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                              Appellate Court                            Date: 2018.06.14
                                                                         15:24:13 -05'00'




                  People v. Wallace, 2018 IL App (5th) 140385



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



District & No.    Fifth District
                  Docket No. 5-14-0385



Filed             March 12, 2018



Decision Under    Appeal from the Circuit Court of Marion County, No. 10-CF-374; the
Review            Hon. Mark W. Stedelin, Judge, presiding.



Judgment          Reversed; remanded with directions.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Maggie A. Heim, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Bill J. Milner, State’s Attorney, of Salem (Patrick Delfino, David J.
                  Robinson, and Kelly M. Stacey, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel
                  JUSTICE CHAPMAN delivered the judgment of the court, with
                  opinion.
                  Justices Moore and Overstreet concurred in the judgment and opinion.
                                              OPINION

¶1       The defendant, Jesse Wallace, appeals the second-stage dismissal of his postconviction
     petition, which raised a claim of ineffective assistance of plea counsel. The court advanced the
     petition to the second stage, expressly finding that it was not frivolous or patently without
     merit. Postconviction counsel did not amend the defendant’s petition because he did not
     believe that there were any amendments he could make to present meritorious arguments. The
     State filed a motion to dismiss, arguing that the defendant’s claims were forfeited because they
     could have been raised in his direct appeal. At a hearing on the State’s motion, counsel argued
     that the defendant’s claims could not have been raised on appeal and, therefore, the claims
     were not forfeited. The court found that the claims were forfeited and dismissed the petition. In
     this appeal, the defendant argues that (1) postconviction counsel did not provide reasonable
     assistance because he failed to amend the defendant’s petition to allow it to survive the State’s
     forfeiture argument, (2) postconviction counsel was obliged to file a motion to withdraw
     setting forth the reasons he believed the defendant’s petition was without merit, and (3) the
     defendant is entitled to a credit of $5 per day against his fine for time spent in custody prior to
     sentencing. The State urges us to affirm the order dismissing his petition either on the basis that
     the claims are barred by res judicata or on the basis that they are affirmatively rebutted by the
     record. We reverse the order dismissing the petition, and we remand with directions, including
     directions to amend the mittimus to reflect the $5-per-day credit.
¶2       This is the third time this matter has been before this court on appeal. The case has a
     complicated procedural history and involves a complex plea agreement. We will therefore set
     out the procedural history in some detail.
¶3       On December 29, 2010, the defendant was charged with two counts of unlawful delivery of
     less than one gram of a substance containing cocaine within 1000 feet of a place of worship
     (720 ILCS 570/401(d), 407(b)(2) (West 2010)). The charges stemmed from two controlled
     buys between the defendant and a confidential informant, which were video-recorded. At the
     time the charges were filed, an additional drug charge was pending against the defendant in a
     separate case, and apparently federal prosecutors were also considering indicting him on drug
     charges. Attorney Tim Huyett, who was already representing the defendant in the other state
     case, was appointed to represent the defendant in this case as well.
¶4       The matter was set for a preliminary hearing on January 25, 2011. The day before the
     hearing, Huyett informed the defendant that when he reviewed the video recordings of the
     controlled buys, he learned that the confidential informant was also his client. Huyett
     explained to the defendant that this created a conflict of interest that required him to withdraw
     as counsel. Huyett withdrew, and attorney Bill Milner was appointed to represent the
     defendant.
¶5       Milner appeared with the defendant at the preliminary hearing the following day. Although
     Huyett had withdrawn as counsel, he was also present. Milner informed the court that the
     defendant was waiving his right to a preliminary hearing. He indicated that at that time, the
     defendant intended to plead not guilty and demand a jury trial. However, he told the court that
     the parties were discussing a possible plea agreement, which could be resolved later that day.
     Milner explained that he needed time to discuss the matter further with prosecutors, but he
     stated that it was “of very urgent necessity” that the plea be entered that day because otherwise
     “the offer may expire.” The court expressed reservations, emphasizing that it was important

                                                  -2-
       that the defendant not feel rushed in deciding whether to accept the plea agreement. The state’s
       attorney explained that the possible agreement involved “an agreement by another
       prosecutorial agency” and that she could not “guarantee that they will make that agreement on
       a later date.”
¶6         The court took a recess. During the recess, the defendant discussed the plea agreement with
       both Milner and Huyett. When the court convened again after the recess, the court stated for
       the record, “I have been advised by the State as well as Mr. Milner and Mr. Huyett that
       this—there was some reference even earlier today *** regarding some other prosecutorial
       entity being involved. When I inquired about that, I was told it was the federal authorities ***,
       and I’m sure as part of this plea agreement there is going to be some representation regarding
       what may or may not happen with respect to federal court ***.” The court then turned its
       attention to the defendant’s plea.
¶7         After the defendant indicated that he wished to plead guilty, the court inquired, “And
       you’ve had enough time to discuss this with Mr. Milner even though he was only appointed
       yesterday?” The defendant responded, “Yes, ma’am.” The state’s attorney then described the
       plea agreement as follows. The defendant would plead guilty to one of the two charges. In
       exchange for his plea, the State would drop the second charge in this case and the charge
       involved in the other pending case. In addition, the State would recommend a sentence of 15
       years and a mandatory $2000 drug assessment fine. She explained further, “We have been
       informed that if Mr. Wallace enters this plea on today’s date to this amount, the federal
       government will not bring charges against Mr. Wallace arising from this or similar conduct.”
       She went on to explain that the State agreed to vacate the defendant’s plea and nol-pros the
       charges if the federal prosecutors went ahead and brought charges.
¶8         The court accepted the plea agreement. The state’s attorney then presented the factual basis
       for the defendant’s plea, and the court admonished the defendant. The court entered a
       judgment of conviction on the defendant’s plea, sentencing him in accordance with the plea
       agreement.
¶9         On February 17, 2011, the defendant filed a pro se motion to withdraw his guilty plea. He
       alleged that his first attorney, Tim Huyett, was representing both the defendant and the
       confidential informant at the same time. He argued that Huyett must have known about this
       conflict before he disclosed it to the defendant because the confidential source was visible in
       the video recordings of the controlled buys. The defendant further alleged that he felt
       “threatened” and “misled” by Huyett, who told him “that the FBI was looking into [his] case”
       and that he must plead guilty to the state charge to avoid a 20-year federal sentence. The
       defendant alleged that he felt rushed to plead guilty, he did not have the opportunity to see the
       video recordings before the hearing, and he only discussed the plea agreement with Milner for
       30 minutes before pleading guilty. Finally, he alleged that Huyett did not use the material
       provided by the State in discovery to “create any defense at all.”
¶ 10       The court appointed attorney Thomas Gatheman to represent the defendant on his motion.
       On July 28, 2011, Gatheman filed an amended motion to withdraw the defendant’s guilty plea.
       He argued that the defendant’s plea was not knowing and voluntary because (1) the defendant
       did not have sufficient time to consult with his attorney about the plea agreement or the
       evidence against him and (2) he entered into the plea due to a misapprehension of fact.
       Gatheman argued that although the defendant was not mistaken as to any specific fact when he
       pled guilty, he was operating under “a complete absence of knowledge of the facts.”

                                                   -3-
¶ 11       The court held a hearing on the defendant’s motion on August 19, 2011. The defendant
       testified at the hearing that he did not discuss the plea agreement with Huyett prior to the
       hearing at which he pled guilty. He acknowledged that he met with Huyett at least once
       between the time the charges were filed in this case and the date of the hearing. He explained,
       however, that they only discussed the other case pending against the defendant. He further
       testified that neither Huyett nor Milner ever discussed with him what evidence the State had
       against him in this case. Asked what Milner told him on the day of the plea hearing, the
       defendant replied, “Just told me what my plea agreements were.” The defendant explained that
       Milner told him that he was being offered 15 years and that he would be charged federally if he
       did not plead guilty.
¶ 12       The defendant further testified that he believed Milner relied on Huyett in deciding how to
       handle the case. He noted that Huyett discussed the plea deal with the defendant and Milner
       even though he had withdrawn due to a conflict.
¶ 13       Asked why he accepted the plea agreement under these circumstances, the defendant
       testified that Milner told him, “Either I took the 15 years or by Friday or the State was going to
       allow the feds to take my case and I was going to be offered 20 years to life.” Gatheman asked
       the defendant why he told the court at the plea hearing that he had enough time to consider the
       plea agreement and was satisfied with the representation of both plea attorneys when he was
       now asserting that he felt otherwise. The defendant responded, “I just felt like that was all the
       options I had right then and there. They told me it was a one-day offer.”
¶ 14       Gatheman argued that for a plea to be voluntary, it must be made knowingly. He argued
       that the defendant’s plea was not made knowingly because he did not know what evidence the
       State had against him. The state’s attorney argued that the defendant did not allege that he was
       given any misrepresentations of fact or law. He acknowledged that the defendant was required
       to make a choice concerning the plea agreement in an “admittedly somewhat unique situation.”
       He argued, however, that the State could not control what federal prosecutors did, and it was
       accurate to tell the defendant that federal prosecutors would indict him that week unless he
       pled guilty to state charges and received a sentence of at least 15 years. Finally, the State
       pointed out that the court “repeatedly admonished” the defendant regarding the concerns he
       was raising in his motion to vacate his plea.
¶ 15       The court announced its ruling from the bench. The court noted that “the burden [was] on
       the defendant to show a reason to withdraw the plea of guilty.” The court found that the
       defendant failed to meet this burden in two ways. First, the court noted that the defendant failed
       to make any allegations concerning what the evidence was or what defense he might have
       raised had Huyett or Milner discussed it with him. Second, the court explained, “As far as what
       did or didn’t happen with respect to the attorneys that he had, either Mr. Huyett or Mr. Milner,”
       neither attorney was subpoenaed to testify. The court also noted that at the plea hearing, the
       court urged the defendant to wait to plead so he would not feel rushed in his decision. The court
       therefore denied the defendant’s motion to withdraw his plea.
¶ 16       The defendant filed his first appeal in this matter on August 20, 2011. In that appeal, he
       argued only that the trial court erred in failing to comply strictly with the requirements of
       section 5-3-1 of the Unified Code of Corrections (730 ILCS 5/5-3-1 (West 2010)). That statute
       requires the sentencing court to consider a presentence investigation report (PSI) before
       sentencing a criminal defendant for a felony conviction in most cases. However, the statute
       provides that the court may sentence the defendant without ordering a PSI if (1) the parties

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       agree to a specific sentence and (2) the court makes findings concerning the defendant’s
       criminal history, including any sentences previously imposed. Id. Compliance with these
       requirements is mandatory and is not subject to waiver. People v. Youngbey, 82 Ill. 2d 556, 564
       (1980). In this case, the parties agreed to a specific sentence and counsel listed the defendant’s
       prior convictions for the record during the plea hearing; however, the court did not make the
       required findings. The State conceded that these proceedings did not comport with the
       statutory requirements. We agreed, and we vacated the defendant’s sentence and remanded the
       matter to the trial court for a new sentencing hearing that met the requirements of the statute.
       People v. Wallace, No. 5-11-0360, ¶¶ 1, 9 (2012) (unpublished summary order under Illinois
       Supreme Court Rule 23(c)).
¶ 17       On remand, the court held another sentencing hearing. The court again accepted the plea
       agreement and sentenced the defendant according to its terms. The court again admonished the
       defendant that if he wanted to appeal, he would first have to file a motion to withdraw his plea.
       The defendant filed another direct appeal, but this time he did not first file a motion to
       withdraw his plea. We dismissed the defendant’s appeal, finding that the defendant’s failure to
       file a motion to withdraw his plea precluded us from considering the merits of his appeal.
       People v. Wallace, No. 5-12-0484 (Sept. 19, 2013) (unpublished dispositional order) (citing
       People v. Flowers, 208 Ill. 2d 291, 301 (2003)).
¶ 18       On September 9, 2013, the defendant filed a pro se postconviction petition. He alleged that
       his plea was “insufficient” under Illinois Supreme Court Rule 402 (eff. July 1, 2012) because
       questioning by the court did not reveal whether he actually understood the nature of the rights
       he was waiving or the consequences of doing so. He further alleged that the court failed to
       comply with section 5-3-1 of the Unified Code of Corrections, “which is mandatory and not
       subject to waiver.” Finally, he alleged that he was “in fact threatened by counsel,” who told
       him that if he did not accept the plea agreement, “his charges would be turned over to the
       federal authorities.” (Emphasis in original.) The defendant argued that his “plea was so
       insufficient and so inadequate that the appellate court had to remand the cause following an
       appeal. Yet the irregularity and errors in the plea were not and could not have been corrected.”
       Although the defendant did not explicitly argue that he received ineffective assistance of
       counsel, his petition included a section titled “Constitutional and Statutory Provisions
       Involved,” in which he stated that the sixth amendment guarantees the right to the effective
       assistance of counsel.
¶ 19       On October 30, 2013, the court entered an order expressly finding that the defendant’s
       pro se petition was not frivolous or patently without merit. The court appointed attorney
       Matthew Chancey to represent the defendant. However, Chancey was not informed of his
       appointment until November 25. At a status hearing the following day, Chancey asked for a
       continuance to allow him time to confer with the defendant about possible amendments to the
       pro se petition. The court granted his request.
¶ 20       At the next status hearing, Chancey asked for a second continuance. He told the court that
       he reviewed a letter he had received from the defendant, the pro se petition, the transcripts
       from the plea hearings, and this court’s decisions in both of the defendant’s direct appeals.
       Chancey then stated, “to be honest with you, Judge, having read those, I don’t know what he’s
       raising—trying to raise in his post-conviction petition. The one issue he raises in his pro se
       post-conviction petition that I could make head or tail of was raised in his first appeal where he


                                                   -5-
       was successful.” Chancey noted that, as such, the issue was moot. He asked for an additional
       30-day continuance to try to determine what other issues the defendant wanted raised.
¶ 21       The matter was continued two more times because the defendant did not immediately
       respond to Chancey’s letter. At an April 15, 2014, status hearing, Chancey described for the
       court the efforts he had made to confer with the defendant to ascertain the claims he wanted
       raised. Chancey noted that he initially sent the defendant a letter in January but received no
       response from the defendant. He told the court that he then sent the defendant a second letter
       after a status hearing in February. This time he received a letter from the defendant in response.
       In the letter, the defendant raised additional issues but apparently did not clarify the issues he
       included in his pro se petition. Chancey told the court, “I still don’t see that there’s any merit to
       the issues he wants to raise. So I will not be filing an amended post-conviction petition.”
¶ 22       On May 13, 2014, the State filed a motion to dismiss. The State did not address the merits
       of the defendant’s petition. Instead, the State argued that the issues raised in the pro se petition
       were forfeited. The State argued that all of the defendant’s claims involved matters that
       appeared in the record. As such, the State contended, the claims could have been raised in the
       defendant’s first direct appeal. The State argued that the claims were therefore forfeited and/or
       barred by res judicata.
¶ 23       On June 24, the court held a hearing on the State’s motion. The state’s attorney first noted
       that the defendant’s petition “appears to be arguing” that the court did not comply with Rule
       402 at his plea hearing. She then stated, “I suppose he makes a second allegation that [he] was
       in fact threatened by counsel.” The state’s attorney argued that both of these issues could have
       been raised in the defendant’s motion to withdraw his plea and in his direct appeal. Because the
       claims were not raised, she argued, they were forfeited for postconviction review. (We note
       that the ineffective assistance claim was raised in the defendant’s pro se motion to withdraw
       his plea but was not raised either in the amended motion prepared by Gatheman or in the
       defendant’s first direct appeal. The Rule 402 claim was not raised at all in earlier proceedings.)
¶ 24       Chancey argued that neither claim was forfeited. He argued that appellate counsel could
       not raise the issue of the plea court’s compliance with Rule 402 because it was not raised in the
       defendant’s motion to withdraw his plea. (We note that Chancey did not argue that Gatheman
       was ineffective for failing to raise this claim in his amended motion.) Because it could not be
       raised on appeal, Chancey argued, the issue was not forfeited. He also argued that the claim
       concerning the advice of plea counsel and counsel’s alleged threat to the defendant could not
       have been raised earlier because it involved conversations between the defendant and plea
       counsel, which did not appear in the record. The court asked both parties if they had any
       authority to cite to support their arguments. Both stated that they did not.
¶ 25       The court took the matter under advisement and issued a written decision on July 11, 2014.
       The court noted that at the second stage of postconviction proceedings, it must take all
       well-pled facts as true unless they are contradicted by the record. The court then framed the
       issue before it as follows: “The issue raised by the Motion to Dismiss then is not whether the
       allegations are true; it is whether the issues presented by the pending Post-Conviction Petition
       could have been raised at the time of the initial appeal.” The court noted that because the issue
       was forfeiture, rather than res judicata, it did not need to determine whether the appellate court
       in fact considered any of the issues raised. The court then explained that the trial court record
       included the admonitions given to the defendant at his plea hearing, and the defendant’s claim
       of ineffective assistance of plea counsel was considered at the hearing on his motion to

                                                     -6-
       withdraw his plea. The court concluded that both issues could have been raised on direct
       appeal and found them to be forfeited as a result. The court therefore granted the State’s motion
       to dismiss. This appeal followed.
¶ 26       The defendant first argues that he did not receive reasonable assistance of postconviction
       counsel, the level of assistance that is guaranteed under the Post-Conviction Hearing Act (725
       ILCS 5/122-1 et seq. (West 2012)). He argues that Chancey’s failure to amend his petition to
       avoid forfeiture fell below this level of representation. We agree.
¶ 27       The Post-Conviction Hearing Act provides a three-step procedure for adjudicating claims
       that a criminal defendant’s conviction or sentence was the result of a violation of rights
       protected under the state or federal constitution. People v. York, 2016 IL App (5th) 130579,
       ¶ 15. At the first stage of postconviction proceedings, the court reviews the petition
       independently and determines whether the petition is frivolous or patently without merit. Id. If
       the petition clears that hurdle, it advances to the second stage, at which point the defendant has
       the right to counsel. Id. Counsel may file an amended petition, and the State may file a motion
       to dismiss or an answer. Id. ¶ 16. If the petition makes a substantial showing of a constitutional
       violation, it will be advanced to the third stage, which ordinarily involves an evidentiary
       hearing on the defendant’s claims. Id.
¶ 28       This case involves a petition dismissed at the second stage. Although, as we just noted, the
       petition must make a substantial showing of a constitutional violation in order to proceed to the
       third stage, the petition here was dismissed on the basis of forfeiture. Thus, the court did not
       consider whether the petition met this standard.
¶ 29       The Post-Conviction Hearing Act provides the right to counsel at the second and third
       stages of the proceedings. 725 ILCS 5/122-4 (West 2012). Because the source of this right to
       counsel is statutory rather than constitutional, the level of assistance guaranteed is not the same
       as the level of assistance constitutionally mandated at trial or on direct appeal. People v. Greer,
       212 Ill. 2d 192, 203-04 (2004). Our supreme court has held that the level of assistance
       guaranteed by the Post-Conviction Hearing Act is reasonable assistance. Id. at 204.
¶ 30       To provide the reasonable level of assistance guaranteed by statute, postconviction counsel
       must perform the three duties set forth in Illinois Supreme Court Rule 651(c) (eff. Feb. 6,
       2013). Specifically, counsel must (1) consult with the defendant to determine the claims the
       defendant wants to raise, (2) examine the trial court record, and (3) make any amendments to
       the petition that are necessary in order to adequately present the defendant’s claims to the
       court. Greer, 212 Ill. 2d at 205 (citing Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984)). This does not
       mean postconviction counsel must file an amended petition in every case. Rather, counsel must
       make only those amendments that are necessary to adequately present the defendant’s claims.
       People v. Turner, 187 Ill. 2d 406, 412 (1999). Thus, counsel might choose to stand on the
       defendant’s pro se petition if it adequately sets forth the defendant’s claims. Also, as our
       supreme court has held, it is not “necessary” to amend the defendant’s petition to advance
       claims that lack merit, and counsel is under no obligation to do so. See Greer, 212 Ill. 2d at
       205. However, as our supreme court emphasized in Turner, Rule 651(c) “plainly requires” that
       postconviction counsel make any amendments that are necessary. Turner, 187 Ill. 2d at 412.
¶ 31       If postconviction counsel files a certificate of compliance with Rule 651(c), this “creates a
       rebuttable presumption that postconviction counsel has provided the reasonable assistance
       contemplated by the [Post-Conviction Hearing] Act.” People v. Rivera, 2016 IL App (1st)
       132573, ¶ 36. Where counsel does not file a certificate of compliance, however, this

                                                    -7-
       presumption does not apply. Instead, we may find that counsel fulfilled his duties and provided
       reasonable assistance only if there is “ ‘an explicit showing in the record that he did, in fact,
       fulfill the rule’s requirements.’ ” People v. Jennings, 345 Ill. App. 3d 265, 271 (2003) (quoting
       People v. Carter, 223 Ill. App. 3d 957, 962 (1992)). We review de novo the question of
       whether counsel provided the reasonable level of assistance required. People v. Russell, 2016
       IL App (3d) 140386, ¶ 10.
¶ 32       In this case, postconviction counsel Matthew Chancey did not file a certificate of
       compliance with Rule 651, as the State acknowledges. The defendant argues that the record
       does not explicitly show that he complied with all of the rule’s requirements. We agree.
¶ 33       The record shows that Chancey consulted with the defendant to attempt to ascertain the
       contentions of error the defendant wanted him to raise. Chancey asked for several
       continuances to allow him to confer with the defendant. He sent multiple letters to the
       defendant, attempting to learn what issues the defendant wanted him to raise, although he
       apparently had some difficulty in obtaining clear answers from the defendant. However, we do
       not believe the record clearly establishes compliance with either of the two other requirements
       of Rule 651(c).
¶ 34       The record indicates that Chancey reviewed at least portions of the trial court record.
       Chancey informed the court that he reviewed the defendant’s pro se petition, his letters, the
       transcripts of the plea hearings, and the decisions of this court in both of the defendant’s direct
       appeals. However, he did not tell the court that he reviewed any other portions of the trial court
       record. While it appears that Chancey did in fact review at least part of the trial court
       record—for example, he pointed out that attorney Gatheman did not raise the question of the
       court’s Rule 402 admonishments in the motion to withdraw guilty plea he filed on behalf of the
       defendant—the record does not clearly establish that Chancey reviewed other pertinent
       portions of the trial record, such as the transcript from the hearing on his motion to withdraw
       his plea.
¶ 35       Most significantly, Chancey did not make any amendments to the defendant’s petition. The
       question before us is whether there were any necessary amendments he was required to make
       under the circumstances of this case. We find it was necessary to amend the petition to allege
       ineffective assistance of postplea counsel and appellate counsel in order to allow the
       defendant’s petition to survive the State’s motion to dismiss.
¶ 36       In reaching this conclusion, we are guided by the supreme court’s decision in Turner and
       the Third District’s decision in Russell. In Turner, the defendant filed a pro se postconviction
       petition. The trial court advanced his petition to the second stage and appointed counsel.
       Turner, 187 Ill. 2d at 409. Counsel did not file an amended petition. The court granted the
       State’s motion to dismiss, finding that all of the defendant’s claims were forfeited because they
       could have been raised on direct appeal but were not raised. Id.
¶ 37       The defendant appealed the dismissal of his petition, arguing that he did not receive
       reasonable assistance of counsel during the postconviction proceedings. Id. at 410. The
       supreme court agreed that counsel’s failure to amend his petition fell short of the
       representation required by Rule 651(c). Id. at 412. The court explained that the defendant’s
       claims would not have been forfeited if his attorney had amended the pro se petition to include
       a claim of ineffective assistance of appellate counsel. Id. at 413. The court further explained
       that failure to make this amendment “prevented the circuit court from considering the merits of
       [the] petitioner’s claims and directly contributed to the dismissal of the petition without an

                                                    -8-
       evidentiary hearing.” Id. The court emphasized that adding an allegation of ineffective
       assistance of appellate counsel under these circumstances is “a routine amendment.” Id. at 414.
       The supreme court held that because of this omission, along with counsel’s failure to make
       other necessary amendments and provide evidentiary support, counsel’s performance fell
       below the reasonable level of assistance required. Id. at 415.
¶ 38       The State argued there, much as it argues here, that the defendant’s underlying claims
       lacked merit, and as such, the defendant failed to demonstrate prejudice from counsel’s failure
       to amend the petition. Id. The supreme court declined to affirm on that basis. The court noted
       that the prejudice from counsel’s failure to amend the petition to overcome the procedural bar
       of forfeiture was “palpable.” Id. The court also explained that it is not appropriate to “speculate
       whether the trial court would have dismissed the petition without an evidentiary hearing if
       counsel had adequately performed his duties.” Id. at 416.
¶ 39       Similarly, in Russell, the defendant’s postconviction petition was dismissed at the second
       stage after appointed counsel failed to file an amended petition. Russell, 2016 IL App (3d)
       140386, ¶ 5. The defendant’s pro se petition raised five claims. Id. ¶ 4. In dismissing the
       defendant’s petition, the postconviction court found that one of those claims was barred solely
       on the basis of forfeiture because it was not raised in the defendant’s direct appeal. Id. ¶ 5.
¶ 40       On appeal, the defendant argued that counsel did not provide him with reasonable
       assistance because he failed to amend that claim to avoid forfeiture. Id. ¶ 8. Citing Turner, the
       Third District emphasized that the postconviction court was prevented from reaching the
       merits of the forfeited claim because counsel failed to amend the petition to include an
       allegation of ineffective assistance of appellate counsel, “an amendment that the Turner court
       called ‘routine.’ ” Id. ¶ 11 (quoting Turner, 187 Ill. 2d at 413-14). We note that in Russell,
       unlike this case, counsel filed a certificate of compliance with Rule 651(c), which, as we note
       earlier, created a rebuttable presumption that he provided reasonable assistance. Nevertheless,
       the Russell court found that counsel’s failure to make this one “routine amendment” was
       sufficient to overcome the presumption of reasonable assistance. Id.
¶ 41       In Russell, as in Turner and the instant case, the State argued that the claim lacked merit
       and, as such, counsel’s failure to amend it did not amount to unreasonable assistance. Id. ¶ 12.
       The court rejected this argument, explaining that where postconviction counsel has failed to
       fulfill his obligations under Rule 651(c), “remand is required, regardless of whether the claims
       raised in the petition had merit.” Id. (citing People v. Ross, 2015 IL App (3d) 130077, ¶ 15).
¶ 42       Here, as in Turner and Russell, Chancey could have amended the defendant’s petition to
       allege that Gatheman provided ineffective assistance on the defendant’s motion to withdraw
       his plea and that appellate counsel was ineffective for failing to raise the question on direct
       appeal. As we discussed previously, in denying the defendant’s motion to withdraw his plea,
       the trial court explicitly stated that the defendant failed to meet his burden of demonstrating
       that Huyett or Milner was ineffective, in part because he did not present the testimony of either
       attorney. Had Chancey amended the defendant’s petition to address this, it would have
       survived a motion to dismiss based on forfeiture. As our supreme court noted in Turner, this
       would have been a “routine amendment.” See Turner, 187 Ill. 2d at 414. For the reasons that
       follow, we believe that on the record before us, the need for this routine amendment was
       particularly obvious.
¶ 43       The record raises questions about the manner in which Huyett and Milner handled the plea
       proceedings. Huyett negotiated a plea agreement with prosecutors before withdrawing due to a

                                                    -9-
       conflict of interest. It does not appear that Milner played any role in negotiating the plea deal,
       and it is undisputed that Huyett was involved in advising the defendant concerning his plea on
       the day of the hearing in spite of his conflict of interest. Although the defendant told the court
       that he was satisfied with Huyett’s representation, he did not agree to waive the conflict of
       interest.
¶ 44       In addition, the defendant testified at the hearing on the motion to withdraw his plea that he
       never discussed the plea agreement with either attorney prior to the day he pled guilty, and
       there are some indications in the record that the defendant did not truly understand the plea
       agreement even though he told the court that he did. For example, he has repeatedly asserted
       that his attorneys told him this case would be turned over to federal authorities if he did not
       plead guilty that very day. While none of this necessarily means that Huyett or Milner provided
       ineffective assistance, it raises questions. As the trial court noted in its order denying the
       defendant’s motion to withdraw his plea, such questions might have been answered by the
       testimony of Huyett or Milner. We conclude that Chancey’s failure to amend the defendant’s
       petition to include a claim that Gatheman provided ineffective assistance fell below the
       reasonable level of assistance required under Rule 651. This was an amendment necessary to
       adequately present the defendant’s claim.
¶ 45       The State argues, however, that the real problem with the defendant’s petition was not
       forfeiture; the real problems were that his claim of ineffective assistance of plea counsel was
       actually considered by the trial court at the hearing on the defendant’s motion to withdraw his
       plea and that both of his claims are refuted by the record. The State urges us to affirm on either
       of these bases. We decline to do so. As the supreme court explained in Turner, it is not
       appropriate to consider the merits of the defendant’s petition where the trial court has not yet
       done so due to counsel’s failure to make amendments that are necessary to avoid forfeiture.
       Turner, 187 Ill. 2d at 415-16. Moreover, as we have already explained, we believe that the
       defendant’s claim of ineffective assistance of plea counsel cannot be resolved without looking
       to matters outside the record. We therefore decline to affirm the court’s ruling on either
       alternative basis urged by the State.
¶ 46       The defendant’s next argument is that Chancey had an obligation to withdraw as counsel
       rather than continue to represent him while “repeatedly” telling the court that he believed the
       defendant’s petition had no merit. He acknowledges in his reply brief that we may reverse the
       court’s ruling without deciding this question. However, because his argument touches on a
       question that might arise on remand, we will address it.
¶ 47       The defendant bases his argument largely on People v. Kuehner, 2015 IL 117695, and
       People v. Shortridge, 2012 IL App (4th) 100663. In Shortridge, the defendant filed a pro se
       petition, and the court appointed counsel. Counsel filed a certificate of compliance with Rule
       651(c) but did not file an amended petition. Shortridge, 2012 IL App (4th) 100663, ¶ 4. The
       State filed a motion to dismiss, arguing that the defendant’s claims were contradicted by the
       record. Id. ¶ 5. At a hearing, defense counsel informed the court that he and the state’s attorney
       (who was not present at the hearing) had agreed that defense counsel would appear alone and
       ask the court to reschedule the hearing. He then stated, however, that “ ‘at this point,’ he was
       ‘going to confess the motion to dismiss.’ ” Id. ¶ 6. The court therefore dismissed the petition.
       Id.
¶ 48       On appeal, the Fourth District found that counsel failed to fulfill his obligation to provide
       reasonable assistance. Id. ¶ 15. The court stated, “If counsel believes that his client’s claims are

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       frivolous or without merit, his ethical obligation is to seek a withdrawal as counsel.” Id. ¶ 13
       (citing Greer, 212 Ill. 2d at 209). The court reversed the order dismissing the defendant’s
       petition and remanded the matter for further proceedings with directions to appoint a new
       attorney to represent the defendant. Id. ¶ 15. The court went on to state, “If newly appointed
       counsel, after complying with the mandates of Rule 651, determines that [the] defendant’s
       petition lacks any meritorious issue, then he should move to withdraw as counsel. At that point,
       the circuit court would need to determine whether the record supported counsel’s assertion
       that the petition was without merit.” (Emphasis added.) Id.
¶ 49        We agree with the State that what occurred in Shortridge is significantly different from
       what occurred here. There, counsel completely failed to represent the defendant’s interests at
       all, and the defendant’s petition was dismissed with no advocacy or argument on his behalf at a
       hearing at which the State did not even present any arguments in favor of its motion to dismiss.
       See id. (stating that “appointed counsel should either represent [the] defendant’s interests in
       the proceedings or move to withdraw”). Here, we do not believe that Chancey failed to
       advocate on the defendant’s behalf at all, and he did not unilaterally withdraw the defendant’s
       petition from consideration. However, we have already concluded that reversal is warranted
       because his advocacy on behalf of the defendant fell short of the reasonable level of assistance
       required, and we agree with the Shortridge court’s assessment of what should occur on
       remand. We find support for this position in the supreme court’s holdings in Greer and
       Kuehner.
¶ 50        We note that neither Greer nor Kuehner involved the precise situation present here. In both
       of those cases, appointed counsel actually sought to withdraw, so the court was not called upon
       to decide whether counsel was obliged to do so. Kuehner, 2015 IL 117695, ¶ 9; Greer, 212 Ill.
       2d at 195. However, we find both cases instructive.
¶ 51        At issue in Greer was whether appointed postconviction counsel is permitted to withdraw
       under the Post-Conviction Hearing Act. See Greer, 212 Ill. 2d at 207. The court concluded that
       “the legislature did not intend to require” postconviction counsel to continue representing a
       defendant “after counsel determines that [the] defendant’s petition is frivolous and patently
       without merit.” Id. at 209. The court went on to state, “Nothing in the [Post-Conviction
       Hearing] Act requires the attorney to do so, and the attorney is clearly prohibited from doing so
       by his or her ethical obligations.” (Emphasis in original.) Id. Although the issue in Greer was
       whether counsel may withdraw, not whether counsel must withdraw, we cannot ignore this
       emphatic statement from our supreme court.
¶ 52        In Kuehner, the question before the court was not whether counsel is obliged to withdraw,
       but what counsel is obliged to assert if he does seek to withdraw. There, as in this case, the
       defendant’s petition was advanced to the second stage after the court expressly found that the
       petition was neither frivolous nor patently without merit. Kuehner, 2015 IL 117695, ¶ 8. The
       supreme court found this fact significant, explaining that once a postconviction court
       determines that, “on its face, the [defendant’s] petition [is] neither frivolous nor patently
       without merit,” counsel should not be allowed to simply “second guess” the court’s
       determination. Id. ¶ 20. The court recognized that in some cases, counsel might discover that a
       defendant’s claims are in fact frivolous in spite of the court’s initial determination to the
       contrary. The court held that in such cases, “counsel bears the burden of demonstrating, with
       respect to each of the defendant’s pro se claims, why the trial court’s initial assessment was
       incorrect.” Id. ¶ 21.

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¶ 53       We believe that the concerns underlying the court’s holding in Kuehner are implicated here
       as well. Here, the court expressly determined that at least one of the defendant’s claims was not
       frivolous or patently without merit. Because we have found that Chancey did not provide the
       defendant with the reasonable level of assistance guaranteed under the Post-Conviction
       Hearing Act, we must remand this matter for further second-stage proceedings. On remand, the
       court should appoint a new attorney to represent the defendant. If that attorney investigates the
       defendant’s claims and discovers that they are frivolous and patently without merit despite the
       court’s initial finding to the contrary, we believe counsel should file a motion to withdraw that
       comports with the requirements of Kuehner. This course of action is necessary because it
       would enable the postconviction court to reconsider its previous ruling, as the Kuehner court
       intended. See id. (noting that a motion to withdraw under these circumstances is similar to a
       motion to reconsider).
¶ 54       Finally, the defendant argues that he is entitled to a credit of $5 per day against his drug
       assessment fine for the time he spent in custody prior to sentencing. See 725 ILCS 5/110-14
       (West 2010). He correctly notes that this issue may be raised at any time. See People v.
       Caballero, 228 Ill. 2d 79, 88 (2008). The State concedes that the defendant is entitled to this
       credit, and we agree. The defendant is entitled to a credit against his $2000 drug assessment
       fine of $5 per day for 28 days for a total of $140. We therefore direct the circuit court to amend
       the mittimus on remand to reflect this credit.
¶ 55       For the reasons stated, we reverse the court’s order dismissing the defendant’s petition. We
       remand the matter for further proceedings with directions.

¶ 56      Reversed; remanded with directions.




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