Opinion filed June 4, 2014 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2014

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Henry County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-12-0580 v. ) Circuit No. 95-CF-318-2 ) ANDRES M. ELKEN, ) Honorable Larry S. Vandersnick, ) Honorable Charles H. Stengel, Defendant-Appellant. ) Judges, Presiding. _____________________________________________________________________________

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.

¶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,

(2000) (table) (unpublished order under

Supreme Court Rule 23).

2 ¶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 2007)), 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,

(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.

3 ¶ 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

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

4 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,

(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

5 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,

(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.

¶ 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.

6 ¶ 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,

(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,

7

(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,

(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

showing of a constitutional violation. People v. Coleman,

(1998).

Appointed counsel may seek leave to file an amended petition. People v. Blair,

(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,

(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,

(2001). If no

constitutional violation is shown, the petition is dismissed. People v. Tate,

. The denial of a postconviction petition without an evidentiary hearing is reviewed de novo.

People v. Marshall,

(2008).

¶ 30 In this instance, where counsel's actions at the second stage of representation are called

into question, People v. Greer,

(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

8 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,

(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]."

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.

¶ 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.)

.

¶ 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.

9 ¶ 33 In People v. Sherman,

(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.

. Absent defendant's presence, the court heard

counsel's motion.

. 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.

.

¶ 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.

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.

.

¶ 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,

, upon which

the defendant relied heavily, the respective courts stated that counsel unequivocally argued

10 against defendant's interests (Sherman,

) 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,

. 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.

11