counsel. Def[endant] does not have right to choose his court ap[pointed] counsel; there has been no reason given why Mr. Hammer should be withdrawn. If def[endant] wishes to hire his own counsel to rep[resent] him, he has that right; court will not allow def[endant] to proceed pro se in this case; court has already app[ointed] Hammer and cause has been heard and pro se post-conviction was filed by ...