                                                                       Digitally signed by
                                                                       Reporter of Decisions
                                                                       Reason: I attest to the
                       Illinois Official Reports                       accuracy and integrity
                                                                       of this document
                                                                       Date: 2018.03.15
                              Appellate Court                          12:54:50 -05'00'




                  People v. Walker, 2018 IL App (3d) 150527



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           CHRIST E. WALKER, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-15-0527



Filed             January 4, 2018



Decision Under    Appeal from the Circuit Court of Kankakee County, No. 05-CF-176;
Review            the Hon. Clark E. Erickson, Judge, presiding.



Judgment          Reversed and remanded with directions.


Counsel on        Michael J. Pelletier, Peter A. Carusona, and Bryon Kohut, of State
Appeal            Appellate Defender’s Office, of Ottawa, for appellant.

                  Jim Rowe, State’s Attorney, of Kankakee (Patrick Delfino, Lawrence
                  M. Bauer, and Mark A. Austill, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE O’BRIEN delivered the judgment of the court, with
                  opinion.
                  Justices Lytton and McDade concurred in the judgment and opinion.
                                              OPINION

¶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.

¶2                                               FACTS
¶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 represent
     defendant.
¶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,



                                                 -2-
                “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 standard here.”
¶ 10        The State then asked appointed counsel if he was adopting defendant’s pro se petition.
       Appointed counsel responded,
                “[A]s to whether I’m adopting the 1401, there’s really no question of whether I can
                adopt it or not. My—the duty I see under the case law that I’ve read is that I just have to
                present his claims in court basically. So it’s—I’m—I’m basically going to defend it.”
¶ 11        The parties agreed to continue the matter for a hearing. At the conclusion, the trial court
       noted that the instant case “really comes down to reviewing the transcript.” Appointed counsel
       replied, “Actually, Judge, I—I don’t—I mean unlike [Illinois Supreme Court Rule 651(c) (eff.
       Feb. 6, 2013)], which specifically governs post convictions, I don’t even think that that needs
       to be done in this situation.”
¶ 12        The court replied, “[M]aybe it’s not required to be done, but it seems like I mean somebody
       would probably want to review the transcripts. Okay.” The court concluded, “You don’t have
       to. I mean I guess you can make your arguments and I’ll review them, but okay.”
¶ 13        When the parties returned to court for the next hearing, the State asked for leave to file a
       motion to dismiss defendant’s petition. The court allowed the request and provided appointed
       counsel time to file a response to the State’s motion. Before the hearing concluded, appointed
       counsel told defendant that he would review the State’s motion, meet with defendant to discuss
       the motion, and discuss how to respond to the motion.
¶ 14        Next, the State filed its motion to dismiss. In the motion, the State argued that the petition
       was untimely. In addition, the State argued that the petition failed to allege any of the
       exceptions to excuse the untimely filing. Specifically, the State asserted,
                “The judgment petitioner attacks in his 2-1401 petition was entered in 2006. There is
                no claim either in the body of the petitioner’s filing, or in any affidavit, that the
                petitioner is under a legal disability or duress, or the grounds for relief are fraudulently
                concealed. Thus the petitioner’s petition must be dismissed as untimely.”
¶ 15        Thereafter, appointed counsel filed a response to the State’s motion to dismiss. The
       response acknowledged that the petition was untimely. However, the response denied the
       allegations made in the State’s motion to dismiss that there was no basis alleged to excuse the
       untimely filing. The response did not expressly allege any excuse for the untimely filing.
¶ 16        The trial court then held a hearing on the State’s motion to dismiss. At the hearing, the
       State repeated its argument that the petition failed to allege that defendant was under a legal
       disability or duress or that the grounds for relief were fraudulently concealed. The State
       asserted that the petition was untimely and, therefore, should be dismissed.
¶ 17        In response, appointed counsel argued that the timeliness of the petition was factual in
       nature. According to counsel, therefore, it was inappropriate to raise the issue in a proceeding
       that was simply a matter of sufficiency of law. Appointed counsel asserted that “in the interest
       of justice,” defendant should be allowed “to testify as to the conditions of his cell and the
       conditions of his home institution at Menard and his inability to gain access to the investigative
       tools and materials necessary” to assert fraudulent concealment. According to appointed

                                                     -3-
       counsel, without any “specific powers of investigation,” his ability to claim fraudulent
       concealment was limited. Counsel, therefore, asked the court to deny the State’s motion to
       dismiss and set the matter for an evidentiary hearing.
¶ 18       In reply, the State asserted that appointed counsel’s argument was not a factual argument
       but merely a legal argument. The State noted that no exception to the time limitations period
       had been pled in defendant’s petition, and the court had no choice but to dismiss the petition.
       The trial court took the matter under advisement.
¶ 19       While under advisement, defendant filed a pro se response to the State’s motion to dismiss.
       In the response, defendant asserted that the two-year limitations period did not apply because
       he was challenging a void order. Defendant further asserted that he suffered from severe
       depression and was placed in the mental health unit in Menard Correctional Center shortly
       after his arrival in 2006. According to defendant, he remained in solitary confinement for four
       years while in the mental health unit. In 2014, defendant was removed from the mental health
       unit and placed in general population. Defendant further asserted that he was not given law
       books to use in filing his petition because they were not permitted to be removed from the law
       library.
¶ 20       On July 20, 2015, the trial court held a hearing in which it allowed the State’s motion to
       dismiss because defendant’s petition failed to make any showing of an excuse for its
       untimeliness. After the court announced its decision, appointed counsel stated that he was not
       adopting defendant’s pro se response to the State’s motion to dismiss. Counsel stated that he
       had read defendant’s response, and “there was nothing that I find I can add at this time to the
       matter.” Defendant filed a notice of appeal, and new counsel was appointed to represent him on
       appeal.
¶ 21       While on appeal, newly appointed counsel filed a motion to withdraw pursuant to
       Pennsylvania v. Finley, 481 U.S. 551 (1987). We denied the motion, and this appeal follows.

¶ 22                                            ANALYSIS
¶ 23       On appeal, defendant contends that his court-appointed counsel for his section 2-1401
       petition failed to provide adequate assistance. Specifically, defendant argues that counsel was
       inadequate for failing to amend his petition to overcome the procedural bar of timeliness.
       Because appointed counsel proceeded under the incorrect belief that he was not required to
       review the record or make any amendments to defendant’s pro se petition, we find counsel
       provided inadequate assistance.
¶ 24       Before discussing the adequacy of appointed counsel’s assistance, we first address the
       level of assistance required of counsel in a section 2-1401 proceeding. A section 2-1401
       petition is brought under the Code. 735 ILCS 5/2-1401 (West 2008). Unlike the provisions of
       the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)), section
       2-1401 does not provide for the appointment of counsel. Compare 725 ILCS 5/122-4 (West
       2008), with 735 ILCS 5/2-1401 (West 2008). Further, while the Act provides a statutory right
       to a reasonable level of assistance, section 2-1401 is silent on the requisite level of assistance
       guaranteed to a section 2-1401 petitioner. Although the supreme court has not specifically
       defined the required level of assistance appointed counsel must provide to a section 2-1401
       petitioner, the decisions in Tedder v. Fairman, 92 Ill. 2d 216 (1982), and People v. Pinkonsly,
       207 Ill. 2d 555 (2003), are instructive.


                                                   -4-
¶ 25        In Tedder, 92 Ill. 2d at 226, the supreme court held that although indigent criminal
       defendants may receive appointed counsel to represent them in civil actions, appointed counsel
       is not required in such civil proceedings. The Tedder court stated that the level of assistance
       required for appointed counsel in such instances is to exercise due diligence. Id. at 227. The
       court did not hold that appointed counsel must provide reasonable assistance analogous to that
       of counsel appointed in postconviction petition proceedings. Additionally, the court did not
       say that appointed counsel in civil proceedings must satisfy the requirements of Illinois
       Supreme Court Rule 651(c) (eff. Feb. 6, 2013). The court in Tedder ultimately concluded that
       the appointed attorneys were required to help the defendants amend their petitions because the
       trial court had found that their petitions were inadequate and had appointed counsel to address
       the deficient petitions. Tedder, 92 Ill. 2d at 226.
¶ 26        Subsequently, in Pinkonsly, defendant argued that appointed counsel in section 2-1401
       proceedings provided ineffective assistance under Strickland v. Washington, 466 U.S. 668
       (1984). Pinkonsly, 207 Ill. 2d at 560-68. Defendant contended that counsel was ineffective by
       failing to raise a specific lesser-included offense argument. Id. at 567. The Pinkonsly court first
       held that it was inappropriate to hold appointed counsel to the Strickland standard. Id. at 568.
       In reaching this conclusion, the supreme court noted:
                    “The defendant here is not a postconviction petitioner, but instead a section 2-1401
                petitioner. Section 2-1401 does not specify any level of assistance, and the appellate
                court erroneously applied the Strickland standard to the defendant’s claim that his
                section 2-1401 attorney was ineffective.” Id.
¶ 27        The Pinkonsly court went on to say,
                “[a]ssuming that the defendant was entitled to the same level of assistance on his
                section 2-1401 petition as on a postconviction petition, the defendant did not receive
                unreasonable assistance. The defendant’s attorney was not unreasonable for failing to
                raise a putative legal error in a proceeding where only fact errors are cognizable.” Id.
       Notably, however, the Pinkonsly court did not state that appointed counsel in a section 2-1401
       proceeding must satisfy the reasonable assistance requirements reflected in Illinois Supreme
       Court Rule 651(c) (eff. Feb. 6, 2013). That is because the question presented was whether the
       Strickland standard applied in the section 2-1401 context. The court was not asked to decide
       whether the reasonable assistance standard applied to attorneys appointed in section 2-1401
       proceedings or in any other civil proceedings. Thus, it is arguably dicta that appointed counsel
       in a section 2-1401 proceeding is required to satisfy the reasonable assistance standard.
       Therefore, the question remains open as to whether appointed counsel must satisfy the due
       diligence standard under Tedder or the reasonable assistance standard under the dicta from
       Pinkonsly.
¶ 28        Following Pinkonsly, this court issued the opinion in People v. Welch, 392 Ill. App. 3d 948
       (2009), which—like the instant case—involved the adequacy of appointed counsel’s
       representation in a section 2-1401 proceeding. In Welch, the parties did not raise an issue as to
       the level of assistance to which a section 2-1401 petition is entitled. Instead, citing Pinkonsly
       this court “assume[d] that a section 2-1401 petitioner is entitled to the same level of assistance
       as a postconviction petitioner.” Id. at 952.
¶ 29        Although our consideration of the above cases would persuade us to find that a section
       2-1401 petitioner who is appointed counsel is entitled to reasonable assistance, we need not
       reach this issue. As we will discuss below, we find that appointed counsel failed to provide

                                                    -5-
       adequate assistance under either standard (reasonable assistance or due diligence).

¶ 30                                      I. Reasonable Assistance
¶ 31        Here, appointed counsel operated on the belief that his only obligation to defendant was to
       present the specific claims found in defendant’s pro se petition. While this statement is true
       (People v. Pendleton, 223 Ill. 2d 458, 476 (2006) (appointed postconviction counsel is not
       obligated to raise new or novel claims outside defendant’s petition)), the reasonable assistance
       standard requires appointed counsel to make any amendments necessary for an adequate
       presentation of the issues found in the petition. See Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013);
       People v. Perkins, 229 Ill. 2d 34, 42 (2007). Stated another way, counsel does not have an
       obligation to raise new or novel claims, but he does have an obligation to ensure that any
       existing claims are properly presented to the court. In the postconviction context, this requires
       counsel to allege available facts to overcome the procedural bar of timeliness. See Perkins, 229
       Ill. 2d at 44.
¶ 32        In this case, defendant filed his section 2-1401 petition beyond the two-year limitations
       period. Where a section 2-1401 petition is filed beyond two years after the judgment was
       entered, it cannot be considered. People v. Caballero, 179 Ill. 2d 205, 210 (1997). An untimely
       filed section 2-1401 petition, however, may be considered if the record conclusively shows
       that the person seeking relief is under legal disability or duress, the grounds for relief are
       fraudulently concealed, or the order is void. Id. at 211; People v. Thompson, 2015 IL 118151,
       ¶ 31. Defendant’s pro se petition also failed to allege any of the required basis for excusing an
       untimely filed petition. Therefore, on its face, defendant’s pro se petition was deficient.
¶ 33        Relying on the above deficiency, the State moved to dismiss defendant’s pro se petition
       because defendant failed to plead an excuse to overcome the procedural bar of timeliness.
       Despite this, appointed counsel did not amend the petition. Instead, appointed counsel simply
       filed a response generally denying the State’s assertion that there was no basis to excuse the
       untimely filing. Appointed counsel, however, was aware of defendant’s alleged inability to
       access legal materials at the prison law library due to frequent lockdowns. This allegation
       could have potentially been used to overcome the section 2-1401 procedural time bar.
       Appointed counsel was therefore required to amend defendant’s petition to allege this excuse.
¶ 34        Significantly, we note that appointed counsel thought this excuse had some merit because
       counsel sought an evidentiary hearing on this issue. The problem is that counsel was incorrect
       because a hearing would only be necessary if defendant pled any facts that would warrant such
       a hearing. PSI Resources, LLC v. MB Financial Bank, National Ass’n, 2016 IL App (1st)
       152204, ¶ 29 (once the opposing party moves to dismiss on timeliness grounds, it was
       incumbent upon the responding party to set forth facts sufficient to avoid the statutory
       limitation). In other words, the excuse should have been pled in defendant’s petition or the
       response to the State’s motion so that the procedural bar could potentially be overcome and the
       matter could proceed to a hearing on the substantive claims in defendant’s petition. Since
       appointed counsel failed to recognize this, the court was required to dismiss the petition as
       untimely. Appointed counsel was, therefore, unreasonable for failing to amend the petition to
       allege available facts necessary to overcome the procedural bar of timeliness. Perkins, 229 Ill.
       2d at 44.



                                                   -6-
¶ 35                                         II. Due Diligence
¶ 36        Although our supreme court has not specifically defined the requirements of due diligence
       (whether it is a lower standard than reasonable assistance), the court in Tedder found that due
       diligence required appointed counsel to perform the tasks assigned by the court. Tedder, 92 Ill.
       2d at 226-27. In Tedder, that meant amending defendant’s pro se petition, which the court told
       counsel was inadequate. Id. at 227. In this case, in addition to counsel’s failure to address the
       procedural time bar, counsel also declined to review the transcripts from the proceedings in the
       face of the trial court’s instruction that a review of the transcripts was necessary to assist
       defendant in presenting his pro se petition. Appointed counsel’s actions taken together show
       that he made no effort to review defendant’s claims and provide the professional assistance the
       trial court deemed necessary to adequately represent defendant. The justification for
       appointing counsel in a section 2-1401 proceeding is to “ensure that prisoners have meaningful
       access to the courts.” Caruth v. Quinley, 333 Ill. App. 3d 94, 100 (2002) (Cook, J., dissenting).
       Given that counsel believed that he was not obligated review the transcripts, to amend—or
       even consider amending—defendant’s pro se petition, we cannot say that counsel exercised
       any diligence in assisting defendant. Because we find appointed counsel failed to satisfy the
       reasonable assistance and due diligence standards, we remand the matter for further
       proceedings and the appointment of new counsel.
¶ 37        In reaching this conclusion, we reject the State’s argument that appointed counsel provided
       adequate assistance because any argument to overcome the procedural bar of timeliness is
       without merit. The State also argues that the substantive issue raised in defendant’s pro se
       petition is without merit. These arguments ignore the fact that our supreme court has
       consistently held that remand is required where appointed counsel failed to fulfill the
       reasonable assistance requirements regardless of whether the claims raised in the petition had
       merit. People v. Suarez, 224 Ill. 2d 37, 47 (2007) (collecting cases). We note that, after a
       review on remand, newly appointed counsel may very well determine that defendant’s claims
       lack merit. See People v. Greer, 212 Ill. 2d 192, 205 (2004) (under Illinois Supreme Court
       Rule 137 (eff. July 1, 2013) appointed counsel “who determines that defendant’s claims are
       meritless cannot in good faith file an amended petition on behalf of defendant”). In such an
       instance counsel should move to withdraw. People v. Shortridge, 2012 IL App (4th) 100663,
       ¶ 14. If not, counsel should amend defendant’s petition to adequately present his pro se claims.
       Id. ¶ 13.

¶ 38                                       CONCLUSION
¶ 39      The judgment of the trial court of Kankakee County is reversed and remanded for further
       proceedings and the appointment of new counsel.

¶ 40      Reversed and remanded with directions.




                                                   -7-
