No. 2-14-0509 Opinion filed March 30, 2016 ______________________________________________________________________________

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, ) ) v. ) No. 09-CF-365 ) CALVIN MEEKS, ) Honorable ) M. Karen Simpson, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

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

OPINION

¶1 Defendant, Calvin Meeks, appeals from the summary dismissal of his petition under the

Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)) for relief from

convictions of a single count each of home invasion (720 ILCS 5/12-11(a)(2) (West 2008)) and

unlawful restraint (720 ILCS 5/10-3(a) (West 2008)). In his petition, defendant claimed, inter

alia, that, because the attorney representing him in his direct appeal failed to file an appellate

brief, he did not receive the effective assistance of counsel in his direct appeal. We conclude that

the summary dismissal of the petition was error and we therefore reverse and remand for further

proceedings under the Act.

¶2 Defendant’s convictions were entered following a jury trial in the circuit court of Kane

County. Thereafter, defendant filed a motion for judgment notwithstanding the verdict or for a

new trial, but the trial court denied the motion and sentenced him to concurrent prison terms of

18 years for home invasion and 3 years for unlawful restraint. At trial, defendant was

represented by the Kane County public defender’s office. However, defendant retained a private

attorney, Liam Dixon, to represent him at the hearing on his posttrial motion, at sentencing, and

on direct appeal. Dixon filed a timely notice of appeal. As noted, however, he never filed an

appellant’s brief for defendant. As a result, we dismissed the appeal, with prejudice, on our own

motion. People v. Meeks, No. 2-11-0687 (Dec. 21, 2011) (minute order). Defendant then

retained different attorneys, who filed the postconviction petition giving rise to this appeal.

¶3 Under the Act, a person imprisoned for a crime may mount a collateral attack on his

conviction and sentence based on violations of his constitutional rights. People v. Erickson,

(1998). Within 90 days after a petition for relief under the Act is filed and

docketed, the trial court must examine the petition and either summarily dismiss it or docket it

for further proceedings. 725 ILCS 5/122-2.1 (West 2010). If the trial court finds that the

petition is “frivolous or is patently without merit,” the petition will be summarily dismissed. 725

ILCS 5/122-2.1(a)(2) (West 2010). Summary dismissal is proper if the petition “is based on an

indisputably meritless legal theory or a fanciful factual allegation.” People v. Hodges,

(2009). If the petition is not summarily dismissed, it advances to the next stage of the

proceedings, “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.” People v. Thomas,

. If the State does not move to dismiss the petition, or if its motion is

denied, the State must answer the petition, which then proceeds to an evidentiary hearing.

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People v. Shipp,

, ¶ 6. The summary dismissal of a petition under the

Act is subject to de novo review on appeal. Hodges,

.

¶4 It is firmly established that a criminal defendant has a constitutional right to the effective

assistance of counsel in an appeal as of right. Evitts v. Lucey,

(1985). “[A]

claim of ineffective assistance of counsel on appeal is cognizable under the *** Act [citation].”

People v. Mack,

(1995). Ordinarily, claims of ineffective assistance of

counsel are evaluated under the two-prong test set forth in Strickland v. Washington,

(1984), which requires a showing that counsel’s performance “fell below an objective

standard of reasonableness” and that the deficient performance was prejudicial in that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.”

. Where a claim of ineffective assistance of counsel

is predicated on appellate counsel’s failure to raise a particular issue, “the defendant must show

that ‘the failure to raise that issue was objectively unreasonable, as well as a reasonable

probability that, but for this failure, his sentence or conviction would have been reversed.’ ”

Mack,

(quoting People v. Caballero,

(1989)). But the

analysis that applies when counsel’s allegedly deficient performance consists of the failure to

raise a particular issue on appeal does not apply when counsel’s failure to prosecute the appeal

leads to its dismissal. See People v. Moore,

(1990). As stated in Moore,

“[A] criminal defendant must at some point be afforded the equivalent of direct review and an

appellate advocate; a court cannot deny a defendant an attorney-assisted appeal by examining the

record and determining that defendant would not have succeeded on appeal in any event.”

¶5 As an exhibit to his petition, defendant attached a letter to him from Dixon, dated

October 24, 2013. Dixon wrote that he had refunded the retainer for his services to defendant’s

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mother. Dixon recounted that he had previously sent defendant a draft of an appellate brief

prepared by Dixon’s law clerk. The brief evidently addressed the question of whether

defendant’s right to a speedy trial had been violated. However, according to Dixon’s letter, “the

speedy trial numbers did not work in [defendant’s] favor.” Dixon further advised defendant that

he had been working on a postconviction petition and “trying to find the alleged victim.” Dixon

indicated that “[t]he Petition was not filed because we needed a statement from the victim, and

have not been able to locate her.”

¶6 In the State’s view, this letter refutes defendant’s claim that Dixon’s performance was

unreasonable. According to the State, Dixon concluded that there was no meritorious basis for

arguing on appeal that defendant was not afforded a speedy trial. Quoting People v. Barnard,

(1984), the State contends that “it is not incompetence for [appellate]

counsel to refrain from raising issues which, in his judgment, are without merit, unless his

appraisal of the merits is patently wrong.” That is certainly true in cases like Barnard, in which

appellate counsel files a brief raising some issue or issues—counsel’s judgment as to what issues

to raise is entitled to deference. But where counsel unilaterally decides not to raise any issue on

the defendant’s behalf, effectively terminating the appeal, counsel has functionally ceased to

represent the defendant and a legal presumption of prejudice attaches. Penson v. Ohio,

(1988). Such cases are “unlike [cases] in which counsel fails to press a particular

argument on appeal, [citation], or fails to argue an issue as effectively as he or she might.”

¶7 The presumption of prejudice forecloses the State’s argument that Dixon’s performance

was reasonable. Under Strickland, prejudice is defined with reference to “counsel’s

unprofessional errors.” Strickland,

. If counsel has made no error, there can be

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no prejudice. Thus, where prejudice is presumed, error by counsel must likewise be presumed.

To hold otherwise would vitiate the holdings of Penson and Moore.

¶8 It is true that appellate counsel is ethically bound to refrain from raising issues of no

arguable merit. McCoy v. Court of Appeals of Wisconsin, District 1,

(1988).

However, even where counsel concludes that there is no arguably meritorious basis for an

appeal, counsel may not simply sit idly by and permit the appeal to be dismissed for want of

prosecution. Rule 1.3 of the Illinois Rules of Professional Conduct of 2010 provides that “[a]

lawyer shall act with reasonable diligence and promptness in representing a client.” Ill. R. Prof.

Conduct (2010) R. 1.3 (eff. Jan. 1, 2010). “Unless the relationship is terminated as provided in

Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client.” Ill.

R. Prof. Conduct (2010) R. 1.3, cmt 4. Rule 1.16(a)(1) provides, in pertinent part, that an

attorney shall withdraw from the representation of a client where “the representation will result

in violation of the Rules of Professional Conduct or other law.” Ill. R. Prof. Conduct (2010) R.

1.16(a)(1) (eff. Jan. 1, 2010).

¶9 To be sure, raising issues of no arguable merit on appeal would violate Rule 3.1 of the

Rules of Professional Conduct of 2010. Ill. R. Prof. Conduct (2010) R. 3.1 (eff. Jan. 1, 2010)

(“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless

there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith

argument for an extension, modification or reversal of existing law.”). However, if Dixon

concluded that he could not file an appellate brief on defendant’s behalf without violating Rule

3.1, he was ethically obligated to withdraw from representing defendant on appeal. Illinois

Supreme Court Rule 13(c)(2) (eff. July 1, 2013) provides, in pertinent part, that “[a]n attorney

may not withdraw his appearance for a party without leave of court and notice to all parties of

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record.” Dixon did not seek leave of this court to withdraw as appellate counsel; he remained

counsel of record for defendant, but apparently ceased to work on the appeal, choosing instead to

prepare a postconviction petition (which he did not file). Dixon’s apparent abdication of his

responsibility to pursue the appeal or to properly withdraw from representing defendant before

this court was objectively unreasonable.

¶ 10 As defendant notes, had Dixon been court-appointed rather than privately retained, leave

to withdraw would have been governed by the procedure set forth in Anders v. California,

(1967), which provides, in pertinent part, as follows:

“[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it,

he should so advise the court and request permission to withdraw. That request must,

however, be accompanied by a brief referring to anything in the record that might

arguably support the appeal. A copy of counsel’s brief should be furnished the indigent

and time allowed him to raise any points that he chooses; the court—not counsel—then

proceeds, after a full examination of all the proceedings, to decide whether the case is

wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the

appeal insofar as federal requirements are concerned, or proceed to a decision on the

merits, if state law so requires.”

Although we are unaware of any reported Illinois decision concerning the applicability of Anders

to retained counsel, we note that courts in a sister state—Texas—have held that Anders applies

only to appointed counsel. See, e.g., Lopez v. State,

(Tex. App. 2009).

Texas courts have held, however, that, when retained counsel encounters a frivolous appeal, he

or she must inform the court and seek leave to withdraw pursuant to the applicable court rule.

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¶ 11 We need not decide whether Anders applies to retained counsel. If it applies, Dixon was

required to file an Anders motion. If it does not, he was obliged either to obtain leave to

withdraw as counsel on appeal or to fulfill his duties as counsel by raising some issue on

defendant’s behalf in a properly filed appellate brief. Dixon took none of these actions.

¶ 12 In view of the foregoing, we conclude that defendant’s claim is not based on either an

“indisputably meritless legal theory or a fanciful factual allegation” (Hodges,

),

so it was error to summarily dismiss defendant’s postconviction petition. Accordingly, the case

must be remanded to the trial court for further proceedings. Defendant requests that on remand

he be permitted to file a late notice of appeal. Although that is an appropriate form of

postconviction relief where appellate counsel’s failure to prosecute a direct appeal leads to its

dismissal (People v. Brandon,

(1998)), such relief is premature at this

stage of the proceedings. We hold only that defendant’s petition should not have been

summarily dismissed. Thus, the petition should advance to the next stage, at which the petition

may be amended and the State may move to dismiss the petition or file an answer. We will not

attempt to anticipate what factual or legal defenses to the petition the State might be able to raise.

¶ 13 The judgment of the circuit court of Kane County is reversed and the cause is remanded

for further proceedings under the Act.

¶ 14 Reversed and remanded.

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