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                               Appellate Court                            Date: 2016.01.26
                                                                          13:07:58 -06'00'




                  People v. Lamar, 2015 IL App (1st) 130542



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           STEVEN LAMAR, Defendant-Appellant.



District & No.    First District, Fourth Division
                  Docket No. 1-13-0542



Filed             November 19, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 10-CR-8416; the
Review            Hon. Vincent M. Gaughan, Judge, presiding.



Judgment          Reversed and remanded.



Counsel on        Michael J. Pelletier, Alan D. Goldberg, and Kieran M. Wiberg, all of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Anthony O’Brien, and Iris G. Ferosie, Assistant State’s Attorneys, of
                  counsel), for the People.



Panel             JUSTICE COBBS delivered the judgment of the court, with opinion.
                  Presiding Justice McBride and Justice Howse concurred in the
                  judgment and opinion.
                                               OPINION

¶1        Defendant Steven Lamar appeals from an order of the circuit court of Cook County
     granting the State’s motion to dismiss his petition for relief under the Post-Conviction Hearing
     Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)) at the second stage of proceedings.
     Defendant contends that he made a substantial showing of ineffective assistance of trial
     counsel for failure to file a notice of appeal and, alternatively, that his cause should be
     remanded for further proceedings because the Illinois Supreme Court Rule 651(c) (eff. Feb. 6,
     2013) certificate of compliance filed by his postconviction counsel was inadequate, and the
     record demonstrates that counsel provided unreasonable assistance.
¶2        Following a bench trial in September 2010, defendant was found guilty of forgery for using
     a counterfeit $100 bill to pay for a drink at a bar, and sentenced to three years in prison.
     Defendant did not directly appeal this judgment; however, he later filed a complaint against
     trial counsel with the Attorney Registration and Disciplinary Commission (ARDC) alleging
     attorney misconduct. On March 2, 2012, defendant filed a pro se postconviction petition
     alleging ineffective assistance of counsel for, inter alia, failing to file a notice of appeal on his
     behalf. In his petition, defendant alleged that although defense counsel responded to the ARDC
     complaint by stating that he brought a notice of appeal to the sentencing proceedings but did
     not file it because defendant did not wish to appeal, defendant “never knew that his attorney
     brought it to court.” He also alleged that he never told his counsel that he did not want an
     appeal and expected counsel to appeal his conviction. He further alleged that he thought an
     appeal was pending until about 13 months after his conviction when he asked someone about it
     and was told that he should have heard something by now.
¶3        In support of his petition, defendant attached, in relevant part, his own affidavit averring
     that he “asked [counsel] to compare the preliminary transcripts to the trial transcripts after [he]
     was found guilty, because [he] was expecting an appeal.” Defendant further averred that
     counsel was “not telling the truth” to the ARDC in stating that defendant did not want to
     appeal. Defendant also attached a copy of the letter counsel sent to the ARDC in which counsel
     stated that defendant was advised of his right to appeal, but told counsel that he did not wish to
     appeal. Counsel further stated in that letter that he told defendant he had 30 days to appeal the
     sentence, and that defendant could contact him anytime by mail or by calling collect, but he
     never heard from defendant until he received a letter from the ARDC. Counsel asserted that
     defendant’s allegations were “untrue,” that he would have filed a notice of appeal if defendant
     wished him to do so, and, that he had one prepared in advance of sentencing.
¶4        Because more than 90 days had passed from defendant’s filing of the postconviction
     petition, defendant’s petition automatically advanced to the second stage of postconviction
     proceedings, and the circuit court appointed counsel to represent him. Appointed counsel
     informed the court that since there was no direct appeal in this matter, he needed to order the
     transcripts, and on the next date, informed the court that he was still waiting to receive the
     complete set.
¶5        On November 7, 2012, new postconviction counsel appeared on defendant’s behalf, and
     filed a Rule 651(c) certificate of compliance, stating that he consulted with defendant to
     ascertain his contentions of deprivation of constitutional rights, obtained and examined the
     record of the proceedings at trial, examined the pro se postconviction petition, and prepared no
     amendments to said petition.

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¶6          On December 27, 2012, the State filed a motion to dismiss, alleging that defendant did not
       outright claim that he wanted an appeal, and did not affirmatively state in his petition that he
       told his counsel he wanted an appeal, but simply stated that he thought an appeal was pending
       and was expecting an appeal. The State asserted that defendant’s claim was not well pled, and
       that it is not for the court to guess or infer what defendant means. In addition, the State alleged
       that the ARDC documentation contradicted defendant’s claim, demonstrated that defendant
       could not make a substantial showing of a constitutional violation, and thus, his petition should
       be dismissed outright.
¶7          In response, postconviction counsel filed citation of authority which set forth the
       parameters by which a petition is judged at the second stage of proceedings, and in particular,
       one alleging ineffective assistance of counsel. He also recounted the broad right of criminal
       defendants to a direct appeal and counsel’s obligations to his client.
¶8          Following a hearing on the motion, the court found that defendant had not shown a
       substantial violation of his constitutional rights, and that his claims failed to meet either prong
       of the Strickland test. Strickland v. Washington, 466 U.S. 668 (1984). The court further noted
       that trial counsel’s letter to the ARDC states that defendant told him that he did not want an
       appeal, and therefore, it was not counsel waiving the appeal, but rather, defendant. The court
       granted the State’s motion to dismiss.
¶9          In this case, defendant argues that the allegations in his petition, viewed against the
       backdrop of the trial record, demonstrate a substantial showing of a constitutional violation
       because trial counsel was ineffective for either disregarding his instructions to file an appeal or
       failing to consult with him about an appeal. The State responds that defendant’s postconviction
       petition failed to make a showing of a substantial constitutional violation where he did not
       allege that his trial counsel knew, or should have known, of his wish to file a notice of appeal.
¶ 10        Initially, the State contends that this court should not consider defendant’s claim because
       he failed to include the letter to the ARDC that was originally attached to his postconviction
       petition. However, we note that defendant has included a copy of the ARDC letter in the
       appendix of his reply brief and has also supplemented the record. Thus, defendant’s record on
       appeal is complete.
¶ 11        The Act provides a remedy for defendants who have suffered a substantial violation of
       constitutional rights at trial, and establishes a three-stage process for adjudicating a
       postconviction petition. People v. Pendleton, 223 Ill. 2d 458, 471 (2006). In the first stage, the
       circuit court may dismiss postconviction petitions that are “frivolous or *** patently without
       merit.” 725 ILCS 5/122-2.1(a)(2) (West 2012). In the second stage, “the circuit court must
       determine whether the petition and any accompanying documentation make a ‘substantial
       showing of a constitutional violation.’ ” People v. Domagala, 2013 IL 113688, ¶ 33 (quoting
       People v. Edwards, 197 Ill. 2d 239, 246 (2001)). If the petitioner makes the requisite
       substantial showing that his constitutional rights were violated, he is entitled to a third stage
       evidentiary hearing. Id. ¶ 34. At such a hearing, the circuit court serves as the fact finder, and,
       therefore, it is the court’s function to determine witness credibility, decide the weight to be
       given testimony and evidence, and resolve any evidentiary conflicts. Id.
¶ 12        In this case, defendant’s postconviction petition was dismissed at the second stage of
       review. At this stage, “all well-pleaded facts that are not positively rebutted by the trial record
       are *** taken as true.” Pendleton, 223 Ill. 2d at 473. Dismissal is warranted only if the


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       allegations in the petition, when “liberally construed in light of the trial record,” cannot support
       a substantial showing of a constitutional violation. People v. Hall, 217 Ill. 2d 324, 334 (2005).
¶ 13       The Illinois Supreme Court has provided some guidance as to what constitutes a
       “substantial showing” of a violation:
                “The second stage of postconviction review tests the legal sufficiency of the petition.
                Unless the petitioner’s allegations are affirmatively refuted by the record, they are
                taken as true, and the question is whether those allegations establish or ‘show’ a
                constitutional violation. In other words, the ‘substantial showing’ of a constitutional
                violation that must be made at the second stage [citation] is a measure of the legal
                sufficiency of the petition’s well-pled allegations of a constitutional violation, which if
                proven at an evidentiary hearing, would entitle petitioner to relief.” (Emphasis in
                original.) Domagala, 2013 IL 113688, ¶ 35.
¶ 14       Because the threshold at the second stage is whether the petition is legally sufficient, “[t]he
       inquiry into whether a post-conviction petition contains sufficient allegations of constitutional
       deprivations does not require the circuit court to engage in any fact-finding or credibility
       determinations.” People v. Coleman, 183 Ill. 2d 366, 385 (1998). Therefore, our review of the
       dismissal of a postconviction petition at the second stage is de novo. Id. at 387-89.
¶ 15       Ineffective assistance of counsel claims are evaluated under the two-prong
       performance-prejudice test established in Strickland, 466 U.S. 668. Under Strickland, a
       defendant must prove that defense counsel’s performance fell below an objective standard of
       reasonableness and that this substandard performance caused prejudice. People v. Johnson,
       218 Ill. 2d 125, 143-44 (2005). In this case, the parties disagree on what a defendant is required
       to demonstrate to satisfy the prejudice prong of Strickland during the second stage of
       postconviction proceedings where a defendant alleges that his counsel was ineffective for
       failure to file a notice of appeal. Specifically, defendant, citing People v. Ross, 229 Ill. 2d 255,
       261 (2008), argues that he is not required to show prejudice beyond the fact that he was denied
       his opportunity to appeal his conviction. However, the State relies on Edwards, 197 Ill. 2d at
       257-58, for its contention that defendant must allege the grounds that could have been raised
       on appeal. We agree with defendant and find the State’s reliance on Edwards misplaced.
¶ 16       In Edwards, the defendant–who had pled guilty pursuant to a negotiated guilty
       plea–claimed in a postconviction petition that he received ineffective assistance of counsel due
       to counsel’s failure to file a motion to withdraw the guilty plea to preserve his right to appeal.
       Id. The Edwards court found that the defendant’s petition presented the “gist” of an ineffective
       assistance of counsel claim sufficient to survive the first stage of postconviction proceedings;
       however, it held that in order to obtain a evidentiary hearing on the issue a defendant must
       make a substantial showing: (1) “that he told his trial counsel to file a motion to withdraw his
       guilty plea”; and (2) “that counsel was constitutionally ineffective for failing to do so.” Id. at
       257. The court further held that a showing that counsel was constitutionally ineffective “will
       necessarily entail some explanation of the grounds that could have been presented in the
       motion to withdraw the plea.” Id. at 258.
¶ 17       The State maintains that, with this holding, the Edwards court enunciated the necessary
       showing to survive second-stage review and obtain an evidentiary hearing on an issue.
       However, we do not believe that the court in Edwards intended this holding to apply in
       instances where a defendant alleges ineffective assistance of counsel for failure to file a notice
       of appeal. Our determination is based on our supreme court’s intention that a defendant who

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       pleads guilty endures a higher procedural hurdle to appeal his conviction than a defendant who
       is found guilty following a trial.
¶ 18        Illinois Supreme Court Rule 402(a) (eff. July 1, 2012) provides that before a guilty plea
       may be accepted, the trial judge must personally admonish the defendant in open court and
       inform him of the nature of the charge; the potential sentence possibilities; and inquire into
       whether the defendant understands the dimensions of his trial rights and the consequences of
       his guilty plea as it waives such rights. The court is also obligated to determine if the plea is
       voluntary (Ill. S. Ct. R. 402(b) (eff. July 1, 2012)) and if a factual basis supports the plea (Ill. S.
       Ct. R. 402(c) (eff. July 1, 2012)). If the guilty plea is based on a plea agreement, the terms of
       the agreement must be made part of the record and the judge must indicate whether he concurs
       with the agreement. Ill. S. Ct. R. 402(d)(2) (eff. July 1, 2012). The purpose of the
       admonishments is to ensure that the defendant understands his plea, the rights he has waived
       by pleading guilty and the consequences of his action. People v. Dougherty, 394 Ill. App. 3d
       134, 138 (2009) (citing People v. Johns, 229 Ill. App. 3d 740 (1992)). Because Rule 402
       requires that a defendant’s guilty plea be intelligent and voluntary, the trial court’s substantial
       compliance with the rule gives rise to the presumption that the plea is constitutionally valid.
       See People v. Burt, 168 Ill. 2d 49, 64 (1995); see also People v. Wilson, 295 Ill. App. 3d 228,
       235 (1998).
¶ 19        As a result, Illinois Supreme Court Rule 604(d) provides that “[n]o appeal from a judgment
       entered upon a plea of guilty shall be taken unless the defendant *** files in the trial court ***
       a motion to withdraw the plea of guilty and vacate the judgment. *** The motion shall be in
       writing and shall state the grounds therefor.” (Emphasis added.) Ill. S. Ct. R. 604(d) (eff. Dec.
       11, 2014). If the motion to withdraw the guilty plea is allowed, the trial court “shall modify the
       sentence or vacate the judgment and permit the defendant to withdraw the plea of guilty and
       plead anew.” Id. However, if the motion is denied, “a notice of appeal from the judgment and
       sentence shall be filed.” Id. Thus, under Rule 604(d), a defendant who pleads guilty is not
       entitled to a direct appeal unless he has first set forth grounds to withdraw his guilty plea before
       the trial court. See People v. Wilk, 124 Ill. 2d 93, 105 (1988) (holding that “Rule 604(d)
       establishes a condition precedent for an appeal from a defendant’s plea of guilty” (citing
       People v. Stacey, 68 Ill. 2d 261 (1977))).
¶ 20        Conversely, a criminal defendant who maintains his innocence and is convicted following
       a trial has an automatic right to appeal his conviction. Ill. Const. 1970, art. VI, § 6; People v.
       McCaslin, 2014 IL App (2d) 130571, ¶ 13. Illinois Supreme Court Rule 606 (eff. Dec. 11,
       2014) provides that in order to perfect an appeal a defendant need only file a notice of appeal
       with the clerk of the trial court specifying the order or judgment he wishes to appeal. Nothing
       in the rule requires a defendant to specify grounds for his appeal. Accordingly, we decline to
       extend the holding in Edwards to cases where, such as here, a defendant merely alleges that
       counsel failed to file a notice of appeal on his behalf. Instead, we believe the holding in
       Edwards that a substantial showing of a constitutional violation “will necessarily entail some
       explanation of grounds” was intended to mirror the requirements of Rule 604(d) requiring a
       defendant who pleads guilty to allege grounds to withdraw his guilty plea before he can appeal
       his conviction. Such a procedural bar does not apply to a defendant who is convicted following
       a trial.
¶ 21        Because the right to appeal is fundamental, in cases where a defendant alleges that counsel
       was ineffective for failure to file a notice of appeal, it is appropriate at the second stage of

                                                      -5-
       proceedings that a defendant need only show “a reasonable probability that, but for counsel’s
       deficient representation, the defendant would have appealed.” Ross, 229 Ill. 2d at 262. A
       defendant’s allegation that counsel failed to file an appeal pursuant to his wishes necessarily
       demonstrates a substantial violation of defendant’s constitutional right to appeal. See Roe v.
       Flores-Ortega, 528 U.S. 470, 484 (2000) (holding that “when counsel’s constitutionally
       deficient performance deprives a defendant of an appeal that he otherwise would have taken,
       the defendant has made out a successful ineffective assistance of counsel claim entitling him to
       an appeal”). We now address the merits of defendant’s claims.
¶ 22        Accepting the allegations in defendant’s postconviction petition as true and construing
       them liberally for purposes of a second stage proceeding, we find that the petition supports a
       substantial showing that he was denied effective assistance of counsel. Here, defendant alleged
       in his postconviction petition that he never told counsel that he did not want to appeal, thought
       one was pending, and expected and wanted an appeal. Further, in his sworn affidavit he alleged
       that he specifically, “asked [counsel] to compare the preliminary transcripts to the trial
       transcripts after [he] was found guilty, because [he] was expecting an appeal.” Defendant’s
       allegations that he explicitly asked trial counsel to take steps to prepare an appeal, if proven at
       an evidentiary hearing, would demonstrate that trial counsel’s performance was deficient. See
       Ross, 229 Ill. 2d at 262 (holding that the filing of a notice of appeal is a ministerial task, and
       defense counsel’s performance in failing to file a notice is substandard). Moreover, if we
       accept defendant’s allegation as true, that he expected and wanted an appeal, we find that he
       demonstrates that, but for counsel’s deficient representation, he would have appealed. Id.
¶ 23        Although in his response letter to the ARDC counsel contradicted defendant’s claims as
       “untrue” and stated that he advised defendant of his right to appeal and defendant did not wish
       to appeal, we do not find that these contradictory statements “positively rebut” defendant’s
       allegations; namely, they do not address the alleged off-the-record conversation defendant had
       with counsel regarding his expectation of an appeal or whether counsel consulted with
       defendant to ascertain his wishes. See People v. Kitchen, 189 Ill. 2d 424, 433 (1999) (holding
       that “when a petitioner’s claims are based upon matters outside the record, this court has
       emphasized that ‘it is not the intent of the [A]ct that [such] claims be adjudicated on the
       pleadings’ ” (quoting People v. Airmers, 34 Ill. 2d 222, 226 (1966))). At best, the record
       reveals a disputed fact which our supreme court has held is best resolved through an
       evidentiary hearing where fact-finding and credibility determinations are appropriate. See
       People v. English, 2013 IL 112890, ¶ 23. Consequently, the trial court should have reserved its
       resolution of the conflicting evidence in this case following an evidentiary hearing, the third
       stage under the Act.
¶ 24        Nonetheless, the State contends that because defendant never alleged in his petition that he
       gave specific instructions to his trial counsel to appeal his conviction, the appropriate inquiry
       in this case is whether counsel consulted with defendant about appealing pursuant to
       Flores-Ortega, 528 U.S. 470. In Flores-Ortega, the Supreme Court held that where defendant
       neither instructs counsel to file an appeal nor asks that an appeal be taken, the question of
       whether counsel has performed deficiently by not filing a notice of appeal is best answered by
       first asking whether counsel consulted with defendant about an appeal. Id. at 478. The Court
       then stated that “[w]e employ the term ‘consult’ to convey a specific meaning–advising the
       defendant about the advantages and disadvantages of taking an appeal, and making a
       reasonable effort to discover the defendant’s wishes.” Id.


                                                    -6-
¶ 25       Here, counsel claims in his response letter to the ARDC that he prepared an appeal, brought
       the appeal to court, but did not file it pursuant to defendant’s wishes; however, defendant
       alleged in his petition that he “never knew that his attorney brought [the appeal] to court” and
       “thought that [an appeal] was pending.” Thus, even if we accept the State’s contention that
       defendant did not give specific instructions to counsel regarding whether he wanted to file an
       appeal, the conflicting statements in defendant’s petition and trial counsel’s response letter to
       the ARDC reveal a clear dispute regarding whether counsel properly consulted with defendant
       to discover his desire to appeal. Again, this conflict should have been resolved following an
       evidentiary hearing. See English, 2013 IL 112890, ¶ 23. Additionally, the record is unclear as
       to whether counsel advised defendant about the advantages and disadvantages of filing an
       appeal.
¶ 26       Accordingly, we conclude that defendant’s postconviction petition sets forth a substantial
       showing of a constitutional violation and, therefore, defendant is entitled to an evidentiary
       hearing. We note that our finding in this case does not suggest, however, that defendant’s
       allegations are credible or supported by the evidence; we simply conclude that defendant’s
       petition, which contained well-pled allegations that must be taken as true, is legally sufficient
       and establishes a substantial showing of a constitutional violation based on ineffective
       assistance of counsel. Because we reverse on other grounds, we need not reach defendant’s
       argument regarding the adequacy of his Rule 651(c) certificate and whether counsel provided
       unreasonable assistance in failing to amend his petition to properly allege his claim.
¶ 27       For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and
       the cause is remanded for further proceedings.

¶ 28      Reversed and remanded.




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