from the Circuit Court of the 21st Judicial Circuit, Kankakee
County, Illinois, Circuit No. 05-CF-176 Honorable Clark E.
Erickson, Judge, Presiding.
JUSTICE O'BRIEN delivered the judgment of the court, with
opinion. Justices Lytton and McDade concurred in the judgment
1 Defendant, Christ E. Walker, appeals from the dismissal of
his petition for relief from judgment filed pursuant to
section 2-1401 of the Code of Civil Procedure (Code) (735
ILCS 5/2-1401 (West 2014)). Defendant contends that his
appointed counsel provided inadequate assistance. We reverse
and remand for further proceedings.
3 A jury found defendant guilty of two counts of first degree
murder (720 ILCS 5/9- 1(a)(1), (2) (West 2004)), one count of
attempted murder of a peace officer (720 ILCS 5/8-4(a),
9-1(b)(1) (West 2004)), two counts of aggravated discharge of
a firearm (720 ILCS 5/24- 1.2(a)(2), (3) (West 2004)), one
count of aggravated assault (720 ILCS 5/12-2(a)(6) (West
2004)), and one count of aggravated unlawful use of a weapon
(AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2004)).
4 On April 4, 2006, the trial court merged the appropriate
counts and sentenced defendant to the following: 49
years' imprisonment for first degree murder, 20
years' imprisonment for attempted murder of a peace
officer; 10 years' imprisonment for aggravated discharge
of a firearm, and 5 years' imprisonment for AUUW.
Defendant's sentence for first degree murder was ordered
to run consecutive to the remaining sentences, resulting in
an aggregate sentence of 69 years' imprisonment.
5 On direct appeal, this court affirmed defendant's
convictions and sentences. People v.
Walker, 386 Ill.App.3d 1025 (2008). Thereafter,
defendant filed several additional but unsuccessful
collateral appeals. See People v. Walker, No.
3-10-0077 (2010) (unpublished order under Supreme Court Rule
23); People v. Walker, No. 3-11-0100 (2011)
(unpublished summary order under Supreme Court Rule 23(c));
People v. Walker, No. 3-11-0642 (2013) (unpublished
summary order under Supreme Court Rule 23(c)).
6 Next, defendant appealed the denial of his second motion
for leave to file a successive postconviction petition
(denied November 14, 2013). On appeal, this court ordered the
trial court to vacate defendant's AUUW conviction and
sentence. People v. Walker, No. 3-14-0022 (2016)
(unpublished summary order under Supreme Court Rule 23(c)).
7 On January 23, 2015, defendant filed a pro se
section 2-1401 petition, which is the subject of this appeal.
The petition alleged that the firearm enhancement to his
first degree murder sentence was void because it was not
presented to the jury. The petition also alleged that the
evidence was insufficient to prove his guilt for the offense
of attempted murder of a peace officer. The petition did not
include any allegations to explain why defendant filed the
petition nearly 10 years after his conviction.
8 At a hearing on the petition, defendant requested counsel
to represent him on his section 2-1401 petition. The trial
court, in an exercise of its discretion, appointed counsel to
9 At the next hearing, appointed counsel informed the court
that he had reviewed defendant's petition, met with
defendant, and discussed the petition with defendant. Counsel
noted that, initially, it was unclear whether the public
defender could be appointed to represent an indigent
defendant in a section 2-1401 proceeding, however counsel
told the court,
"Since then, I was appointed by [the public
defender's office] and then I went out to the jail to
discuss the options with [defendant] and I have reviewed it,
the petition with him. There's really no procedural
guideline here like under post-conviction law, the State
would either be given a chance to answer or to file a motion
to dismiss, but this is a 1401 and there's really no-no
10 The State then asked appointed counsel if he was adopting
defendant's pro se ...