                                          2018 IL App (3d) 150527

                                  Opinion filed January 4, 2018
       _____________________________________________________________________________

                                                   IN THE

                                     APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                     2018

       THE PEOPLE OF THE STATE OF                      )       Appeal from the Circuit Court
       ILLINOIS,                                       )       of the 21st Judicial Circuit,
                                                       )       Kankakee County, Illinois,
              Plaintiff-Appellee,                      )
                                                       )       Appeal No. 3-15-0527
              v. 	                                     )       Circuit No. 05-CF-176

                                                       )

       CHRIST E. WALKER,                               )       Honorable

                                                       )       Clark E. Erickson,
              Defendant-Appellant.                     )       Judge, Presiding.
       _____________________________________________________________________________

             JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
             Justices Lytton and McDade concurred in the judgment and opinion.
       _____________________________________________________________________________

                                                  OPINION

¶1            Defendant, Christ E. Walker, appeals from the dismissal of his petition for relief from

       judgment filed pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2­

       1401 (West 2014)). Defendant contends that his appointed counsel provided inadequate

       assistance. We reverse and remand for further proceedings.

¶ 2	                                               FACTS

¶3            A jury found defendant guilty of two counts of first degree murder (720 ILCS 5/9­

       1(a)(1), (2) (West 2004)), one count of attempted murder of a peace officer (720 ILCS 5/8-4(a),

       9-1(b)(1) (West 2004)), two counts of aggravated discharge of a firearm (720 ILCS 5/24­
     1.2(a)(2), (3) (West 2004)), one count of aggravated assault (720 ILCS 5/12-2(a)(6) (West

     2004)), and one count of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24­

     1.6(a)(1), (a)(3)(A) (West 2004)).

¶4          On April 4, 2006, the trial court merged the appropriate counts and sentenced defendant

     to the following: 49 years’ imprisonment for first degree murder, 20 years’ imprisonment for

     attempted murder of a peace officer; 10 years’ imprisonment for aggravated discharge of a

     firearm, and 5 years’ imprisonment for AUUW. Defendant’s sentence for first degree murder

     was ordered to run consecutive to the remaining sentences, resulting in an aggregate sentence of

     69 years’ imprisonment.

¶5          On direct appeal, this court affirmed defendant’s convictions and sentences. People v.

     Walker, 386 Ill. App. 3d 1025 (2008). Thereafter, defendant filed several additional but

     unsuccessful collateral appeals. See People v. Walker, No. 3-10-0077 (2010) (unpublished order

     under Supreme Court Rule 23); People v. Walker, No. 3-11-0100 (2011) (unpublished summary

     order under Supreme Court Rule 23(c)); People v. Walker, No. 3-11-0642 (2013) (unpublished

     summary order under Supreme Court Rule 23(c)).

¶6          Next, defendant appealed the denial of his second motion for leave to file a successive

     postconviction petition (denied November 14, 2013). On appeal, this court ordered the trial court

     to vacate defendant’s AUUW conviction and sentence. People v. Walker, No. 3-14-0022 (2016)

     (unpublished summary order under Supreme Court Rule 23(c)).

¶7          On January 23, 2015, defendant filed a pro se section 2-1401 petition, which is the

     subject of this appeal. The petition alleged that the firearm enhancement to his first degree

     murder sentence was void because it was not presented to the jury. The petition also alleged that

     the evidence was insufficient to prove his guilt for the offense of attempted murder of a peace


                                                      2

       officer. The petition did not include any allegations to explain why defendant filed the petition

       nearly 10 years after his conviction.

¶8            At a hearing on the petition, defendant requested counsel to represent him on his

       section 2-1401 petition. The trial court, in an exercise of its discretion, appointed counsel to

       represent defendant.

¶9            At the next hearing, appointed counsel informed the court that he had reviewed

       defendant’s petition, met with defendant, and discussed the petition with defendant. Counsel

       noted that, initially, it was unclear whether the public defender could be appointed to represent

       an indigent defendant in a section 2-1401 proceeding, however counsel told the court,

                      “Since then, I was appointed by [the public defender’s office] and then I went out

                      to the jail to discuss the options with [defendant] and I have reviewed it, the

                      petition with him. There’s really no procedural guideline here like under post-

                      conviction law, the State would either be given a chance to answer or to file a

                      motion to dismiss, but this is a 1401 and there’s really no—no standard here.”

¶ 10          The State then asked appointed counsel if he was adopting defendant’s pro se petition.

       Appointed counsel responded,

                      “[A]s to whether I’m adopting the 1401, there’s really no question of whether I

                      can adopt it or not. My—the duty I see under the case law that I’ve read is that I

                      just have to present his claims in court basically. So it’s—I’m—I’m basically

                      going to defend it.”

¶ 11          The parties agreed to continue the matter for a hearing. At the conclusion, the trial court

       noted that the instant case “really comes down to reviewing the transcript.” Appointed counsel

       replied, “Actually, Judge, I—I don’t—I mean unlike [Illinois Supreme Court Rule 651(c) (eff.


                                                         3

       Feb. 6, 2013)], which specifically governs post convictions, I don’t even think that that needs to

       be done in this situation.”

¶ 12          The court replied, “[M]aybe it’s not required to be done, but it seems like I mean

       somebody would probably want to review the transcripts. Okay.” The court concluded, “You

       don’t have to. I mean I guess you can make your arguments and I’ll review them, but okay.”

¶ 13          When the parties returned to court for the next hearing, the State asked for leave to file a

       motion to dismiss defendant’s petition. The court allowed the request and provided appointed

       counsel time to file a response to the State’s motion. Before the hearing concluded, appointed

       counsel told defendant that he would review the State’s motion, meet with defendant to discuss

       the motion, and discuss how to respond to the motion.

¶ 14          Next, the State filed its motion to dismiss. In the motion, the State argued that the petition

       was untimely. In addition, the State argued that the petition failed to allege any of the exceptions

       to excuse the untimely filing. Specifically, the State asserted,

                      “The judgment petitioner attacks in his 2-1401 petition was entered in 2006.

                      There is no claim either in the body of the petitioner’s filing, or in any affidavit,

                      that the petitioner is under a legal disability or duress, or the grounds for relief are

                      fraudulently concealed. Thus the petitioner’s petition must be dismissed as

                      untimely.”

¶ 15          Thereafter, appointed counsel filed a response to the State’s motion to dismiss. The

       response acknowledged that the petition was untimely. However, the response denied the

       allegations made in the State’s motion to dismiss that there was no basis alleged to excuse the

       untimely filing. The response did not expressly allege any excuse for the untimely filing.




                                                         4

¶ 16          The trial court then held a hearing on the State’s motion to dismiss. At the hearing, the

       State repeated its argument that the petition failed to allege that defendant was under a legal

       disability or duress or that the grounds for relief were fraudulently concealed. The State asserted

       that the petition was untimely and, therefore, should be dismissed.

¶ 17          In response, appointed counsel argued that the timeliness of the petition was factual in

       nature. According to counsel, therefore, it was inappropriate to raise the issue in a proceeding

       that was simply a matter of sufficiency of law. Appointed counsel asserted that “in the interest of

       justice,” defendant should be allowed “to testify as to the conditions of his cell and the

       conditions of his home institution at Menard and his inability to gain access to the investigative

       tools and materials necessary” to assert fraudulent concealment. According to appointed counsel,

       without any “specific powers of investigation,” his ability to claim fraudulent concealment was

       limited. Counsel, therefore, asked the court to deny the State’s motion to dismiss and set the

       matter for an evidentiary hearing.

¶ 18          In reply, the State asserted that appointed counsel’s argument was not a factual argument

       but merely a legal argument. The State noted that no exception to the time limitations period had

       been pled in defendant’s petition, and the court had no choice but to dismiss the petition. The

       trial court took the matter under advisement.

¶ 19          While under advisement, defendant filed a pro se response to the State’s motion to

       dismiss. In the response, defendant asserted that the two-year limitations period did not apply

       because he was challenging a void order. Defendant further asserted that he suffered from severe

       depression and was placed in the mental health unit in Menard Correctional Center shortly after

       his arrival in 2006. According to defendant, he remained in solitary confinement for four years

       while in the mental health unit. In 2014, defendant was removed from the mental health unit and


                                                         5

       placed in general population. Defendant further asserted that he was not given law books to use

       in filing his petition because they were not permitted to be removed from the law library.

¶ 20          On July 20, 2015, the trial court held a hearing in which it allowed the State’s motion to

       dismiss because defendant’s petition failed to make any showing of an excuse for its

       untimeliness. After the court announced its decision, appointed counsel stated that he was not

       adopting defendant’s pro se response to the State’s motion to dismiss. Counsel stated that he had

       read defendant’s response, and “there was nothing that I find I can add at this time to the matter.”

       Defendant filed a notice of appeal, and new counsel was appointed to represent him on appeal.

¶ 21          While on appeal, newly appointed counsel filed a motion to withdraw pursuant to

       Pennsylvania v. Finley, 481 U.S. 551 (1987). We denied the motion, and this appeal follows.

¶ 22                                              ANALYSIS

¶ 23          On appeal, defendant contends that his court-appointed counsel for his section 2-1401

       petition failed to provide adequate assistance. Specifically, defendant argues that counsel was

       inadequate for failing to amend his petition to overcome the procedural bar of timeliness.

       Because appointed counsel proceeded under the incorrect belief that he was not required to

       review the record or make any amendments to defendant’s pro se petition, we find counsel

       provided inadequate assistance.

¶ 24          Before discussing the adequacy of appointed counsel’s assistance, we first address the

       level of assistance required of counsel in a section 2-1401 proceeding. A section 2-1401 petition

       is brought under the Code. 735 ILCS 5/2-1401 (West 2008). Unlike the provisions of the Post-

       Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)), section 2-1401 does not

       provide for the appointment of counsel. Compare 725 ILCS 5/122-4 (West 2008), with 735 ILCS

       5/2-1401 (West 2008). Further, while the Act provides a statutory right to a reasonable level of


                                                        6

       assistance, section 2-1401 is silent on the requisite level of assistance guaranteed to a section 2­

       1401 petitioner. Although the supreme court has not specifically defined the required level of

       assistance appointed counsel must provide to a section 2-1401 petitioner, the decisions in Tedder

       v. Fairman, 92 Ill. 2d 216 (1982) and People v. Pinkonsly, 207 Ill. 2d 555 (2003) are instructive.

¶ 25          In Tedder, 92 Ill. 2d at 226, the supreme court held that although indigent criminal

       defendants may receive appointed counsel to represent them in civil actions, appointed counsel is

       not required in such civil proceedings. The Tedder court stated that the level of assistance

       required for appointed counsel in such instances is to exercise due diligence. Id. at 227. The

       court did not hold that appointed counsel must provide reasonable assistance analogous to that of

       counsel appointed in postconviction petition proceedings. Additionally, the court did not say that

       appointed counsel in civil proceedings must satisfy the requirements of Illinois Supreme Court

       Rule 651(c) (eff. Feb. 6, 2013). The court in Tedder ultimately concluded that the appointed

       attorneys were required to help the defendants amend their petitions because the trial court had

       found that their petitions were inadequate and had appointed counsel to address the deficient

       petitions. Tedder, 92 Ill. 2d at 226.

¶ 26          Subsequently, in Pinkonsly, defendant argued that appointed counsel in section 2-1401

       proceedings provided ineffective assistance under Strickland v. Washington, 466 U.S. 668

       (1984). Pinkonsly, 207 Ill. 2d at 560-68. Defendant contended that counsel was ineffective by

       failing to raise a specific lesser-included offense argument. Id. at 567. The Pinkonsly court first

       held that it was inappropriate to hold appointed counsel to the Strickland standard. Id. at 568. In

       reaching this conclusion, the supreme court noted:

                              “The defendant here is not a postconviction petitioner, but instead a

                      section 2-1401 petitioner. Section 2-1401 does not specify any level of assistance,


                                                         7

                      and the appellate court erroneously applied the Strickland standard to the

                      defendant’s claim that his section 2-1401 attorney was ineffective.” Id.

¶ 27          The Pinkonsly court went on to say,

                      “[a]ssuming that the defendant was entitled to the same level of assistance on his

                      section 2-1401 petition as on a postconviction petition, the defendant did not

                      receive unreasonable assistance. The defendant’s attorney was not unreasonable

                      for failing to raise a putative legal error in a proceeding where only fact errors are

                      cognizable.” Id.

       Notably, however, the Pinkonsly court did not state that appointed counsel in a section 2-1401

       proceeding must satisfy the reasonable assistance requirements reflected in Illinois Supreme

       Court Rule 651(c) (eff. Feb. 6, 2013). That is because the question presented was whether the

       Strickland standard applied in the section 2-1401 context. The court was not asked to decide

       whether the reasonable assistance standard applied to attorneys appointed in section 2-1401

       proceedings or in any other civil proceedings. Thus, it is arguably dicta that appointed counsel in

       a section 2-1401 proceeding is required to satisfy the reasonable assistance standard. Therefore,

       the question remains open as to whether appointed counsel must satisfy the due diligence

       standard under Tedder or the reasonable assistance standard under the dicta from Pinkonsly.

¶ 28          Following Pinkonsly, this court issued the opinion in People v. Welch, 392 Ill. App. 3d

       948 (2009), which—like the instant case—involved the adequacy of appointed counsel’s

       representation in a section 2-1401 proceeding. In Welch, the parties did not raise an issue as to

       the level of assistance to which a section 2-1401 petition is entitled. Instead, citing Pinkonsly this

       court “assume[d] that a section 2-1401 petitioner is entitled to the same level of assistance as a

       postconviction petitioner.” Id. at 952.


                                                         8

¶ 29          Although our consideration of the above cases would persuade us to find that a section 2­

       1401 petitioner who is appointed counsel is entitled to reasonable assistance, we need not reach

       this issue. As we will discuss below, we find that appointed counsel failed to provide adequate

       assistance under either standard (reasonable assistance or due diligence).

¶ 30                                         I. Reasonable Assistance

¶ 31          Here, appointed counsel operated on the belief that his only obligation to defendant was

       to present the specific claims found in defendant’s pro se petition. While this statement is true

       (People v. Pendleton, 223 Ill. 2d 458, 476 (2006) (appointed postconviction counsel is not

       obligated to raise new or novel claims outside defendant’s petition)), the reasonable assistance

       standard requires appointed counsel to make any amendments necessary for an adequate

       presentation of the issues found in the petition. See Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013);

       People v. Perkins, 229 Ill. 2d 34, 42 (2007). Stated another way, counsel does not have an

       obligation to raise new or novel claims, but he does have an obligation to ensure that any existing

       claims are properly presented to the court. In the postconviction context, this requires counsel to

       allege available facts to overcome the procedural bar of timeliness. See Perkins, 229 Ill. 2d at 44.

¶ 32          In this case, defendant filed his section 2-1401 petition beyond the two-year limitations

       period. Where a section 2-1401 petition is filed beyond two years after the judgment was

       entered, it cannot be considered. People v. Caballero, 179 Ill. 2d 205, 210 (1997). An untimely

       filed section 2-1401 petition, however, may be considered if the record conclusively shows that

       the person seeking relief is under legal disability or duress, the grounds for relief are fraudulently

       concealed, or the order is void. Id. at 211; People v. Thompson, 2015 IL 118151, ¶ 31.

       Defendant’s pro se petition also failed to allege any of the required basis for excusing an

       untimely filed petition. Therefore, on its face, defendant’s pro se petition was deficient.


                                                          9

¶ 33          Relying on the above deficiency, the State moved to dismiss defendant’s pro se petition

       because defendant failed to plead an excuse to overcome the procedural bar of timeliness.

       Despite this, appointed counsel did not amend the petition. Instead, appointed counsel simply

       filed a response generally denying the State’s assertion that there was no basis to excuse the

       untimely filing. Appointed counsel, however, was aware of defendant’s alleged inability to

       access legal materials at the prison law library due to frequent lockdowns. This allegation could

       have potentially been used to overcome the section 2-1401 procedural time bar. Appointed

       counsel was therefore required to amend defendant’s petition to allege this excuse.

¶ 34          Significantly, we note that appointed counsel thought this excuse had some merit because

       counsel sought an evidentiary hearing on this issue. The problem is that counsel was incorrect

       because a hearing would only be necessary if defendant pled any facts that would warrant such a

       hearing. PSI Resources, LLC v. MB Financial Bank, National Ass’n, 2016 IL App (1st) 152204,

       ¶ 29 (once the opposing party moves to dismiss on timeliness grounds, it was incumbent upon

       the responding party to set forth facts sufficient to avoid the statutory limitation). In other words,

       the excuse should have been pled in defendant’s petition or the response to the State’s motion so

       that the procedural bar could potentially be overcome and the matter could proceed to a hearing

       on the substantive claims in defendant’s petition. Since appointed counsel failed to recognize

       this, the court was required to dismiss the petition as untimely. Appointed counsel was, therefore,

       unreasonable for failing to amend the petition to allege available facts necessary to overcome the

       procedural bar of timeliness. Perkins, 229 Ill. 2d at 44.

¶ 35                                             II. Due Diligence

¶ 36          Although our supreme court has not specifically defined the requirements of due

       diligence (whether it is a lower standard than reasonable assistance), the court in Tedder found


                                                         10 

       that due diligence required appointed counsel to perform the tasks assigned by the court. Tedder,

       92 Ill. 2d at 226-27. In Tedder, that meant amending defendant’s pro se petition, which the court

       told counsel was inadequate. Id. at 227. In this case, in addition to counsel’s failure to address

       the procedural time bar, counsel also declined to review the transcripts from the proceedings in

       the face of the trial court’s instruction that a review of the transcripts was necessary to assist

       defendant in presenting his pro se petition. Appointed counsel’s actions taken together show that

       he made no effort to review defendant’s claims and provide the professional assistance the trial

       court deemed necessary to adequately represent defendant. The justification for appointing

       counsel in a section 2-1401 proceeding is to “ensure that prisoners have meaningful access to the

       courts.” Caruth v. Quinley, 333 Ill. App. 3d 94, 100 (2002) (Cook, J., dissenting). Given that

       counsel believed that he was not obligated review the transcripts, to amend—or even consider

       amending—defendant’s pro se petition, we cannot say that counsel exercised any diligence in

       assisting defendant. Because we find appointed counsel failed to satisfy the reasonable assistance

       and due diligence standards, we remand the matter for further proceedings and the appointment

       of new counsel.

¶ 37          In reaching this conclusion, we reject the State’s argument that appointed counsel

       provided adequate assistance because any argument to overcome the procedural bar of timeliness

       is without merit. The State also argues that the substantive issue raised in defendant’s pro se

       petition is without merit. These arguments ignore the fact that our supreme court has consistently

       held that remand is required where appointed counsel failed to fulfill the reasonable assistance

       requirements regardless of whether the claims raised in the petition had merit. People v. Suarez,

       224 Ill. 2d 37, 47 (2007) (collecting cases). We note that, after a review on remand, newly

       appointed counsel may very well determine that defendant’s claims lack merit. See People v.


                                                         11 

       Greer, 212 Ill. 2d 192, 205 (2004) (under Illinois Supreme Court Rule 137 (eff. July 1, 2013)

       appointed counsel “who determines that defendant’s claims are meritless cannot in good faith

       file an amended petition on behalf of defendant”). In such an instance counsel should move to

       withdraw. People v. Shortridge, 2012 IL App (4th) 100663, ¶ 14. If not, counsel should amend

       defendant’s petition to adequately present his pro se claims. Id. ¶ 13.

¶ 38                                             CONCLUSION

¶ 39          The judgment of the trial court of Kankakee County is reversed and remanded for further

       proceedings and the appointment of new counsel.

¶ 40          Reversed and remanded with directions.




                                                        12 

