                            NO. 4-06-0163          Filed 12/26/07

                       IN THE APPELLATE COURT

                              OF ILLINOIS

                           FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,      )   Appeal from
          Plaintiff-Appellee,             )   Circuit Court of
          v.                              )   Vermilion County
DERRICK M. BROOKS,                        )   No. 02CF243
          Defendant-Appellant.            )
                                          )   Honorable
                                          )   Michael D. Clary,
                                          )   Judge Presiding.
_________________________________________________________________

            JUSTICE KNECHT delivered the opinion of the court:

            This case comes to us on the motion of the office of

the State Appellate Defender (OSAD) to withdraw as counsel on

appeal on the ground no meritorious issues can be raised in this

case.   For the reasons following, we disagree and deny the motion

to withdraw, but we also reverse and remand with directions.

                             I. BACKGROUND

            Defendant, Derrick M. Brooks, brings this appeal from

an order dismissing his postconviction petition.    On June 6,

2003, defendant was convicted, pursuant to a guilty plea, of one

count of criminal sexual assault (720 ILCS 5/12-13(a)(4) (West

2002)).    In exchange for his plea, the State dropped three other

charges.    The parties had no agreement as to sentence.   On July

30, 2003, after a hearing, the trial court sentenced defendant to

eight years' imprisonment.    Thereafter, the court admonished

defendant in accordance with Supreme Court Rules 604(d) and

605(d).    188 Ill. 2d Rs. 604(d), 605(d).

            On August 7, 2003, defendant sent a handwritten letter
to the circuit clerk, which stated as follows:

           "Ms Miller

                I [sic] regards to case # 2002 CF 243, I

           would like to know if possible I could get my

           transcripts regarding my case, as I've been

           convicted.   I would gladly appreciate you

           sending those A.S.A.P.    I'll be shipping out

           possibly 8-7-03.                   over÷

                                Thank you

                   Sincerely Derrick M. Brooks"

           On the reverse side of the letter, defendant continued

as follows:

           "ã Also I want to appeal my sentencing on

           case no 02/CF/243.

           Furthermore will you send me my mittimus

           papers as soon as possible to me in D.O.C."

           Without any indication in the record that defendant's

letter was forwarded to a trial judge, the circuit clerk filed

the letter as a notice of appeal and on August 12, 2003, filed a

notice of appeal with this court and notified OSAD.     On August

21, 2003, OSAD acknowledged its appointment by letter to the

circuit clerk (filed August 25, 2003) requesting the trial court

record.   This appeal followed.    On May 16, 2005, this appeal was

dismissed (People v. Brooks, No. 4-03-0691 (May 16, 2005) (unpub-

lished order under Supreme Court Rule 23)) with this court

finding; contrary to defendant's assertions, his letter could not


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be construed as a postjudgment motion, which motion is a condi-

tion precedent to an appeal following a guilty plea (see People

v. Flowers, 208 Ill. 2d 291, 300-01, 802 N.E.2d 1174, 1180

(2003)).

            Following the attempted appeal, on December 12, 2005,

defendant filed a pro se petition for postconviction relief,

alleging (1) the trial court violated his constitutional rights

by failing to comply with Supreme Court Rule 604(d) (188 Ill. 2d

R. 604(d)) and appointing counsel for him and (2) he received

ineffective assistance of counsel when counsel failed to comply

with the requirements of Rule 604(d).   On February 2, 2006, the

trial court dismissed defendant's petition under section 122-

2.1(a)(2) of the Post-Conviction Hearing Act (Act) (725 ILCS

5/122-2.1(a)(2) (West 2006)), finding the issues raised and

presented frivolous and patently without merit.   This appeal

followed.

            Appointed counsel, OSAD, has filed a motion to withdraw

as counsel under Pennsylvania v. Finley, 481 U.S. 551, 95 L. Ed.

2d 539, 107 S. Ct. 1990 (1987), asserting no issues of arguable

merit warrant appeal.   The record shows service of the motion on

defendant.   On our own motion, we granted defendant leave to file

additional points and authorities by November 20, 2006, which he

has done.    The State filed an appellee brief and defendant filed

a reply brief, in which he also attempted to raise a new issue--

the constitutionality of section 5-8-1(d) of the Unified Code of

Corrections (Unified Code) (730 ILCS 5/5-8-1(d) (West 2002)), the


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requirement for a term of mandatory supervised release (MSR) in

addition to a term of imprisonment.

           After examining the record in accordance with our

duties under Finley, we reverse the trial court's judgment and

deny OSAD's motion to withdraw as counsel on appeal but, in the

interest of judicial economy, we remand to the trial court for

the appointment of counsel and a second-stage proceeding on

defendant's petition for postconviction relief.

                           II. ANALYSIS

           OSAD argues no colorable argument can be made the trial

court erred by summarily dismissing defendant's petition.

Specifically, OSAD contends the court's findings and conclusions

are supported by the law and by the facts of this case.

                       A. Standard of Review

           A dismissal of a postconviction petition without an

evidentiary hearing is reviewed de novo.   People v. Coleman, 183

Ill. 2d 366, 388, 701 N.E.2d 1063, 1074-75 (1998).

                    B. Dismissal Was Not Proper

           OSAD argues this case was correctly dismissed under

section 122-2.1(a)(2) of the Act.   725 ILCS 5/122-2.1(a)(2) (West

2006)).   Section 122-2.1(a)(2) provides a petition may be dis-

missed as frivolous or patently without merit in a written order

that specifies the findings of fact and conclusions of law relied

upon by the trial court in reaching its decision.    725 ILCS

5/122-2.1(a)(2) (West 2006).

           First and foremost, OSAD contends defendant's claims of


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violations of his constitutional rights are barred by the doc-

trine of res judicata.   Although he was instructed by the trial

court prior to entry of his guilty plea as to the proper proce-

dures to follow to perfect an appeal after a guilty plea, defen-

dant instead filed with the circuit clerk a letter stating he

wanted to appeal his sentence.    The circuit clerk interpreted the

letter as a request to file a notice of appeal and she prepared

that.   Counsel was appointed for defendant on appeal and counsel

argued defendant's letter should have been interpreted by the

circuit clerk as a request to file a motion to reduce sentence.

This court held otherwise and dismissed his appeal.      OSAD con-

tends this court's decision on direct appeal precludes defendant

from relitigating the issue of whether his letter should have

been treated as a motion to reconsider sentence under Rule 604(d)

under the doctrine of res judicata.       People v Scott, 194 Ill. 2d

268, 280, 742 N.E.2d 287, 295 (2000).

           At first blush, this issue does seem to be barred by

res judicata, but, as defendant has argued in both his objections

and response to OSAD's motion to withdraw and his reply to the

State's brief, he is not arguing his letter should have been

construed as an actual postplea motion; he was attempting to

exercise his right to appeal and the trial court should have

appointed counsel to help him perfect his appeal.      Instead, the

actions taken at the trial-court level deprived him of his

opportunity to perfect his appeal.       To provide consistent prece-

dent and a consistent body of law, we will address the issue of


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the trial court's failure to afford defendant every opportunity

to protect his right to due process and the perfection of an

appeal raised by him in his petition for postconviction relief.

          Pursuant to Rule 604(d), a defendant may not appeal

from a judgment entered upon a plea of guilty unless (1) he files

a timely motion to reconsider, if challenging only his sentence;

or (2) if challenging his plea, files a timely motion to withdraw

guilty plea and to vacate the judgment.    188 Ill. 2d R. 604(d).

In the case of a negotiated plea, however, a defendant cannot

challenge his sentence without filing a timely motion to withdraw

his guilty plea and vacate the judgment.    188 Ill. 2d R. 604(d).

Rule 604(d) further provides, in relevant part, as follows:

          "The motion shall be in writing and shall

          state the grounds therefor. *** The motion

          shall be presented promptly to the trial

          judge by whom the defendant was sentenced[.]

          *** The trial court shall then determine

          whether the defendant is represented by coun-

          sel, and if the defendant is indigent and

          desires counsel, the trial court shall ap-

          point counsel."   188 Ill. 2d R. 604(d).

          Certain fundamental principles govern postplea filings,

and purposes underlie those principles.    Although Rule 604(d)

speaks in terms of a right to counsel after the postplea motion

is filed, we recently noted "Rule 604(d) provides a defendant the

right to the aid of an attorney in the preparation and presenta-


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tion of a postplea motion."    (Emphasis added.)    People v. Lofton,

No. 4-06-0582, slip op. at 7 (October 11, 2007), ___ Ill. App. 3d

___, ___, ___ N.E.2d ___, ___ (2007), citing People v. Barnes,

291 Ill. App. 3d 545, 550, 684 N.E.2d 416, 420 (1997).     Fundamen-

tal fairness requires this.     People v. Ledbetter, 174 Ill. App.

3d 234, 237-38, 528 N.E.2d 375, 377 (1988).

          The strict waiver requirements of Rule 604(d) affect

this equation.    The rule provides "[u]pon appeal any issue not

raised by the defendant in the motion to reconsider the sentence

or withdraw the plea of guilty and vacate the judgment shall be

deemed waived."    210 Ill. 2d R. 604(d).   In light of these

requirements, "fundamental fairness requires that a defendant be

afforded a full opportunity to explain his allegations and that

he have assistance of counsel in preparing the motion."

Ledbetter, 174 Ill. App. 3d at 237-38, 528 N.E.2d at 377.

Requiring an appeal to be dismissed when the prerequisites of

Rule 604(d) are not met is a further consequence to defendant.

Flowers, 208 Ill. 2d at 301, 802 N.E.2d at 1180.

          Given the legal consequences of failing to comply with

Rule 604(d), a defendant's right to appeal, his right to counsel,

and the preservation of any claimed defects in the plea and

sentencing proceedings should not depend, as here, upon a circuit

clerk's evaluation of a pro se filing.      As we noted in Lofton, we

recognize the difficulty facing trial courts when a defendant

expresses a desire to appeal.    See Lofton, slip op. at 8, ___

Ill. App. 3d at ___, ___ N.E.2d at ___.     Often, as here, the


                                - 7 -
defendant receives the proper admonitions but then expresses his

desire to appeal in a letter to the circuit clerk.    The clerk

should not be placed in the awkward position of trying to deter-

mine whether, despite the admonitions, the defendant actually

wants a notice of appeal filed or is simply expressing a desire

to start the process leading up to an appeal.

          Thus, proper procedure should be for the circuit clerk

to present any such letters regarding appeals or motions to a

trial judge.   The judge should then, in the interest of justice

and fundamental fairness, interpret any requests to appeal as a

request to begin the process of preserving a defendant's appeal

rights and appoint counsel.   This does not require interpreting

letters such as that filed by defendant here as actual postplea

motions, but only as a request to begin the process of preserving

his appeal rights as admonished by the trial court.    Counsel is

then required to be appointed because once a defendant demon-

strates his desire to appeal, even if not in compliance with the

Rule 604(d)'s written-motion requirement, the judge is obligated

to inquire whether he seeks counsel.     People v. Griffin, 305 Ill.

App. 3d 326, 330, 713 N.E.2d 662, 665 (1999).

          The Act establishes a three-stage process for adjudica-

tion of a postconviction petition.     People v. Boclair, 202 Ill.

2d 89, 99, 789 N.E.2d 734, 740 (2002).    If a defendant's petition

is not dismissed as frivolous or patently without merit, a

defendant's petition proceeds to stage two, where section 122-4

of the Act provides for the appointment of counsel for an indi-


                               - 8 -
gent defendant.    725 ILCS 5/122-4 (West 2006).   At this stage,

the State may file a motion to dismiss or answer the petition

(725 ILCS 5/122-5 (West 2006)), and the trial court determines

whether the petition makes a substantial showing of a constitu-

tional violation (Coleman, 183 Ill. 2d at 381, 701 N.E.2d at

1072).   If the petition is not dismissed at stage two, it pro-

ceeds to stage three, where the trial court conducts an eviden-

tiary hearing.    725 ILCS 5/122-6 (West 2006).

           As we have determined defendant's petition for

postconviction relief is not frivolous or patently without merit,

we remand to the trial court for second-stage proceedings under

the Act.

           Finally, we address defendant's attempt to raise for

the first time in his reply brief the issue of the constitution-

ality of the MSR statute, section 5-8-1(d) of the Unified Code.

While, as defendant points out, the constitutionality of a

statute may generally be raised at any time (People v. Christy,

139 Ill. 2d 172, 176, 564 N.E.2d 770, 772 (1990)), issues raised

for the first time in a reply brief, even when they deal with the

constitutionality of a statute, may not be considered.      Owens v.

Green, 400 Ill. 380, 407-08, 81 N.E.2d 149, 164 (1948);     Maun v.

Department of Professional Regulation, 299 Ill. App. 3d 388, 399,

701 N.E.2d 791, 799 (1998); People v. Coleman, 78 Ill. App. 3d

989, 992, 398 N.E.2d 185, 186 (1979).    Thus, we will not consider

defendant's argument as to the constitutionality of section 5-8-

1(d) of the Unified Code.


                                - 9 -
          After carefully reviewing the trial court record and

the trial court's reasoning and conclusions, we find the trial

court improperly dismissed the petition on its merits as frivo-

lous and patently without merit.   Defendant's petition requires a

response from the State before the trial court may consider

dismissal.   Defendant is entitled representation by counsel and

to his day in court.

                          III. CONCLUSION

          For the foregoing reasons, we deny OSAD's motion for

leave to withdraw.   We also reverse the trial court's dismissal

of defendant's petition for postconviction relief and remand the

case to the trial court for further proceedings consistent with

this opinion.

          Reversed and remanded with directions.

          MYERSCOUGH and COOK, JJ., concur.




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