                             2018 IL App (2d) 170120 

                                  No. 2-17-0120

                            Opinion filed June 21, 2018 

______________________________________________________________________________

                                           IN THE


                             APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

_____________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Kane County.
                                       )
      Plaintiff-Appellee,              ) No. 05-CF-2900
v. 	                                   )
                                       ) Honorable
QUENTIN CORLEY MOORE,                  ) Susan Clancy Boles and
                                       ) M. Karen Simpson, 

      Defendant-Appellant.             ) Judges, Presiding.

______________________________________________________________________________

       JUSTICE BIRKETT delivered the judgment of the court, with opinion
       Justices McLaren and Zenoff concurred in the judgment and opinion.

                                          OPINION

¶1     In 2007, defendant, Quentin Corley Moore, was convicted of attempted first-degree

murder. We affirmed his conviction on direct appeal. People v. Moore, No. 2-08-0919 (2010)

(unpublished order under Illinois Supreme Court Rule 23). Subsequently, defendant filed a

pro se postconviction petition. Counsel was appointed to represent defendant on the petition but

was later permitted to withdraw. The court subsequently dismissed the petition on the State’s

motion. Defendant appeals, challenging the orders granting counsel leave to withdraw and

dismissing the petition. We hold that postconviction counsel failed to demonstrate compliance

with the mandate of Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) that counsel

“ascertain [the defendant’s] contentions of deprivation of constitutional rights.” We therefore
2018 IL App (2d) 170120


vacate the orders allowing withdrawal of counsel and dismissing the petition, and we remand for

further proceedings.

¶2                                     I. BACKGROUND

¶3     In December 2005, defendant was indicted on two counts related to an alleged shooting

in Aurora on November 22, 2005. Count I charged defendant with attempted first-degree murder

(720 ILCS 5/8-4(a), 9-1(a)(1) (West 2004)) and alleged that defendant “performed a substantial

step towards the commission of [first-degree murder], in that he without lawful justification and

with the intent to kill Julian Ramos, shot Julian Ramos with a firearm.” Count II charged

defendant with aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2004)) and

alleged that defendant “discharged a firearm in the direction of another person in that he shot at

Julian Ramos with a firearm.”

¶4     Prior to jury selection, the State moved to amend count I to allege that defendant “shot at

Julian Ramos” (emphasis added) instead of “shot Julian Ramos.” Defendant did not object, and

the trial court permitted the amendment.

¶5     In its opening statement, the State anticipated that the evidence would show that, on

November 22, 2005, defendant was driving a car with three fellow members of the Latin Kings

gang. One of the passengers was Blake Pannell, an informant with the Federal Bureau of

Investigation (FBI). During the drive, another passenger, Augustin Montes, saw a pedestrian he

recognized as Ramos. Montes, armed with a handgun, left the car and shot at Ramos.

¶6     The evidence at trial was recounted in detail in our disposition on direct appeal. See

Moore, No. 2-08-091. Pannell testified that, in November 2005, he was a member of the Latin

Kings, working as an informant for the FBI. On November 22, 2005, Pannell was riding around

Aurora with three fellow Latin Kings: defendant, Montes, and Ruben Hernandez. Defendant was



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driving. The four were looking for graffiti that was insulting to the Latin Kings. When they saw

such graffiti, they would spray paint over it with insults to the Insane Deuces, a rival gang. For

security purposes, they had a gun, which belonged to defendant. Shortly after joining his

associates that day, Pannell activated the secret audio-recording device that he was wearing.

¶7     Pannell testified that, at some point during their drive, Montes remarked that he observed

a pedestrian who belonged to the Insane Deuces. The four plotted how to shoot the pedestrian.

Defendant drove the car in pursuit of the intended target. Montes twice exited the car with the

gun in order to shoot the pedestrian. The first time Montes exited, Pannell also left the car and

spray painted over some nearby graffiti. Before Montes exited the second time, Pannell covertly

removed the clip from the gun, which left Montes with just the one bullet in the chamber.

Pannell witnessed Montes fire the one bullet at the pedestrian. The four then drove in further

pursuit of the pedestrian but relented when he reached an area with a number of bystanders.

¶8     Pannell testified that he observed the pedestrian while the group was pursuing him.

However, only in the following exchange did Pannell name the pedestrian:

               “Q. Were you ever going to give the clip to [Montes]—for him to complete the

       shooting of Julian Ramos?

               A. No.”

¶9     Pannell testified that, after the encounter with the pedestrian, he and his three associates

went to the home of Marina Moreno, an aspiring Latin Queen. Montes hid defendant’s gun in

Moreno’s bedroom ceiling.

¶ 10   The State played for the jury a copy of Pannell’s audio recording. Voices are heard

declaring an intent to shoot someone and then commenting on the subject as he is pursued and

flees. Mixed in with the statements are the sounds of a car door shutting. The State also



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introduced into evidence a transcript of the audio recording. Ramos is not identified by name in

the recording itself or in the transcript.

¶ 11    Moreno testified that, on November 22, 2005, defendant came to her house with Pannell,

Hernandez, and Montes. After the group left, defendant phoned Moreno and told her that there

was a gun in the ceiling in her room. About a week later, Moreno took the gun and delivered it

to defendant at his request. She was not certain that the gun belonged to defendant, but she had

seen him with it on prior occasions.

¶ 12    The State also called the FBI agent who worked with Pannell. The agent testified that

Pannell contacted her on November 22, 2005, to report a shooting that had just occurred.

¶ 13    The State’s final witness was an Aurora police officer who testified as an expert on gang

activity.   The expert explained that animosity between rival gangs can manifest itself in

arguments, fights, or shootings. The expert opined that the shooting on November 22, 2005, was

gang-related.

¶ 14    Following that expert’s testimony, the State declared that it had no other witnesses.

Ramos had not testified.        The State moved to amend both counts of the indictment by

substituting “another” for “Julian Ramos.” Count I as amended would allege that defendant,

“without lawful justification and with the intent to kill another, shot at another with a firearm.”

Count II as amended would allege that defendant “discharged a firearm in the direction of

another person in that he shot at another with a firearm.” The State explained that its reason for

the proposed amendment was that it “couldn’t find” Ramos, though it had subpoenaed him for

prior settings of the trial.     The State contended that the amendment would conform the

indictment to the evidence at trial, which was that “an individual was shot at, a person was shot

at by [Montes].” The State suggested that Ramos’s name was “surplusage” in the indictment.



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¶ 15      Defense counsel objected to the proposed amendment. The trial court asked how the

amendment would prejudice the defense, and defense counsel replied that the amendment would

permit the State to argue that defendant was guilty as long as there was someone in the area

whom Montes could have shot at, whether it was Ramos or not. The court replied:

                 “I don’t think that is what they [the State] are saying. I think that they are saying

          it is a person who[m] [Montes] saw and said he’s a rival guy and that is the person. ***

                 I think they are identifying him in that way. I don’t think they are saying it could

          be anybody. I mean, it is not like there were ten people there that were being shot at.”

¶ 16      The court added that it would not permit the State to argue in closing that defendant

would be guilty as long as Montes shot at some individual, even if it were not the individual

whom Pannell testified he and his associates pursued. Finding no prejudice to the defense, the

court allowed the amendment to both counts.

¶ 17      Subsequently, the State rested and the defense called one witness, an Aurora police

detective. The detective testified that, when he spoke with Pannell on the evening of November

22, 2005, Pannell did not mention having done any spray painting or having exited the car near

the time of the shooting. Nor did Pannell mention that the gun in the car belonged to defendant.

¶ 18      In its closing argument, the State did not mention Ramos by name but referred

generically to the person who Pannell testified was pursued by his group on November 22, 2005.

¶ 19      In the defense’s closing, counsel commented on Ramos’s absence. In rebuttal, the State

argued:

                 “Do we have to show that Julian Ramos—what do we have to show about Julian

          Ramos? Well, there is no evidence about Julian Ramos. We do have evidence, evidence

          from the day of the shooting that Augustin Montes chased after a guy that Blake Pannell



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       identifies as a heavyset Hispanic kid. Identity is not an issue. If you look at the

       instructions, it says that. And what you will get is the instructions. And I in no way

       mean to misspeak. The definition of *** attempted first degree murder *** is that

       without lawful justification with the intent to kill an individual, [sic] does any act which

       constitutes a substantial step towards the killing of an individual.”

¶ 20   At this, defense counsel objected, remarking that the State was “dangerously close to

insinuating that *** this guy just vanished into thin air.” Counsel noted that the State had

“already named him as Julian Ramos.” The State replied that its remarks about what it had to

prove were simply in response to the defense’s comment on Ramos’s absence. The trial court

instructed the State that it could “talk about the jury instructions and the individual.” Continuing

with its argument, the State commented:

       “Again, it’s an individual shooting another person. Don’t have to identify that person.

       That person, in fact, does not have to come and testify. You won’t see an instruction that

       says you must hear—”

¶ 21   Defense counsel again objected, and the court sustained the objection.


¶ 22   The jury returned verdicts of guilty on both counts. Defendant filed a posttrial motion, 


reasserting that the trial court erred in permitting the amendments that eliminated the name


“Julian Ramos.” The trial court denied the motion. The court then sentenced defendant to 23½ 


years in prison. The court merged count II into count I for purposes of sentencing.


¶ 23   On direct appeal, defendant raised no issue regarding the amendments to the indictment. 


We affirmed defendant’s convictions. See Moore, No. 2-08-0919.


¶ 24   In October 2010, defendant filed a pro se postconviction petition under the Post-


Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). The petition was over




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500 pages, including attachments. He raised numerous contentions of error. One paragraph of

the petition read:

               “Petitioner was denied his right to the effective assistance of appellate counsel

       where appellate counsel failed to raise me being prejudiced by these amending at the day

       of trial and at the closing of trial [right] before closing arguments. On Nov. 5, [2007,]

       petitioner was prejudiced by the Court allowing the word be changed from ‘shot’ to ‘shot

       at’ on the first day of trial, which [the] judge agreed that this amending came as [a]

       surprise, also no motion by the State for this amending which is required by 725 ILCS

       5/115. Nov. 7, [2007,] there was another amending that was allowed that the judge

       allowed of the name of [the] alleged victim to be removed and for count one to read, ‘the

       intent to kill another,’ and for count two to read, ‘shot at another with a firearm,’ which

       the State said the name is mere surplusage. No motion on file for this second amending

       and with his name being removed in the Criminal Procedure Book 5/114-1 says that in

       section 10, the misnomer results in substantial injustice to the defendant, nothing of

       5/115-5 of the Criminal Procedure says the name could be removed and this done [right]

       before closing arguments of trial. He wasn’t even there at trial and they even used his

       name in [opening] statements, during trial and closing arguments. Case [law] says that

       you can’t broad[en] an element of the offense has to be returned to the Grand Jury for any

       changes. Then the judge makes a statement saying there wasn’t ten people being shot at,

       so how would you replace the alleged victim with another if there’s no one to say that

       there was another.”

¶ 25   In July 2011, defendant inquired by letter into the status of his petition. In August 2011,

the circuit court clerk responded by letter that the petition was “[i]n the docket as of August 3,



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2011” and that there was “no future court date.” The court’s first order on the petition was dated

May 15, 2012, and stated: “Rachel Hess was appointed to represent [defendant] in his post-

conviction petition on April 2, 2012, but it was erroneously put on 07 CF 1840, a closed case.”

Hess was later permitted to withdraw because of her workload, and new counsel was appointed.

In January 2014, new counsel filed an affidavit of compliance with Illinois Supreme Court Rule

651(c) (eff. Feb. 6, 2013) as well as a motion for leave to withdraw as counsel. Counsel

identified four individual claims raised in defendant’s pro se petition, and counsel explained why

each lacked potential merit.     In April 2014, counsel filed an addendum to her motion to

withdraw, addressing the potential merit of two additional claims raised in defendant’s petition.

Neither the original motion nor its addendum addressed the potential merit of, or even

acknowledged, defendant’s claim that appellate counsel was ineffective for failing to challenge

the amendments to the indictment.

¶ 26   The trial court granted counsel’s motion to withdraw. Subsequently, the State moved to

dismiss the petition. The State recognized that defendant claimed that appellate counsel “was

ineffective on the petitioner’s direct appeal.”      However, the State did not recognize that

defendant claimed ineffectiveness based on appellate counsel’s failure to claim that the

amendments to the indictment were improper.

¶ 27   The trial court granted the motion to dismiss, and defendant filed this timely appeal.

¶ 28                                      II. ANALYSIS

¶ 29   Defendant makes several alternative requests for relief in this appeal. His preference is

that we assess the merit or potential merit of the claim in his pro se postconviction petition that

appellate counsel was ineffective for failing to contend on direct appeal that the trial court erred

in permitting the State to amend count I by striking the name “Julian Ramos.” Defendant’s first



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three alternative choices of relief are (1) an outright reversal of his conviction, (2) a reversal of

his conviction and a remand for a new trial, and (3) a remand for a third-stage evidentiary

hearing under the Act. See People v. Bailey, 2017 IL 121450, ¶ 18 (petition will advance to

third-stage review if it presents a substantial showing of a constitutional violation).

¶ 30   Defendant’s fourth alternative choice of relief does not involve our assessing the merit or

potential merit of his pro se amendment claim. Specifically, defendant argues that the trial court

erred in permitting his appointed postconviction counsel to withdraw, because counsel failed to

provide the level of assistance required under the Act during second-stage proceedings. See

People v. Greer, 212 Ill. 2d 192, 204 (2004) (the Act guarantees the petitioner a “ ‘reasonable’ ”

level of assistance from appointed counsel). In determining whether that level of assistance was

provided, we need not—and must not—address the merits of the petition. See People v. Suarez,

224 Ill. 2d 37, 51-52 (2007). For the following reasons, we agree with defendant that the trial

court erred in allowing counsel to withdraw. Accordingly, we vacate the order of withdrawal

and the later dismissal of the pro se petition, and we remand for the appointment of new

postconviction counsel.

¶ 31   The Act (725 ILCS 5/122-1 et seq. (West 2010)) provides a procedural mechanism by

which a criminal defendant can assert that his federal or state constitutional rights were

substantially violated in his original trial. A postconviction proceeding is not a substitute for a

direct appeal, but rather is a collateral attack on a prior conviction and sentence. People v.

Davis, 2014 IL 115595, ¶ 13. For this reason, issues that were raised and decided on direct

appeal are barred from consideration, by the doctrine of res judicata. Id. Moreover, issues that

could have been raised on direct appeal, but were not, are considered forfeited. Id. However,




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application of forfeiture principles is relaxed where the forfeiture stems from the ineffective

assistance of appellate counsel. People v. English, 2013 IL 112890, ¶ 22.

¶ 32    Petitions under the Act are reviewed in distinct stages. The first stage spans the 90-day

period following the filing of the petition. Within that 90-day period, the trial court may dismiss

the petition if it determines that the petition is frivolous or patently without merit. 725 ILCS

5/122-2.1(a)(2) (West 2010). If the court finds that the petition is not so deficient but states the

“gist of a constitutional claim” (People v. Allen, 2015 IL 113135, ¶ 24), the petition advances to

the second stage of review. 725 ILCS 5/122-2.1(b) (West 2010). At the first stage, the State is

not permitted any input on the sufficiency of the petition. Bailey, 2017 IL 121450, ¶ 19. If the

trial court fails to act on the petition within 90 days, it proceeds to the second stage. Id. ¶ 18;

Greer, 212 Ill. 2d at 204 (“Of course, in [this] instance, the petition may well be frivolous or

patently without merit, and the defendant is appointed counsel only through the fortuity of the

circuit court’s inaction.”).

¶ 33    At the second stage, the petitioner, if indigent, is entitled to the appointment of counsel.

725 ILCS 5/122-4 (West 2010). The Act guarantees the petitioner a “ ‘reasonable’ ” level of

assistance from appointed counsel. Greer, 212 Ill. 2d at 204. To ensure that the requisite level

of assistance is provided, Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) imposes specific

duties on postconviction counsel.       If, after demonstrating compliance with Rule 651(c),

appointed counsel determines that the pro se petition is frivolous or patently without merit,

appointed counsel may—and should—move to withdraw from representation. Greer, 212 Ill. 2d

at 209, 211-12. The court in Greer said:

        “We are confident that the legislature did not intend to require appointed counsel to

        continue representation of a postconviction defendant after counsel determines that



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       defendant’s petition is frivolous and patently without merit. Nothing in the Act requires

       the attorney to do so, and the attorney is clearly prohibited from doing so by his or her

       ethical obligations.” (Emphasis omitted.) Id. at 209.

¶ 34   Also at the second stage, the State is permitted to answer the petition or move to dismiss

it. See 725 ILCS 5/122-5 (West 2010). To survive the second stage, the petition must make a

substantial showing of a constitutional violation. Bailey, 2017 IL 121450, ¶ 18. The court must

accept as true all well-pleaded facts that are not positively rebutted by the record. People v.

Pendleton, 223 Ill. 2d 458, 473 (2006). Review of a second-stage dismissal is de novo. Id.

Counsel’s compliance with Rule 651(c) is also reviewed de novo. People v. Profit, 2012 IL App

(1st) 101307, ¶ 17.

¶ 35   Defendant claims that it was error for the trial court to permit postconviction counsel to

withdraw where counsel neither (1) addressed the potential merit of his ineffectiveness claim

based on the amendment to the indictment nor (2) demonstrated compliance with Rule 651(c).

As defendant recognizes, our review of an order permitting postconviction counsel to withdraw

differs depending on whether the pro se petition advanced to the second stage because the trial

court deemed it potentially meritorious or instead because the trial court took no action on the

petition within 90 days of its filing. Under People v. Kuehner, 2015 IL 117695, ¶ 27, if the

petition advanced because the trial court found potential merit, then “appointed counsel’s motion

to withdraw must contain at least some explanation as to why all of the claims set forth in that

petition are so lacking in legal and factual support as to compel his or her withdrawal from the

case.” (Emphasis added.) The supreme court explained why it placed that burden on appointed

counsel:




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       “[A] request for leave to withdraw as counsel after a first-stage judicial determination

       that the pro se petition is neither frivolous nor patently without merit is an extraordinary

       request. The reason for this is that, in making such a determination and advancing the

       petition to the second stage, the trial court is granting the pro se defendant the first form

       of relief afforded by the Act, namely, the appointment of counsel to represent the

       defendant’s interests going forward (725 ILCS 5/122-4 (West 2008)). A subsequent

       motion to withdraw is effectively an ex post request to deny the defendant that very relief,

       and it comes not from the State but from defendant’s own counsel. Accordingly, we have

       no reservations about requiring appointed counsel to make the case in the motion to

       withdraw as to why the relief previously granted his or her client should be undone, and

       to make that case with respect to each and every pro se claim asserted.” (Emphasis

       omitted.) Id. ¶ 22.

In Kuehner, the court found that appointed counsel’s motion to withdraw was inadequate

because it did not address the potential merit of all claims in the pro se petition. Id. ¶ 23. The

court vacated the orders permitting counsel to withdraw and dismissing the petition, and the

court remanded for appointment of new postconviction counsel. Id. ¶ 27.

¶ 36   The court in Kuehner contrasted the facts before it with the facts in Greer, where the

pro se petition advanced to the second stage through the trial court’s failure to act upon it within

90 days. In Greer, appointed counsel’s motion to withdraw stated that the petition lacked merit

because counsel was unable to “ ‘properly substantiate’ ” any of its claims. Greer, 212 Ill. 2d at

200. The trial court granted the motion to withdraw and dismissed the petition. The supreme

court affirmed the trial court. The court disapproved of appointed counsel’s terse assessment of

the defendant’s pro se claims, as “[a]n attorney moving to withdraw should make some effort to



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explain why defendant’s claims are frivolous or patently without merit.” (Emphasis in original.)

Id. at 212. The court nonetheless affirmed the order permitting counsel to withdraw, because it

“appear[ed] that counsel fulfilled his duties as prescribed by Rule 651(c), and the record ***

support[ed] counsel’s assessment that the defendant’s postconviction claims were frivolous and

without merit.” Id.

¶ 37   The court in Kuehner recognized that the language in Greer has engendered “some

measure of confusion” in the appellate courts over whether appointed counsel’s motion to

withdraw is properly granted where the motion fails to provide some explanation as to why each

of the claims in the pro se petition lacks potential merit. Kuehner, 2015 IL 117695, ¶ 16. The

court in Kuehner declined to “resolv[e] that tension,” however, because the facts before it were

so different from the facts in Greer. Id. ¶ 18.

¶ 38   In People v. Komes, 2011 IL App (2d) 100014, this court took a side in the debate over

how to interpret Greer. We read Greer to hold that, even where the petition advances to the

second stage through the trial court’s inaction, appointed counsel’s motion to withdraw must

address the potential merit of all claims in the pro se petition. Nonetheless, we acknowledged

that, under Greer, judicial economy sometimes dictates affirming the grant of leave to withdraw

even where the motion to withdraw is deficient:

               “Although the Greer court specified that a motion to withdraw should address all

       of a petitioner’s claims, it also recognized that, under proper circumstances, the futility of

       the representation is clear in spite of flaws in the motion. If the record shows that counsel

       did everything required of him or her under Rule 651(c) and that all the claims in the

       original petition were patently without merit, then it serves no purpose to reverse a grant




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       of leave to withdraw simply because of insufficiencies in the motion.”           (Emphasis

       omitted.) Id. ¶ 30.

Komes properly construed Greer. Accordingly, where appointed counsel is allowed to withdraw

from representation on a postconviction petition that advanced to the second stage automatically

because of the trial court’s inaction, we will uphold the withdrawal if (1) counsel complied with

Rule 651(c) and (2) the record demonstrates that the claims in the pro se petition were frivolous

or patently without merit.

¶ 39   In the present case, the petition advanced to second-stage review because the trial court

did not act upon it within 90 days of its filing. The first order in the record relating to the

October 2010 petition is the May 2012 order appointing counsel. Even if we can infer from the

clerk’s August 2011 letter to defendant that the petition was docketed for second-stage review as

of August 2011, we cannot infer that it was docketed earlier than August 2011, which was still

beyond the 90-day window.

¶ 40   Therefore, our review proceeds under Greer rather than Kuehner. We hold that the trial

court erred in permitting counsel to withdraw, because counsel failed to demonstrate compliance

with Rule 651(c). The Act entitles a postconviction petitioner to a “ ‘reasonable’” level of

assistance by counsel. Greer, 212 Ill. 2d at 204. To ensure that the petitioner receives that level

of assistance, Rule 651(c) provides that postconviction counsel must (1) “consult[ ] with

petitioner *** to ascertain his or her contentions of deprivation of constitutional rights,”

(2) “examine[ ] the record of the proceedings at the trial,” and (3) “[make] any amendments to

the petition filed pro se that are necessary for an adequate presentation of petitioner’s

contentions.” Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). Thus, “[o]ne of postconviction counsel’s

duties is to ascertain the petitioner’s claims.”       Komes, 2011 IL App (2d) 100014, ¶ 32.



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Compliance with Rule 651(c) may be demonstrated though a certificate filed by counsel or

through the record as a whole. People v. Lander, 215 Ill. 2d 577, 584 (2005).

¶ 41   The record indicates that appointed counsel failed to recognize defendant’s amendment

claim among the multiple claims in his pro se petition. In the Rule 651(c) certificate that counsel

filed with her motion to withdraw, she stated that she (1) “reviewed [defendant’s] pro se filings

concerning [this] matter,” (2) “examined the entire record to ascertain any errors or constitutional

deprivations,” and (3) “consulted with [defendant] in person concerning potential issues.” In her

motion to withdraw, counsel stated that she consulted with defendant on specific dates “to

ascertain and discuss his contentions of deprivation of constitutional rights.” She further stated

that she “reviewed the entire record available to her *** and *** concluded that [defendant’s]

petition present[ed] no issue of merit upon which [defendant] could expect to obtain relief.”

Counsel then purported to state what, “[i]n short, the petition and its related documents allege.”

She set forth four individual claims and explained why they lacked potential merit. Several

months later, counsel filed an “addendum” to the motion to withdraw. Counsel noted that the

trial court had asked her to “address two additional points found in [the] post conviction

petition,” which counsel failed to address in her motion to withdraw. Counsel proceeded to

address two additional claims and explain why they were not potentially viable. At the hearing

on the motion to withdraw, counsel asserted that, in her motion, she “went through the issues and

stated *** positions and case law to address each one.” (Emphasis added.)

¶ 42   Thus, counsel confirmed at the hearing that her motion purported to recapitulate the

claims of the petition as she understood them. However, in neither her original motion nor its

addendum did counsel acknowledge the amendment claim. This was because, we infer, counsel

did not discern the claim among the others. Counsel’s oversight was perhaps understandable,



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given the length and density of the pro se petition, but counsel was not thereby excused from

compliance with Rule 651(c)’s mandate that she “ascertain [defendant’s] contentions of

deprivation of constitutional rights.” Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). “Unless the record

shows that counsel has, in fact, ascertained the petitioner’s claims, we cannot assume that the

claims are in their final form, and deciding their frivolity is likely to be premature.” Komes,

2011 IL App (2d) 100014, ¶ 32.

¶ 43   We recognize that a reviewing court has permission under Greer to affirm the grant of a

motion to withdraw even where counsel has not explained why each of the petitioner’s claims

lacks potential merit. But Greer was unequivocal that the reviewing court cannot relieve counsel

of his or her duty under Rule 651(c) to ascertain the petitioner’s claims. Greer, 212 Ill. 2d at

212. Counsel in Greer at least understood what the pro se petition contained. Counsel “stated,

as to each issue raised in defendant’s pro se petition, that counsel could not ‘properly

substantiate’ the claim.” Id. at 195. Obviously, it is imperative that counsel ascertain what the

pro se petition actually contains before asserting to a court that the petition lacks potential merit.

We stress that we do not read Greer as prescribing any particular form for a motion to withdraw.

Our holding is simply that here, though counsel attempted twice to state the claims in the pro se

petition, we cannot conclude that counsel ascertained the claim that she failed to mention in

those two tries.

¶ 44   Given counsel’s apparent failure to discern the amendment claim, we cannot deem the

claim to have been in its “final form” when the trial court evaluated its potential merit. It would

likewise be premature for us, on review, to judge the claim’s potential merit. See Suarez, 224 Ill.

2d at 52 (harmless-error analysis does not apply to Rule 651(c) violations, as “compliance must

be shown regardless of whether the claims made in the pro se or amended petition are viable”).



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¶ 45     We therefore vacate the orders permitting counsel to withdraw and later dismissing the

pro se petition. Given the particular circumstances of this case, we grant defendant’s request for

the appointment of new postconviction counsel. We provide the same direction that we did in

Komes:

         “On remand, the [trial] court should not grant any motion to withdraw unless counsel

         documents Rule 651(c) compliance. Further, any motion to withdraw that counsel files

         should demonstrate the frivolity of every claim of defendant’s.” Komes, 2011 IL App

         (2d) 100014, ¶ 36.

¶ 46                                   III. CONCLUSION

¶ 47     For the foregoing reasons, we vacate the orders permitting defendant’s appointed counsel

to withdraw and dismissing defendant’s pro se postconviction petition. We remand for further

proceedings as directed.

¶ 48     Vacated and remanded with directions.




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