                                  Illinois Official Reports

                                            Appellate Court



                              People v. Elken, 2014 IL App (3d) 120580




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      ANDRES M. ELKEN, Defendant-Appellant.


District & No.               Third District
                             Docket No. 3-12-0580


Rule 23 Order filed          May 1, 2014
Motion to publish
allowed                      June 4, 2014
Opinion filed                June 4, 2014


Held                         The dismissal of defendant’s successive postconviction petition at the
(Note: This syllabus         second stage of the proceedings was reversed and the cause was
constitutes no part of the   remanded to the trial court, since defendant was deprived of any
opinion of the court but     representation at the second-stage hearing when his postconviction
has been prepared by the     counsel appeared with defendant at the hearing, without filing a
Reporter of Decisions        motion to withdraw or notifying defendant that he intended to
for the convenience of       withdraw, and told the court that defendant’s petition was without
the reader.)                 merit, and under those circumstances, the appropriate relief was to
                             allow defendant’s appointed counsel to file a motion to withdraw with
                             notice to defendant and give defendant an opportunity to prepare and
                             present his arguments against the motion.



Decision Under               Appeal from the Circuit Court of Henry County, No. 95-CF-318-2; the
Review                       Hon. Larry S. Vandersnick and the Hon. Charles H. Stengel, Judges,
                             presiding.



Judgment                     Reversed and remanded.
     Counsel on               Bryon Kohut (argued), of State Appellate Defender’s Office, of
     Appeal                   Ottawa, for appellant.

                              Terence M. Patton, State’s Attorney, of Cambridge (Dawn D. Duffy
                              (argued), of State’s Attorneys Appellate Prosecutor’s Office, of
                              counsel), for the People.




     Panel                    JUSTICE SCHMIDT delivered the judgment of the court, with
                              opinion.
                              Justices Holdridge and McDade concurred in the judgment and
                              opinion.




                                                OPINION

¶1        Defendant, Andres M. Elken, appeals the Henry County circuit court’s dismissal of his
       second-stage successive postconviction petition. Following the dismissal, defendant filed a
       motion to reconsider on May 29, 2012. The trial court denied that motion.
¶2        Defendant alleges that the trial court erred in allowing appointed postconviction counsel to
       withdraw at the second stage of the proceedings, where defendant was not given notice of
       counsel’s intent to withdraw and was denied the opportunity to be heard on the motion or the
       dismissal of his petition.
¶3        We reverse and remand.

¶4                                            BACKGROUND
¶5         This case involves a rather tortured procedural process that involves two direct appeals and
       successive postconviction petitions. We include only those facts necessary for an
       understanding of the dismissal of defendant’s successive postconviction petition.
¶6         On November 7, 1995, defendant (along with five other codefendants) was charged by
       information with controlled substance trafficking, unlawful possession of a controlled
       substance with intent to deliver, and unlawful possession of a controlled substance. These
       charges stemmed from the discovery of over 500,000 grams of cocaine, following a routine
       traffic stop on Interstate 80. At trial, defendant moved to suppress the evidence found in the
       recreational vehicle. He argued that he did not understand English to the point that he could
       knowingly and voluntarily consent to the search, and he was unnecessarily detained for 40
       minutes while the officer waited for the canine unit to arrive. The trial court denied defendant’s
       motion to suppress and the matter proceeded to a bench trial.
¶7         Following the trial, the trial court found defendant guilty of the charged offenses and
       sentenced defendant to 110 years on the trafficking offense. The court also imposed a $63
       million street value fine.

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¶8         On direct appeal, defendant raised issues pertaining to the motion to suppress and the
       sentence imposed. This court affirmed the conviction, remanded the matter for a new
       sentencing hearing, and ordered the trial court to apply a $5-per-day presentence incarceration
       credit toward the fine. See People v. Elken, 309 Ill. App. 3d 1092 (2000) (table) (unpublished
       order under Supreme Court Rule 23).
¶9         On remand, the court resentenced defendant to 75 years’ imprisonment, reordered the $63
       million street value fine, and gave defendant a $1,660 presentence incarceration credit.
       Defendant did not file a notice of appeal from this judgment.
¶ 10       While the direct appeal was pending, appellate counsel contemporaneously filed a petition
       for relief from judgment, pursuant to section 2-1401 of the Illinois Code of Civil Procedure
       (735 ILCS 5/2-1401 (West 2008)), and a postconviction petition on defendant’s behalf. Those
       petitions alleged a violation of the Vienna Convention and that Trooper Blanks gave perjured
       testimony when he stated he did not look for out-of-state license plates or Hispanic drivers as
       indicators of drug trafficking activity. The State filed motions to dismiss on both motions,
       which the trial court granted.
¶ 11       Defendant appealed the dismissals, arguing the same issues set forth in his petitions. This
       court affirmed. See People v. Elken-Montoya, 329 Ill. App. 3d 1246 (2002) (table)
       (unpublished order under Supreme Court Rule 23).
¶ 12       On May 4, 2006, defendant filed a pro se postconviction petition. He argued that “his
       culpable negligence should be excused” because the same attorney who handled his direct
       appeal also filed his first postconviction petition. Substantively, defendant alleged: (1) that he
       was not advised of his rights under the Vienna Convention; (2) that Trooper Blanks committed
       perjury during the preliminary hearing where he testified that 274 bricks containing over 1,000
       pounds of cocaine, where only 2.5 pounds of the substance had been tested prior to the hearing;
       (3) that trial counsel was ineffective for stipulating to the lab report and chain of custody
       without sufficiently consulting with defendant; and (4) that appellate counsel was ineffective
       for failing to raise trial counsel’s ineffectiveness.
¶ 13       On May 18, 2006, the trial court appointed E. Stockton as counsel for defendant.
¶ 14       On July 18, 2006, defendant filed a pro se motion, seeking leave to file the postconviction
       petition and a supplement to the petition. In this motion, defendant alleged that he had not
       raised the instant claims in his first postconviction petition because the same attorney
       represented him on direct appeal and on his first petition. Defendant also raised an additional
       substantive claim, alleging that the probable cause hearing was not held within 30 days of his
       arrest.
¶ 15       On September 5, 2006, Stockton filed a motion for leave to file a successive postconviction
       petition with an additional issue. Counsel copied defendant’s pro se filing, making the same
       allegations of cause and prejudice as an exception to the single postconviction petition rule
       presented in the July 18 filing. On January 16, 2007, the State filed a motion to dismiss
       defendant’s second petition and his additional issue.
¶ 16       On March 23, 2007, the circuit court, Judge Vandersnick presiding, held a hearing on
       defendant’s motion for leave to file. The court allowed defendant leave to file, finding the
       petition was not frivolous insofar as defendant may have had a meritorious argument for
       ineffective assistance of appellate counsel. Defendant was granted leave to file an amended



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       petition, and the State was accordingly granted time to respond. The trial court also found that
       the State’s motion to dismiss was premature and reserved.
¶ 17        Stockton subsequently withdrew. On April 4, 2007, the court appointed S. Clemens to
       represent defendant. On April 16, 2007, defendant filed a pro se motion to supplement his
       petition, claiming that the statute under which he was convicted was void as violative of the
       single subject rule. On October 5, 2007, defendant filed a pro se petition for habeas corpus
       relief based on the same alleged single subject violation raised in his supplement to the
       postconviction petition. A docket entry on the chronological case summary shows that
       defendant’s habeas corpus petition was denied on November 27, 2007, but stated that counsel
       could amend the postconviction petition to include the issue.
¶ 18        On January 28, 2010, the trial court, Judge Stengel presiding, conducted a hearing on
       defendant’s pro se motion for new counsel, defendant’s renewed pro se motion for new
       counsel, defendant’s second habeas corpus petition for immediate release, and defendant’s
       pro se motion regarding the unconstitutionality of Public Act 89-404 (eff. Aug. 20, 1995)
       (declared unconstitutional by People v. Reedy, 186 Ill. 2d 1 (1999)). The trial court denied
       defendant’s motions for new counsel and found defendant’s second habeas corpus petition
       was res judicata. Attorney Clemens asked the court to defer ruling on defendant’s motion
       regarding Public Act 89-404 so that he could conduct additional research; though, he stated
       that he believed the Act did not amend or deal with section 401.1 of the Illinois Controlled
       Substances Act (720 ILCS 570/401.1 (West 2012)), which defendant was sentenced under.
       Clemens also requested additional time to focus his efforts on defendant’s arguments
       regarding ineffective assistance of appellate counsel. The trial court granted the continuance.
¶ 19        On May 8, 2012, the trial court held a hearing on defendant’s second postconviction
       petition and the pro se supplement thereto. Without any argument from the State on its
       reserved motion to withdraw, Clemens informed the court that defendant’s postconviction
       petition had no merit. Clemens stated that while Public Act 89-404 was declared
       unconstitutional, it did not amend nor deal with section 401.1 of the Illinois Controlled
       Substances Act (720 ILCS 570/401.1 (West 2012)) under which defendant was charged. He
       stated that both the perjury claim and the alleged Vienna Convention violation were barred by
       res judicata. Clemens stated that the issue relating to the stipulation of chain of custody had no
       merit. He also stated that the allegation of ineffective assistance of defendant’s counsel for
       failing to file a notice of appeal following resentencing on remand was without merit. Clemens
       spoke with defendant’s counsel on remand, who told Clemens that defendant never requested
       that he appeal the matter. Clemens also noted that one reason Judge Vandersnick allowed
       defendant leave to file a successive postconviction petition was his claim that appellate counsel
       was ineffective for filing a postconviction petition and a petition for relief under section
       2-1401, while the direct appeal was pending. Clemens opined that under Strickland v.
       Washington, 466 U.S. 668 (1984) and its progeny, there was nothing to suggest that appellate
       counsel, who did all three of these things, was ineffective. Finally, Clemens stated that
       defendant’s desired attack against the public act creating the Class X sentencing range also had
       no merit.
¶ 20        The record reveals that at no time before or after this colloquy with the court did Clemens
       move to withdraw, either orally or via a written motion. Nor is there any evidence that Clemens
       informed defendant of his intention to withdraw.


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¶ 21       The trial court then dismissed defendant’s successive postconviction petition “based upon
       arguments of defense counsel.” The State did not renew its motion to dismiss or make any
       arguments thereon. There was no mention of allowing Clemens to withdraw; the petition was
       simply dismissed based upon his assertions. The trial court informed defendant he had the right
       to appeal.
¶ 22       On May 29, 2012, defendant filed a motion to reconsider the orders allowing counsel to
       withdraw and dismissing his successive postconviction petition. The court heard the motion on
       July 9, 2012. Defendant stated that he had not known his attorney was going to move to
       withdraw. Defendant further stated he had not been allowed to go to the prison library and he
       had not had the opportunity to prepare “for things.” He requested a 60-day continuance and
       asked the court to order Clemens to turn over his case file so that he could raise additional
       issues.
¶ 23       The court denied defendant’s request that Clemens turn over his file. The court further
       denied defendant’s motion to reconsider dismissal of the postconviction petition and the order
       allowing counsel to withdraw.
¶ 24       This appeal followed.

¶ 25                                              ANALYSIS
¶ 26       Defendant contends that the trial court erred in allowing counsel to withdraw at the second
       stage of postconviction proceedings when counsel had not provided defendant notice of intent
       to withdraw, and in dismissing defendant’s postconviction petition based solely on counsel’s
       assertions in support of his motion to withdraw.
¶ 27       It is important to note at the outset the rather unorthodox procedure followed at the May 8,
       2012, hearing on defendant’s successive postconviction petition. Defendant’s second
       appointed counsel, S. Clemens, never actually filed a motion to withdraw, nor did he orally
       request to withdraw on the record. A review of the transcript for this hearing also indicates that
       the court never “allowed” counsel to withdraw, but it did dismiss the petition following the
       hearing.
¶ 28       Under the provisions of the Illinois Post-Conviction Hearing Act (725 ILCS 5/122-1 (West
       2012)), an indigent defendant, who has not been sentenced to death, is not automatically
       entitled to appointment of counsel. The source of the right to counsel in a postconviction
       matter is statutory rather than constitutional, and the Act does not provide for appointment of
       counsel unless an indigent defendant’s petition survives the first stage of postconviction
       proceedings. People v. McNeal, 194 Ill. 2d 135, 142 (2000); 725 ILCS 5/122-2.1, 122-4 (West
       2012). At the first stage, the circuit court, within 90 days, must review the defendant’s petition
       and independently determine whether it is frivolous or patently without merit. People v.
       Johnson, 401 Ill. App. 3d 685 (2010). If the court determines the petition is without merit, the
       petition must be dismissed. 725 ILCS 5/122-2.1(a)(2) (West 2012). “It is only after a
       defendant’s petition has been found to set forth the gist of a meritorious claim, or the court fails
       to take any action on the petition within 90 days of filing, that the process advances to
       second-stage proceedings and counsel is appointed.” (Emphasis in original.) People v. Greer,
       212 Ill. 2d 192, 204 (2004); 725 ILCS 5/122-2.1, 122-4 (West 2012).
¶ 29       At the second stage of the postconviction process, as is the case here, the circuit court must
       determine whether the petition and any accompanying documentation make a substantial


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       showing of a constitutional violation. People v. Coleman, 183 Ill. 2d 366, 381 (1998).
       Appointed counsel may seek leave to file an amended petition. People v. Blair, 215 Ill. 2d 427,
       458 (2005); 725 ILCS 5/122-5 (West 2012). At the second stage, the State is required to either
       answer the pleading or move to dismiss. People v. Morris, 335 Ill. App. 3d 70, 76 (2002). “In
       determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and
       in accompanying affidavits are taken as true.” People v. Orange, 195 Ill. 2d 437, 448 (2001). If
       no constitutional violation is shown, the petition is dismissed. People v. Tate, 2012 IL 112214,
       ¶ 12. The denial of a postconviction petition without an evidentiary hearing is reviewed
       de novo. People v. Marshall, 381 Ill. App. 3d 724, 730 (2008).
¶ 30       In this instance, where counsel’s actions at the second stage of representation are called
       into question, People v. Greer, 212 Ill. 2d 192 (2004), is instructive. In Greer, our supreme
       court addressed the obligations of appointed postconviction counsel and the consequences
       thereof pursuant to Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984). Rule 651(c)
       requires that the record in postconviction proceedings demonstrate that appointed counsel
       “ ‘has consulted with petitioner either by mail or in person to ascertain his contentions of
       deprivation of constitutional rights, 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.’ ” Greer, 212 Ill. 2d at 205 (quoting Ill. S. Ct. R.
       651(c) (eff. Dec. 1, 1984)). “Fulfillment of the third obligation under Rule 651(c) does not
       require postconviction counsel to advance frivolous or spurious claims on defendant’s behalf.
       If amendments to a pro se postconviction petition would only further a frivolous or patently
       nonmeritorious claim, they are not ‘necessary’ within the meaning of the rule. Moreover, the
       mere filing of an amended petition by counsel under such circumstances would appear to
       violate the proscriptions of Supreme Court Rule 137 [citation].” Id. Thus, an attorney, like
       Clemens in this case, who determines that defendant’s claims are meritless, cannot in good
       faith file an amended petition on behalf of defendant. Id.
¶ 31       The Greer court’s most relevant inquiry to the case at bar is as follows:
                “What is defense counsel to do after he or she determines that defendant’s petition is
                frivolous? Is counsel to stand mute at all subsequent proceedings? How can counsel,
                ethically, ‘present the petitioner’s contentions’ when counsel knows those contentions
                are frivolous? Obviously, the answer is counsel cannot.” (Emphasis in original.) Id. at
                206.
¶ 32       Here, Clemens’ research led him to the conclusion that defendant’s petition lacked merit
       and defendant makes no allegation that Clemens failed to comply with Rule 651(c). However,
       Clemens filed no motion to withdraw and gave no notice to defendant of his intent to
       withdraw. He simply stood up at the hearing and stated that defendant’s contentions had no
       merit. That is the key distinction that warrants reversal.
¶ 33       In People v. Sherman, 101 Ill. App. 3d 1131 (1981), the defendant filed a postconviction
       petition that the circuit court advanced to the second stage. Counsel was appointed to represent
       him. Without notifying the defendant, counsel filed a motion to withdraw indicating that he
       was unable to discover a basis for relief. Id. at 1132. Absent defendant’s presence, the court
       heard counsel’s motion. Id. at 1132-33. Following counsel’s arguments, the circuit court
       allowed the State’s oral motion to dismiss based upon counsel’s assertions in his motion to
       withdraw. Id. at 1133.


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¶ 34       This court found that counsel’s failure to notify the defendant of his motion to withdraw
       and the circuit court’s failure to give the defendant an opportunity to respond effectively
       deprived him of any representation at the hearing. Id. Defendant was entitled to adequate
       notice of counsel’s motion to withdraw and the State’s motion to dismiss in order to allow the
       defendant an opportunity to respond; this court accordingly remanded the matter for further
       proceedings. Id. at 1134.
¶ 35       Defendant in this case was present for the hearing. As a layperson, he cannot be expected to
       jump up at a hearing and voice his objections while his attorney is actively arguing against his
       interests. We do acknowledge, however, that had Clemens filed a motion to withdraw prior to
       the May 8 hearing, our analysis would change accordingly. Defendant did not allege that
       Clemens failed to comply with Rule 651(c), and Clemens’ actions are clearly acceptable, even
       necessary, under Greer. Indeed, Clemens could not have filed an amended petition to advance
       defendant’s contentions if his research found them to be frivolous without contravening Rule
       137.
¶ 36       Moreover, in Sherman and People v. Shortridge, 2012 IL App (4th) 100663, upon which
       the defendant relied heavily, the respective courts stated that counsel unequivocally argued
       against defendant’s interests (Sherman, 101 Ill. App. 3d at 1133) and if appointed counsel finds
       that a defendant’s claims are frivolous, counsel’s obligation is to seek to withdraw as counsel,
       not to confess the State’s motion to dismiss. Shortridge, 2012 IL App (4th) 100663, ¶¶ 13-14.
       If counsel finds that defendant’s contentions are frivolous or patently without merit at the
       second stage, he cannot in good faith continue, so he must file a motion to withdraw. If he files
       a motion to withdraw, he must give his reasons for doing so. He is then, in essence,
       “confessing” that the defendant has no viable arguments and is, in essence, agreeing that the
       petition should be dismissed. Our point is only that the confession is not necessarily wrong, but
       defendant should be afforded the opportunity to prepare for such an attack on his petition and
       to make any arguments in rebuttal. He was denied that opportunity here. The appropriate
       procedure under these circumstances would be for appointed counsel to file a motion to
       withdraw, giving defendant notice of the same. This allows defendant to prepare to argue
       against appointed counsel’s motion. It further obviates any opportunity for a defendant to
       argue that he was blindsided by his appointed counsel’s arguments.
¶ 37       Accordingly, this case is remanded to the circuit court of Henry County for further
       proceedings on the defendant’s second-stage postconviction petition.

¶ 38                                       CONCLUSION
¶ 39      For the foregoing reasons, the judgment of the circuit court of Henry County is reversed
       and remanded.

¶ 40      Reversed and remanded.




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