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People v. Heard

Court of Appeals of Illinois, Fourth District

March 10, 2014

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
KEVIN T. HEARD, Defendant-Appellant

Appeal from Circuit Court of Sangamon County. No. 02CF665. Honorable Leo J. Zappa, Judge Presiding.

SYLLABUS

The dismissal of defendant's postconviction petition at the second stage of the proceedings was upheld over defendant's contention that the cause should be remanded to allow defendant's appointed counsel to comply with Supreme Court Rule 651 prior to withdrawing, since the record showed defendant filed a pro se postconviction petition alleging ineffective assistance of his trial counsel, the trial court appointed counsel to represent defendant in the postconviction proceedings, defendant then filed a motion to recuse his appointed counsel based on complaints against her, the trial court allowed appointed postconviction counsel to withdraw at defendant's request and then granted the State's motion to dismiss the petition, and under the circumstances, appointed postconviction counsel's performance was not challenged and her withdrawal at defendant's request left her with no duty to comply with Rule 651.

PRESIDING JUSTICE APPLETON delivered the judgment of the court, with opinion. Justices Pope and Harris concurred in the judgment and opinion.

OPINION

APPLETON, PRESIDING JUSTICE.

[¶1] The circuit court dismissed defendant's petition filed pursuant to the Post-Conviction

Page 448

Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2010)) at the second stage of the proceedings. Defendant appeals, arguing the case must be remanded for the purpose of compelling appointed counsel to comply with the mandates of Illinois Supreme Court Rule 651 (eff. Dec. 1, 1984) prior to her withdrawal as counsel. However, we find, because counsel withdrew at defendant's request and not due to counsel's inability to form a cognizable argument under the Act, we find remand is not necessary.

[¶2] I. BACKGROUND

[¶3] In January 2005, defendant pleaded guilty to criminal sexual assault as part of a fully negotiated plea agreement. The trial court sentenced him to 10 years in prison in accordance with the terms of the plea. Defendant did not file a direct appeal.

[¶4] In March 2012, defendant filed a pro se postconviction petition, claiming his trial attorney rendered ineffective assistance of counsel by lying and misrepresenting certain facts to the trial court. The circuit court appointed Sara Mayo to represent defendant in the postconviction proceedings.

[¶5] In April 2012, defendant filed a pro se " motion to recuse court appointed counsel," claiming he " has complaints against [Mayo] that are both civil and criminal in nature that are an ongoing investigation. And as a result would cause prejudice and a conflict of interest." Thereafter, the State filed a motion to dismiss defendant's postconviction petition.

[¶6] In June 2012, the circuit court conducted a hearing on defendant's " motion to recuse court-appointed counsel." Attorney Mayo orally moved to withdraw. The court asked Mayo if it was " at [defendant's] request" and Mayo applied in the affirmative. The prosecutor noted defendant had requested to proceed pro se and, therefore, he had no objection to Mayo's motion. The court allowed Mayo to withdraw.

[¶7] Defendant proceeded pro se, and in August 2012, the trial court granted the State's motion to dismiss. ...


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