from Circuit Court of Sangamon County. No. 09CF508. Honorable
John W. Belz, Judge Presiding.
J. Pelletier, Jacqueline L. Bullard, and Janieen R. Tarrance
(argued), all of State Appellate Defender's Office, of
Springfield, for appellant.
Milhiser, State's Attorney, of Springfield (Patrick
Delfino, David J. Robinson, and Linda Susan McClain (argued),
all of State's Attorneys Appellate Prosecutor's
Office, of counsel), for the People.
Turner and Steigmann concurred in the judgment and opinion.
Ill.Dec. 448] APPLETON, JUSTICE.
[¶1] Defendant, Darnell M. Smith, who is
serving a sentence of 18 years' imprisonment for burglary
(720 ILCS 5/19-1(a) (West 2008)), appeals the second-stage
dismissal of his pro se petition for postconviction
relief. See People v. Harris, 2013 IL App. (1st)
111351, ¶ ¶ 46-47, 998 N.E.2d 618, 376 Ill.Dec. 76
(describing the three stages of a postconviction proceeding).
Before granting the State's motion for dismissal, the
trial court granted appointed counsel's motion to
withdraw from representing defendant in this postconviction
proceeding. Defendant appeals, arguing that the motion to
withdraw failed to explain why each of the claims in his
pro se petition was frivolous or patently without
merit, as the supreme court now requires such a motion to do.
See People v. Kuehner, 2015 IL 117695, ¶ 21,
392 Ill.Dec. 347, 32 N.E.3d 655.
[¶2] We do not even reach that argument.
Assessing the sufficiency of the motion to withdraw would be
premature, considering that postconviction counsel never
filed a certificate pursuant to Illinois Supreme Court Rule
651(c) (eff. Feb. 6, 2013) and the record fails to clearly
show counsel's fulfillment of all of his responsibilities
under that rule. Therefore, we reverse the trial court's
judgment, and we remand this case for further proceedings.
A. The Pro Se Petition
[¶5] In his pro se petition, which
he filed on October 3, 2011, defendant made essentially four
claims, each of which allegedly described a " clear
violat[ion]" of his " constitutional rights."
[¶6] The first claim was that Karen Tharp
served as the prosecutor in this case [401 Ill.Dec. 449] even
while, in a civil case pending in the United States
District Court for the Central District of Illinois, Smith v.
Tharp, No. 20-CV-3011 HAB-CHE, defendant was suing her
for $100,000 on the ground that she had violated his
constitutional rights in People v. Tharp, Sangamon County
case No. 2005-CF-2083.
[¶7] The second claim was that, on September
22, 2011, during the jury's deliberations in this case,
the trial court allowed the prosecutor, Tharp, to interact
with the jurors, as evidenced by the fact that when defendant
and his defense counsel, Brian T. Otwell, were called back
into the courtroom to hear the jury's verdict, Judge Belz
and Tharp entered the courtroom from behind the judge's
chambers and, following closely on their heels, were the
bailiffs, Bob Kaehler and Mike Ground, and the "
[¶8] The third claim was that Judge Belz
should have granted defendant's motion to remove Tharp
from her position as prosecutor because she previously "
made racial statements by saying [to defendant:] 'If I
get a chance to prosecute you again, I will win at all
[¶9] The fourth claim was that Judge Belz
should have recused himself, given the appearance of
partiality he had created by refusing to remove Tharp and by
allowing her to tamper with the jury.
[¶10]B. The State's Motion To Dismiss thePro SePe ...