                                  Illinois Official Reports

                                         Appellate Court



                             People v. Heard, 2014 IL App (4th) 120833



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      KEVIN T. HEARD, Defendant-Appellant.



District & No.               Fourth District
                             Docket No. 4-12-0833

Filed                        March 10, 2014

Held                         The dismissal of defendant’s postconviction petition at the second
(Note: This syllabus         stage of the proceedings was upheld over defendant’s contention that
constitutes no part of the   the cause should be remanded to allow defendant’s appointed counsel
opinion of the court but     to comply with Supreme Court Rule 651 prior to withdrawing, since
has been prepared by the     the record showed defendant filed a pro se postconviction petition
Reporter of Decisions        alleging ineffective assistance of his trial counsel, the trial court
for the convenience of       appointed counsel to represent defendant in the postconviction
the reader.)                 proceedings, defendant then filed a motion to recuse his appointed
                             counsel based on complaints against her, the trial court allowed
                             appointed postconviction counsel to withdraw at defendant’s request
                             and then granted the State’s motion to dismiss the petition, and under
                             the circumstances, appointed postconviction counsel’s performance
                             was not challenged and her withdrawal at defendant’s request left her
                             with no duty to comply with Rule 651.




Decision Under               Appeal from the Circuit Court of Sangamon County, No. 02-CF-665;
Review                       the Hon. Leo J. Zappa, Judge, presiding.



Judgment                     Affirmed.
     Counsel on               Michael J. Pelletier, Karen Munoz, and Daaron V. Kimmel, all of
     Appeal                   State Appellate Defender’s Office, of Springfield, for appellant.

                              John Milhiser, State’s Attorney, of Springfield (Patrick Delfino,
                              David J. Robinson, and James C. Majors, all of State’s Attorneys
                              Appellate Prosecutor’s Office, of counsel), for the People.




     Panel                    PRESIDING JUSTICE APPLETON delivered the judgment of the
                              court, with opinion.
                              Justices Pope and Harris concurred in the judgment and opinion.




                                                OPINION

¶1        The circuit court dismissed defendant’s petition filed pursuant to the Post-Conviction
       Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2010)) at the second stage of the
       proceedings. Defendant appeals, arguing the case must be remanded for the purpose of
       compelling appointed counsel to comply with the mandates of Illinois Supreme Court Rule
       651 (eff. Dec. 1, 1984) prior to her withdrawal as counsel. However, we find, because counsel
       withdrew at defendant’s request and not due to counsel’s inability to form a cognizable
       argument under the Act, we find remand is not necessary.

¶2                                         I. BACKGROUND
¶3         In January 2005, defendant pleaded guilty to criminal sexual assault as part of a fully
       negotiated plea agreement. The trial court sentenced him to 10 years in prison in accordance
       with the terms of the plea. Defendant did not file a direct appeal.
¶4         In March 2012, defendant filed a pro se postconviction petition, claiming his trial attorney
       rendered ineffective assistance of counsel by lying and misrepresenting certain facts to the trial
       court. The circuit court appointed Sara Mayo to represent defendant in the postconviction
       proceedings.
¶5         In April 2012, defendant filed a pro se “motion to recuse court appointed counsel,”
       claiming he “has complaints against [Mayo] that are both civil and criminal in nature that are
       an ongoing investigation. And as a result would cause prejudice and a conflict of interest.”
       Thereafter, the State filed a motion to dismiss defendant’s postconviction petition.
¶6         In June 2012, the circuit court conducted a hearing on defendant’s “motion to recuse
       court-appointed counsel.” Attorney Mayo orally moved to withdraw. The court asked Mayo if
       it was “at [defendant’s] request” and Mayo applied in the affirmative. The prosecutor noted


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       defendant had requested to proceed pro se and, therefore, he had no objection to Mayo’s
       motion. The court allowed Mayo to withdraw.
¶7         Defendant proceeded pro se, and in August 2012, the trial court granted the State’s motion
       to dismiss. This appeal followed.

¶8                                            II. ANALYSIS
¶9          The record in this case shows attorney Mayo did not file a Rule 651(c) certificate or
       otherwise comply with the requirements of the rule. As a result, defendant claims counsel’s
       noncompliance requires a reversal and a remand pursuant to Illinois law as set forth in cases
       such as People v. Suarez, 224 Ill. 2d 37, 51 (2007) (where postconviction counsel does not
       adequately comply with Rule 651, the case must be remanded for compliance). The State
       claims counsel is not required to comply with Rule 651 when it is defendant who requested
       counsel withdraw from representation. We agree with the State.
¶ 10        Initially, we note a defendant has a right to proceed pro se in postconviction proceedings.
       725 ILCS 5/122-4 (West 2010). That is, the Act “does not contemplate compelling a defendant
       who does not want counsel to accept counsel nonetheless.” People v. Gray, 2013 IL App (1st)
       101064, ¶ 22. As long as the defendant knowingly and intelligently relinquishes his right to
       counsel, and his waiver is clear and unequivocal, not ambiguous, the circuit court may allow
       him to proceed pro se. People v. Baez, 241 Ill. 2d 44, 115-16 (2011). Here, counsel was
       initially appointed but, before the State filed its motion to dismiss, defendant requested the
       court “recuse counsel.” In this appeal, defendant does not dispute the voluntariness of his
       waiver of counsel. He claims only counsel should have been required to comply with the
       mandates of Rule 651 before she was allowed to withdraw.
¶ 11        The purpose of Rule 651(c) is to “ensure that counsel shapes the petitioner’s claims into
       proper legal form and presents those claims to the court.” People v. Perkins, 229 Ill. 2d 34, 44
       (2007). The provisions of the rule require the record on appeal disclose that counsel took
       certain steps to assure an adequate presentation of defendant’s claims. Thus, it is clear the
       requirements of this rule attach only after the trial court appoints counsel. People v. Porter, 122
       Ill. 2d 64, 72 (1988). The question presented here, though, is whether the requirements survive
       counsel’s withdrawal from representation. Defendant cites Greer for the proposition that the
       requirements indeed survive counsel’s withdrawal. People v. Greer, 212 Ill. 2d 192 (2004).
¶ 12        In Greer, postconviction counsel was appointed solely because the trial court failed to
       dismiss the petition within the required time for summary dismissals. Greer, 212 Ill. 2d at
       194-95. Instead of filing a Rule 651(c) certificate, counsel moved to withdraw on the basis that
       the petition lacked merit. Greer, 212 Ill. 2d at 195. The issue before the supreme court was
       whether postconviction counsel, once appointed, could withdraw instead of complying with
       the duties set out in Rule 651(c). Greer, 212 Ill. 2d at 195-96. The supreme court held
       withdrawal was permitted but only after counsel complied with Rule 651(c). Greer, 212 Ill. 2d
       at 212.
¶ 13        Defendant claims, according to Greer, attorney Mayo was required to comply with the
       requirements of Rule 651 before she could withdraw from representation. However, we
       conclude defendant’s reliance on Greer is misplaced. Greer does not address the issue
       presented here, i.e., whether postconviction counsel is required to demonstrate compliance

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       with Rule 651 prior to withdrawing as counsel when the withdrawal is based on defendant’s
       desire to proceed pro se and is not based on an evaluation of the merits of the petition. Greer
       stands for the proposition that the circuit court must be satisfied that postconviction counsel
       met with defendant to ascertain his potential claims before the court allows counsel to be
       relieved of his or her duties when counsel is of the opinion that none of the defendant’s claims
       are sustainable. That stated principle does not address the situation here.
¶ 14       Mayo, who withdrew upon defendant’s request, should not be required to comply with the
       requirements of the rule when she was not withdrawing based on the circumstances set forth in
       Greer. Upon withdrawal at defendant’s request, counsel had no duty to ascertain whether
       defendant had presented all of his claims in his petition. If Mayo was seeking to withdraw
       because she was unable to present any meritorious issues in the postconviction proceedings,
       we would seek direction from Greer. However, when it is defendant who requests counsel
       withdraw, the court need not be satisfied that counsel made every effort to ascertain the
       defendant’s claims and present them to the court. That is, counsel’s performance is not at issue.
       Her failure to file a Rule 651(c) certificate before she was allowed to withdraw under the
       circumstances presented here is not cause for remand.

¶ 15                                       III. CONCLUSION
¶ 16      For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
       award the State its $50 statutory assessment against defendant as costs of this appeal.

¶ 17      Affirmed.




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