                            NO. 4-06-0014      Filed 1/31/07

                      IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )  Appeal from
          Plaintiff-Appellee,          )  Circuit Court of
          v.                           )  Champaign County
EMERSON L. BROOKS,                     )  No. 02CF1288
          Defendant-Appellant.         )
                                       )  Honorable
                                       )  John R. Kennedy,
                                       )  Judge Presiding.
_________________________________________________________________

          JUSTICE TURNER delivered the opinion of the court:

          Defendant, Emerson L. Brooks, appeals the Champaign

County circuit court's November 2005 "denial" of his

postconviction petition at the first stage, contending his claim

that the trial judge erred by denying his request for a continu-

ance to hire private counsel was (1) not waived and (2) a consti-

tutional issue.   We reverse and remand for further proceedings.

                            I. BACKGROUND

          In July 2003, the State charged defendant with posses-

sion of a controlled substance (720 ILCS 570/402(c) (West 2002))

and possession of a controlled substance with the intent to

deliver (720 ILCS 570/401(c)(2) (West Supp. 2001)) relating to

his actions on June 17, 2002.   At the beginning of defendant's

September 2004 trial, his appointed counsel told the trial court

defendant did not want her to represent him and desired more time

to hire private counsel.   The following dialogue took place:
                "THE COURT:     Do you have a lawyer now,

           [defendant]?

                THE DEFENDANT:     I talked to Mr.

           Silverman, and my family was supposed to go

           over today and give him the money.

                THE COURT:    Well, unless you have an

           attorney here ready to go right now, your

           motion is denied."

The court then proceeded with a jury trial on the charges.        The

jury found defendant guilty of possession of a controlled sub-

stance with the intent to deliver.

           In September 2004, defendant's appointed counsel filed

a motion for a new trial, asserting the State had failed to prove

"intent to deliver" beyond a reasonable doubt.       In October 2004,

G. Ronald Kesinger, a private attorney, filed a motion for

substitution of counsel and a continuance.     Kesinger also filed a

motion for substitution of Judge Thomas Difanis.      That same

month, Judge Difanis granted the motion to substitute counsel and

continued the matter.     Thereafter, Kesinger filed a motion for a

new trial, contending the trial court erred in denying defen-

dant's continuation motion so he could hire an attorney of his

choice.   In December 2004, Judge Jeffrey Ford denied the

substitution-of-judge motion.     Judge Difanis then held a joint

hearing on the posttrial motions and sentencing, at which it


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reduced defendant's conviction to possession of a controlled

substance and sentenced him to four years' imprisonment to run

consecutive to his sentence in another case (People v. Brooks,

No. 02-CF-48 (Cir. Ct. Champaign Co.)).

           On August 26, 2005, defendant filed a pro se petition

under the Post-Conviction Hearing Act (Postconviction Act) (725

ILCS 5/122-1 through 122-8 (West 2004)), contending he was denied

(1) a fair trial because Judge Difanis was prejudiced against him

and should have recused himself and (2) his right to counsel of

choice by the trial court's denial of his request for time to

hire private counsel.   On November 16, 2005, the trial court

"denied" the petition, finding both issues were waived since

defendant did not pursue a direct appeal.   The court also found

defendant failed to show the denial of his request for a continu-

ance to hire private counsel was "one of constitutional magni-

tude."   This appeal followed.

                           II. ANALYSIS

           While the trial court "denied" defendant's petition,

defendant actually appeals the first-stage dismissal of his

petition pursuant to section 122-2.1(a)(2) of the Postconviction

Act (725 ILCS 5/122-2.1(a)(2) (West 2004)).

           The Postconviction Act (725 ILCS 5/122-1 through 122-8

(West 2004)) provides a defendant with a collateral means to

challenge his or her conviction or sentence for violations of


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federal or state constitutional rights.     People v. Jones, 211

Ill. 2d 140, 143, 809 N.E.2d 1233, 1236 (2004).    Once the defen-

dant files a petition under the Postconviction Act, the trial

court must first, independently and without considering any

argument by the State, decide whether the defendant's petition is

"frivolous or is patently without merit."    725 ILCS

5/122-2.1(a)(2) (West 2004).   To survive dismissal at this

initial stage, the postconviction petition "need only present the

gist of a constitutional claim," which is "a low threshold" that

requires the petition to contain only a limited amount of detail.

People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102, 106

(1996).   This court reviews de novo the trial court's dismissal

of a postconviction petition without an evidentiary hearing.

People v. Simms, 192 Ill. 2d 348, 360, 736 N.E.2d 1092, 1105-06

(2000).

                    A. Waiver; i.e., Forfeiture

          Defendant first contends the trial court erred by

finding his right-to-counsel claim was waived because he did not

take a direct appeal.   The State disagrees, contending failure to

file a direct appeal is not an exception to the waiver doctrine.

          In its most recent case addressing waiver (more specif-

ically referred to as forfeiture and procedural default (People

v. Corrie, 294 Ill. App. 3d 496, 506, 690 N.E.2d 128, 135

(1998))) in postconviction proceedings, our supreme court stated


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the following:

           "The scope of the postconviction proceeding

           is limited to constitutional matters that

           have not been, and could not have been, pre-

           viously adjudicated.    Accordingly, any issues

           which could have been raised on direct ap-

           peal, but were not, are procedurally

           defaulted and any issues which have previ-

           ously been decided by a reviewing court are

           barred by the doctrine of res judicata."

           People v. Whitfield, 217 Ill. 2d 177, 183,

           840 N.E.2d 658, 663 (2005).

           In that case, the defendant filed neither a

postjudgment motion to withdraw his guilty plea nor a direct

appeal.   However, he later filed a motion that was treated as a

postconviction petition, in which he contended a due-process

violation based on his lack of knowledge of a three-year

mandatory-supervised-release (MSR) term when he pleaded guilty.

Whitfield, 217 Ill. 2d at 180-81, 840 N.E.2d at 661-62.      "Noting

the well-established rule that 'issues that could have been

raised on direct appeal, but were not, are not amenable to

post[]conviction review' (see People v. Collins, 153 Ill. 2d 130,

135[, 606 N.E.2d 1137, 1140] (1992))," the State contended

defendant had waived his claim for postconviction review because


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he had been aware of the lack of an admonishment on MSR since the

guilty-plea proceeding but did not file a postjudgment motion or

a direct appeal.     Whitfield, 217 Ill. 2d at 187, 840 N.E.2d at

665.

          The supreme court rejected the State's argument,

finding it would be incongruous to hold the defendant forfeited

his postconviction claim because he did not object to the trial

court's failure to admonish him.    The Whitfield court also noted

the defendant did not learn of the MSR term until prison and thus

he could not have raised the claim in a postjudgment motion or a

direct appeal.     Whitfield, 217 Ill. 2d at 188, 840 N.E.2d at 666.

Thus, the court did consider the forfeiture rule but found it

inapplicable because the claim could not have been raised ear-

lier.   Additionally, despite its citing of Collins, the Whitfield

court did not intimate the forfeiture rule is inapplicable when a

defendant does not take a direct appeal.    The Collins court had

stated the forfeiture rule as follows:    "When a defendant has

previously taken a direct appeal, all matters which were raised

or which could have been raised on that direct appeal are res

judicata in his subsequent post[]conviction proceeding."    (Empha-

sis added.)   Collins, 153 Ill. 2d at 135, 606 N.E.2d at 1140; see

also People v. Orange, 168 Ill. 2d 138, 167, 659 N.E.2d 935, 948

(1995).

          However, as defendant notes, in People v. Rose, 43 Ill.


                                 - 6 -
2d 273, 279, 253 N.E.2d 456, 461 (1969), the supreme court held

that, while a defendant's failure to take a direct appeal waived

claims based on mere error in the trial, the defendant was "still

entitled to assert those constitutional rights which the

Post[c]onviction Act is designed to protect and preserve."    In

reaching that conclusion, the Rose court noted the Postconviction

Act provides a separate remedy, whose availability is not contin-

gent upon exhaustion of any other remedy.   Rose, 43 Ill. 2d at

279, 253 N.E.2d at 460.   It further explained the essence of

waiver as follows:   "'We have consistently held that where review

has once been had by a writ of error, *** any claim which might

there have been raised, but was not, is considered waived.'"

(Emphasis in original.)   Rose, 43 Ill. 2d at 279, 253 N.E.2d at

461, quoting People v. Ashley, 34 Ill. 2d 402, 408, 216 N.E.2d

126, 129 (1966).

          Following Rose, this court has concluded that, when a

defendant never appeals, the rule that a defendant cannot raise

any issue in a postconviction petition that he or she could have

made on direct appeal is inapplicable.   See People v. Culp, 127

Ill. App. 3d 916, 920, 468 N.E.2d 1328, 1330-31 (1984).    The

First District more recently followed Rose in People v. Miranda,

329 Ill. App. 3d 837, 842-43, 769 N.E.2d 1000, 1005-06 (2002),

finding the waiver rule inapplicable when the defendant did not

appeal the conviction at issue.   The Fifth District also cited


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Rose in concluding that, despite the defendant's failure to

perfect a direct appeal, he could raise claims of constitutional

magnitude in his petition for postconviction relief.     People v.

Tripp, 248 Ill. App. 3d 706, 711-12, 618 N.E.2d 1157, 1160-61

(1993).

          While our supreme court seems to be moving away from

the Rose holding, as evidenced by its language in Whitfield, the

State did not cite and our research did not uncover a case where

the supreme court expressly overruled Rose or the later cases

following it.    Moreover, the rationale in Rose still applies to

the current Postconviction Act.    The current act does not require

a defendant to exhaust his direct appeal rights to obtain relief

under the act.    See 725 ILCS 5/122-1(c) (West 2004) (allowing a

defendant to file a postconviction petition within three years of

his conviction if he or she did not file a direct appeal).

Further, the Postconviction Act continues to permit the trial

court to examine constitutional issues that have escaped earlier

review.   See People v. Blair, 215 Ill. 2d 427, 447, 831 N.E.2d

604, 617 (2005).    Thus, until our supreme court expressly over-

rules Rose, we will continue to follow it.    Since defendant did

not take a direct appeal or subject his conviction to other

collateral review, we find the trial court erred by finding the

right-to-counsel issue forfeited.

                B. Deprivation of Constitutional Right


                                - 8 -
          Defendant also claims the trial court erred by finding

his challenge to the denial of his continuance to obtain counsel

of choice was not "one of constitutional magnitude."    We agree.

          This court recently addressed a defendant's request for

a continuance to obtain different counsel in People v. Bingham,

364 Ill. App. 3d 642, 645, 847 N.E.2d 903, 906-07 (2006).    There,

we noted a defendant has a constitutional right to the assistance

of counsel under both the United States (U.S. Const., amends. VI,

XIV) and Illinois Constitutions (Ill. Const. 1970, art. I, §8)

that includes the right to counsel of his or her choice.

Bingham, 364 Ill. App. 3d at 645, 847 N.E.2d at 906.    We further

explained that, "[i]n ruling on a motion to continue to substi-

tute counsel, the trial court must balance defendant's right to

choose his counsel against the efficient and effective adminis-

tration of justice."   Bingham, 364 Ill. App. 3d at 645, 847

N.E.2d at 907.   Moreover, we concluded that, based on the inade-

quate inquiry into the defendant's request to continue to obtain

new counsel, the trial court had abused its discretion and

violated the defendant's sixth-amendment right to counsel of

choice by denying that motion.     Bingham, 364 Ill. App. 3d at 645,

847 N.E.2d at 907.

          The State attempts to distinguish Bingham on the facts

and contends the trial court did not abuse its discretion by

denying defendant's motion.   However, the issue at this stage of


                                 - 9 -
the postconviction proceedings is whether defendant has alleged

"the gist of a constitutional claim."      (Emphasis added.)

Gaultney, 174 Ill. 2d at 418, 675 N.E.2d at 106.     Like the

defendant in Bingham, defendant claims his sixth-amendment right

to counsel of choice was violated by the court's denial of his

motion to continue to obtain new counsel because of an inadequate

inquiry.   In his petition, defendant alleged he informed the

court he had spoken to private counsel and his family was to pay

the attorney a retainer that day, and the court did not conduct

any further inquiry.   Accordingly, we find defendant has alleged

the gist of a constitutional claim.

           While defendant does not challenge the other issue he

raised in his postconviction petition, our supreme court has held

the Postconviction Act does not grant a trial court authority to

partially dismiss a postconviction petition at the first stage

(People v. Rivera, 198 Ill. 2d 364, 370, 763 N.E.2d 306, 310

(2001)), and thus we reverse the dismissal in toto.



                          III. CONCLUSION

           For the reasons stated, we reverse the trial court's

judgment and remand for further proceedings consistent with the

Postconviction Act.

           Reversed and remanded with directions.

           KNECHT and COOK, JJ., concur.


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