                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Thomas, 2013 IL App (2d) 120646




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



District & No.             Second District
                           Docket No. 2-12-0646


Filed                      June 20, 2013


Held                       The second-stage dismissal of defendant’s postconviction petition was
(Note: This syllabus       upheld where the attorney initially appointed for defendant was replaced
constitutes no part of     by a second attorney, the second attorney was allowed to withdraw
the opinion of the court   pursuant to a motion alleging that the petition was frivolous and patently
but has been prepared      without merit, then the trial court reappointed the second attorney,
by the Reporter of         subsequently replaced her with the initial attorney, and then allowed the
Decisions for the          initial attorney to withdraw on the ground that “successive court-
convenience of the         appointed counsel” was not allowed, since there is no constitutional right
reader.)
                           to counsel in postconviction proceedings, and in defendant’s case, no
                           unusual circumstances were set forth that would justify the reappointment
                           of his final counsel.


Decision Under             Appeal from the Circuit Court of Kane County, No. 00-CF-2621; the
Review                     Hon. Timothy Q. Sheldon, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Karen Munoz and Arden J. Lang, both of State Appellate Defender’s
Appeal                     Office, of Springfield, for appellant.

                           Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                           Bauer and Barry W. Jacobs, both of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                           Justices McLaren and Birkett concurred in the judgment and opinion.




                                              OPINION

¶1           Defendant, Lloyd T. Thomas, appeals from an order of the circuit court of Kane County
        granting the State’s motion to dismiss his pro se petition under the Post-Conviction Hearing
        Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)) for relief from his convictions of three
        counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 2000)
        (renumbered as section 11-1.30 by Pub. Act 96-1551, art. 2, § 5 (eff. July 1, 2011))).
        Defendant argues that he did not receive a reasonable level of assistance of counsel during
        the proceedings below, inasmuch as his court-appointed attorney did not comply with Illinois
        Supreme Court Rule 651(c) (eff. Dec. 1, 1984). The attorney in question was appointed after
        the trial court granted another attorney’s motion to withdraw on the basis that defendant’s
        petition was frivolous and patently with merit. Because we hold that under the facts of this
        case, after the trial court granted the motion to withdraw defendant had no further right to the
        assistance of counsel, we affirm.
¶2           Defendant was convicted following a bench trial and was sentenced to consecutive 10-
        year prison terms. We affirmed the convictions. People v. Thomas, No. 2-02-0405 (2003)
        (unpublished order under Supreme Court Rule 23) (Thomas I). Defendant filed his
        postconviction petition on July 17, 2004. The trial court took no action on the petition until
        April 27, 2005, when the court appointed counsel to represent defendant. Defendant was
        initially represented by attorney Ron Dolak. Attorney Rachel Hess later replaced Dolak as
        counsel for defendant. The record contains a certificate executed by Hess indicating, inter
        alia, that she had consulted with defendant by mail and by telephone and had reviewed the
        record of the proceedings at trial.
¶3           On May 8, 2009, Hess moved to withdraw pursuant to People v. Greer, 212 Ill. 2d 192
        (2004). In Greer, our supreme court held that an attorney appointed to represent a criminal
        defendant in a proceeding under the Act is ethically bound to withdraw when the defendant’s
        petition is frivolous and patently without merit. Id. at 209. The trial court granted Hess’s
        motion to withdraw and denied defendant’s postconviction petition. Defendant appealed and

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     we vacated the denial of the petition. People v. Thomas, No. 2-09-0908 (2011) (unpublished
     order under Supreme Court Rule 23) (Thomas II). We reasoned that the trial court erred in
     denying defendant’s petition before the State had either answered the petition or moved to
     dismiss it. Id. at 2.
¶4        In Thomas II, we did not consider whether the trial court erred in permitting Hess to
     withdraw. For reasons that are not altogether clear, however, the trial court reappointed Hess
     to represent defendant. The court later appointed Dolak to replace Hess as defendant’s
     attorney. Dolak subsequently moved to withdraw. Noting that Hess had previously been
     permitted to withdraw pursuant to Greer, Dolak argued, inter alia, that the Act does not
     authorize “successive court-appointed counsel.” The trial court agreed with that argument
     and permitted Dolak to withdraw. The trial court also granted the State’s motion to dismiss
     defendant’s petition. (The State had filed the motion while Dolak’s motion to withdraw was
     pending.) This appeal followed.
¶5        Under the Act, a person imprisoned for a crime may mount a collateral attack on his
     conviction and sentence based on violations of his or her constitutional rights. People v.
     Erickson, 183 Ill. 2d 213, 222 (1998). Proceedings under the Act are divided into three
     stages. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). During the first stage, the trial court
     independently examines the petition within 90 days after it is filed and docketed. 725 ILCS
     5/122-2.1(a) (West 2004). If the petition is frivolous or patently without merit, it will be
     summarily dismissed. 725 ILCS 5/122-2.1(a)(2) (West 2004). The petition may not be
     summarily dismissed where, as in this case, the trial court fails to do so within the 90-day
     period. People v. Inman, 407 Ill. App. 3d 1156, 1162 (2011). If the petition is not dismissed
     at the first stage, it proceeds to the second stage, at which an indigent defendant is entitled
     to appointed counsel, the petition may be amended, and the State may answer or move to
     dismiss the petition. Gaultney, 174 Ill. 2d at 418.
¶6        Defendant argues on appeal that the second-stage dismissal of his postconviction petition
     must be reversed because he did not receive the level of legal assistance from Dolak to which
     he was entitled. It is well settled that “[t]here is no constitutional right to counsel in
     postconviction proceedings.” People v. Daniels, 388 Ill. App. 3d 952, 960 (2009). The right
     to counsel at the second and third stages of a postconviction proceeding is purely statutory.
     Id. Although the Act does not, by its terms, specify the quality of legal representation that
     postconviction counsel must provide, “our supreme court has placed its gloss upon the
     statute, holding that defendants are entitled to a reasonable level of assistance, but are not
     assured of receiving the same level of assistance constitutionally guaranteed to criminal
     defendants at trial.” People v. Kegel, 392 Ill. App. 3d 538, 540-41 (2009) (citing People v.
     Owens, 139 Ill. 2d 351, 364 (1990)). The duty to provide reasonable assistance requires
     compliance with the specific obligations described in Rule 651(c). See People v. Davis, 382
     Ill. App. 3d 701, 711 (2008). That rule provides, in pertinent part, that “[t]he record [on
     appeal] shall contain a showing, which may be made by the certificate of petitioner’s
     attorney, that the attorney has consulted with petitioner either by mail or in person to
     ascertain his contentions of deprivation of constitutional right, has examined the record of
     the proceedings at the trial, and has made any amendments to the petitions filed pro se that
     are necessary for an adequate presentation of petitioner’s contentions.” Ill. S. Ct. R. 651(c)

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     (eff. Dec. 1, 1984). “[T]he 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).
¶7        It is undisputed that Dolak did not certify, and that the record does not otherwise
     establish, that he fulfilled the specific obligations set forth in Rule 651(c) before the trial
     court granted his motion to withdraw. Defendant argues that Dolak therefore failed to
     provide a reasonable level of assistance. The argument gives short shrift to the trial court’s
     stated reason for granting Dolak’s motion–that the Act does not provide for “successive
     attorneys.” In so ruling, the trial court effectively acknowledged that there was no basis for
     appointing Dolak after defendant’s prior attorney had been allowed to withdraw under Greer.
     In Greer, as in this case, counsel was appointed for the defendant not because the trial court
     had concluded that his postconviction petition set forth any meritorious claim, but because
     the trial court neglected to examine the petition within the 90-day period during which the
     trial court was authorized to summarily dismiss the petition. The Greer court noted that an
     attorney appointed under such circumstances “may well find that he or she represents a client
     attempting to advance arguments that are patently without merit or wholly frivolous, a client
     whose petition would have been summarily dismissed had the circuit court timely considered
     the merits of the petition.” Greer, 212 Ill. 2d at 207. Although the Act does not expressly
     authorize counsel to withdraw in such a case, the Greer court concluded that permitting
     counsel to withdraw was consistent with the legislative intent underlying the Act. Id. at 209.
     In reaching this conclusion, the Greer court reasoned, in part, as follows:
          “[T]he legislature has seen fit to confer upon the circuit court the power, without the
          necessity of appointing counsel, to dismiss, outright, petitions at first stage when they are
          deemed frivolous or patently without merit. The fact that the legislature has required
          appointment of counsel for indigent defendants when the circuit court has not considered
          a postconviction petition in a timely manner does not, in our opinion, indicate that the
          legislature intended that such a defendant have continuing representation throughout the
          remainder of postconviction proceedings, where counsel later determines that the petition
          is frivolous or clearly without merit. The purpose behind appointment of counsel in the
          latter instance might be, and probably is, nothing more than a desire to jump-start a
          process that has shown no signs of progress. There appears to be no other rationale for
          treating similarly situated defendants differently. Each defendant has filed a frivolous
          petition. The legislature surely did not intend to accord the latter defendant continuing
          representation after counsel determines the petition to be frivolous when the former
          defendant is never given counsel in the first place.” (Emphases in original and added.)
          Id. at 208-09.
     We read the words “continuing representation” in the above passage to mean representation
     by any appointed attorney (as opposed to representation by the particular attorney seeking
     to withdraw). To hold otherwise–i.e., to hold that the statutory right to counsel persists after
     an attorney has been permitted to withdraw under Greer–would lead to precisely the sort of
     disparate treatment that the Greer court denounced. Perhaps more importantly, to appoint
     successor counsel after granting an attorney’s motion to withdraw under Greer would
     ordinarily be an empty gesture, inasmuch as successor counsel would be obliged to withdraw

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       for precisely the same reasons that led his or her predecessor to withdraw. Thus, while the
       precise issue before the court in Greer was whether an attorney appointed under the Act may
       withdraw when his or her client’s petition is incurably meritless, the import of the Greer
       court’s reasoning is that, once an attorney appointed to represent a defendant in a
       postconviction proceeding has withdrawn in conformity with the requirements of Greer,
       there will be no further statutory right to counsel, at least in the absence of unusual
       circumstances.
¶8         After Hess withdrew in this case, the trial court denied defendant’s postconviction
       petition sua sponte. In Thomas II we held that the trial court was not authorized to dispose
       of the petition until the State had either answered or moved to dismiss. We did not hold,
       however, that the trial court had erred in permitting Hess to withdraw under Greer or that
       defendant was entitled to appointed counsel on remand. Moreover, the record discloses no
       unusual circumstances that warranted the appointment of counsel, and the trial court gave
       no explanation for its decision to appoint counsel.
¶9         Although the trial court appointed counsel on remand, it cannot be said that the
       appointment was truly under the auspices of the Act. Consequently, defendant was not
       entitled to the level of assistance guaranteed when the Act actually provides a right to
       counsel. Cf. Kegel, 392 Ill. App. 3d at 541 (because defendant’s petition was summarily
       dismissed, statutory right to counsel never arose, so defendant could not challenge summary
       dismissal on the basis that he did not receive a reasonable level of assistance from the
       privately retained attorney who prepared the petition). Because defendant had no right to a
       reasonable level of assistance from Dolak, Dolak’s failure to fulfill the duties specified in
       Rule 651(c) is not grounds for reversal of the dismissal of defendant’s postconviction
       petition.
¶ 10       For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

¶ 11      Affirmed.




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