No. 1-20-0166 Order filed December 7, 2021 Second Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 16 CR 12274 ) ANTHONY STEPHENSON, ) Honorable ) Diane Gordon Cannon, Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Lavin and Cobbs concurred in the judgment.

ORDER

¶1 Held: We reverse the circuit court’s summary dismissal of defendant’s pro se postconviction petition, where defendant stated the gist of a claim that his plea counsel provided ineffective assistance by failing to file a motion to withdraw his guilty plea despite defendant’s request and counsel’s agreement to do so.

¶2 Defendant Anthony Stephenson appeals from the summary dismissal of his pro se petition

for relief filed pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West No. 1-20-0166

2020)). On appeal, he alleges that the circuit court erred in summarily dismissing his petition

because he stated the gist of a claim that his plea counsel was ineffective for failing to file a motion

to withdraw his guilty plea. We reverse and remand.

¶3 Defendant was charged by indictment with one count of armed habitual criminal (AHC),

two counts of aggravated discharge of a firearm, four counts of unlawful use or possession of a

weapon by a felon (UUWF), and four counts of aggravated unlawful use of a weapon premised on

an incident in Chicago on March 22, 2016. He agreed to plead guilty to one count of AHC, and

the State nol-prossed the remaining counts.

¶4 At the plea hearing on July 12, 2018, the circuit court admonished defendant that he could

receive up to a 30-year sentence and that the agreed sentence was 15 years for AHC. Defendant

confirmed that he understood he was giving up his right to a trial, that he had signed a jury waiver

relinquishing his right to a jury trial, and that he understood what a jury trial is. He also confirmed

that he had not been promised anything else in order to plead guilty and no one had threatened

him.

¶5 The factual basis supporting defendant’s guilty plea established that on March 22, 2016, at

about 2 p.m., in an alley at the 7700 block of North Paulina Street, Lyntrell Armstead and Jackson

approached defendant. 1 Defendant retrieved a semiautomatic handgun and fired at Armstead and

Jackson. Officers responded to the scene, recovered surveillance footage of the incident, and

arrested defendant. Armstead identified defendant from a photo array as the person who pointed

the firearm in the alley. Defendant had previously been convicted of armed robbery and UUWF.

1 Jackson’s first name does not appear in the record.

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¶6 The court accepted defendant’s guilty plea and sentenced him to 15 years’ imprisonment.

Defendant did not file a motion to withdraw his guilty plea or a direct appeal.

¶7 On October 1, 2019, defendant filed a pro se postconviction petition under the Act, alleging

that his plea counsel provided ineffective assistance by failing to file a motion to withdraw his

guilty plea despite his specific request that counsel do so. Defendant alleged that following the

entry of his guilty plea, he asked counsel to file a motion to withdraw his guilty plea. Counsel

asked why, and defendant responded he “felt he had no choice” but to plead guilty because counsel

“refused” to file a motion to quash his arrest as defendant requested. When counsel stated he found

no reason to bring a motion to quash, defendant told his counsel the police had no probable cause

to arrest him and no warrant. Counsel then “informed [defendant] that he’ll file the motion to

withdraw.” Defendant later learned neither the motion nor a notice of appeal was filed. Defendant

asserted that “a lawyer who disregards specific instructions from the defendant to file a notice of

appeal acts in a manner that is professionally unreasonable,” and the defendant “is entitled to a

new appeal without showing that his appeal would likely have had merit,” citing Rodriguez v.

United States,

(1969).

¶8 Defendant additionally alleged that his counsel provided ineffective assistance by failing

to file a motion to quash his arrest despite defendant’s request. Defendant argued his arrest was

unconstitutional because it was based on an investigative alert and not an arrest warrant, and police

had no probable cause for his arrest.

¶9 In support of his petition, defendant filed a notarized affidavit, averring that prior to

entering his guilty plea, he requested his counsel to file a “motion to quash arrest” because he was

arrested without a warrant, but counsel told him there was no ground for the motion. Defendant

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then “felt [he] had no choice but to enter a plea.” He further averred, “[u]pon entering the plea, I

had a conversation with counsel in the bullpen area of the jail and inform[ed] counsel I wanted to

withdraw my plea.” Counsel asked him why, and defendant explained that “it felt force[d]”

because counsel failed to file the motion to quash.

¶ 10 On December 10, 2019, the circuit court entered a written order summarily dismissing

defendant’s petition as frivolous and patently without merit. The court found defendant did not

claim his guilty plea was involuntary or unknowing and did not claim to have relied on counsel’s

advice regarding the likelihood of success of a motion to quash. Rather, the court found that

defendant specifically stated he disagreed with plea counsel’s advice but pleaded guilty anyway.

The court acknowledged the supreme court’s holding in People v. Edwards,

(2001),

that, where a petitioner asserts in first-stage postconviction proceedings that his attorney failed to

withdraw his plea and file an appeal, a petitioner need not set forth a successful basis for moving

to withdraw the plea or appeal. However, the circuit court found Edwards inapplicable because

defendant did set forth a basis for withdrawing his plea, and that basis was without merit. The court

also found that, in pleading guilty, defendant waived his constitutional claim that counsel was

ineffective for failing to file a motion to quash.

¶ 11 On appeal, defendant argues the circuit court erred in summarily dismissing his petition as

he stated the gist of a constitutional claim that his counsel failed to file a motion to withdraw his

guilty plea, despite agreeing to file the motion after defendant’s request.

¶ 12 The Act provides a three-stage method for persons under criminal sentence to “assert that

their convictions were the result of a substantial denial of their rights under the United States

Constitution or the Illinois Constitution or both.” People v. Hodges,

(2009). The

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circuit court summarily dismissed defendant’s postconviction petition at the first stage. At the first

stage of postconviction proceedings, “[t]he allegations of the petition, taken as true and liberally

construed, need only present the gist of a constitutional claim.” People v. Brown,

(2010). This standard presents a “low threshold,” and “[a] petitioner need present only a

limited amount of detail and is not required to include legal argument or citation to legal authority.”

(Internal quotation marks omitted.)

¶ 13 The Act authorizes the circuit court to summarily dismiss a petition at the first stage

through a written order where “the court determines the petition is frivolous or is patently without

merit.” 725 ILCS 5/122-2.1(a)(2) (West 2018). A postconviction petition is “frivolous or patently

without merit” where it “has no arguable basis either in law or in fact.” Hodges,

-

12. A petition lacks an arguable basis in law or in fact where it “is based on an indisputably

meritless legal theory or a fanciful factual allegation.”

. “An example of an indisputably

meritless legal theory is one which is completely contradicted by the record,” and “[f]anciful

factual allegations include those which are fantastic or delusional.”

. We review de

novo the summary dismissal of a postconviction petition. People v. Tate,

.

¶ 14 We agree with defendant that the circuit court erred in summarily dismissing his

postconviction petition as he stated the gist of a constitutional claim that his counsel was

ineffective for failing to file a motion to withdraw his guilty plea after agreeing to do so.

¶ 15 Under the sixth amendment to the United States Constitution (U.S. Const., amend. VI), a

criminal defendant has the right “to effective assistance of trial counsel at all critical stages of the

criminal proceedings, including the entry of a guilty plea.” People v. Brown,

.

To prevail on an ineffective assistance claim, a defendant must establish that (1) “counsel’s

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performance was objectively unreasonable under prevailing professional norms,” and (2) “there is

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

would have been different.’ ” People v. Cathey,

(quoting Strickland v.

Washington,

(1984)). At the first stage of postconviction proceedings, “a

petition alleging ineffective assistance may not be summarily dismissed if (i) it is arguable that

counsel’s performance fell below an objective standard of reasonableness and (ii) it is arguable

that the defendant was prejudiced.” (Emphases and internal quotation marks omitted.) Tate,

.

¶ 16 Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) provides that no appeal upon a

negotiated guilty plea shall be taken unless the defendant first files in the trial court a motion to

withdraw the plea of guilty and vacate the judgment. If the motion is granted, the trial court is to

vacate the judgment and permit the defendant to withdraw the plea of guilty and plead anew or go

to trial.

If it is denied, the defendant may file a notice of appeal within 30 days after the entry

of the order denying the motion. Id.; Ill. S. Ct. R. 606 (eff. July 1, 2017) (30-day period).

¶ 17 In his postconviction petition, defendant alleged he asked plea counsel to file a motion to

withdraw the guilty plea, counsel stated he would file the motion, and counsel then failed to file

the motion. These allegations are not rebutted by the record on appeal. Taking them as true and

construing them liberally, as we must (Brown,

), we find defendant stated the gist

of an ineffective assistance of counsel claim. Filing of a Rule 604(d) motion to withdraw is a

procedural requirement for bringing a direct appeal. Ill. S. Ct. R. 604(d) (eff. July 1, 2017). Thus,

counsel’s failure to file the motion to withdraw the guilty plea as he agreed to do resulted in

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forfeiture of defendant’s right to appeal his plea, falling short of competent representation. See

People v. Wilk,

(1988); Edwards,

.

¶ 18 At the first stage of postconviction proceedings brought by a pro se defendant, prejudice is

presumed from trial counsel’s failure to file a requested motion to withdraw a guilty plea. Edwards,

. Thus, defendant was not required to establish that any motion to withdraw or

subsequent direct appeal would have been successful.

(at the first stage of

postconviction proceedings, a pro se defendant “cannot be expected to specify the grounds for

[his] appeal and show that they have some merit” (internal quotation marks omitted) and need not

set forth a reason for moving to withdraw a guilty plea). Because filing a Rule 604(d) motion to

withdraw is a procedural requirement for bringing a direct appeal, to place a burden upon a pro se

defendant to recognize errors in the plea process in order to survive summary dismissal “would

inevitably result in certain defendants being improperly denied any meaningful review of plea

proceedings, despite the constitutional right to a direct appeal.” (Emphasis in original.)

.

¶ 19 The State asserts that Edwards was based on the fact that the record did not show that the

defendant’s plea counsel consulted with the defendant about filing a motion to withdraw. See

Edwards,

. Therefore, the State urges that we find Edwards inapplicable

because here defendant specifically alleged that he consulted his attorney about withdrawing his

plea.

¶ 20 We are not persuaded by the State’s argument, as defendant alleged that his counsel

actually agreed to file a motion to withdraw but never did so. In other words, defendant does not

claim that his counsel consulted with him and made the decision that a motion to withdraw would

not succeed. Rather, he claims that counsel stated he would file a motion to withdraw but failed to

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do so. As mentioned, we must take defendant’s allegations as true at the first stage of

postconviction proceedings. Brown,

. Necessarily, if counsel agreed to file a

motion to withdraw, counsel determined there was possible merit to such a motion, whether on

defendant’s claimed ground or another ground. Counsel’s failure to then file the motion was

arguably unreasonable and prejudicial to defendant.

¶ 21 The State also argues that Edwards is inapplicable here because the defendant in Edwards

alleged no grounds for withdrawing his plea, while here defendant did articulate a reason for

withdrawing his plea, and that reason lacked merit. However, as the court in Edwards recognized,

a pro se defendant cannot be expected to “recognize both legal and factual errors in the plea process

in order to survive summary dismissal on post-conviction.”

; see also People v. Niffen,

(applying Edwards and reversing the circuit court’s

summary dismissal of the defendant’s petition, where the defendant alleged that his counsel failed

to file a motion to withdraw his negotiated guilty plea after the defendant requested that counsel

do so based on issues with his sentence and the factual basis for his plea).

¶ 22 We note that defendant attached to his petition only his own affidavit in support of his

allegation that he requested counsel to file a motion to withdraw the guilty plea, and no other

supporting documentation. Pursuant to section 122-2, allegations in a postconviction petition must

be supported by affidavits, records, or other evidence, and if documentation is not attached, the

petition must explain why it is unavailable. 725 ILCS 5/122-2 (West 2018). The purpose of section

122-2 is to show that the allegations in a postconviction petition are capable of objective or

independent corroboration. People v. Hall,

(2005). Defendant’s own affidavit

cannot provide independent corroboration of his postconviction allegations (People v. Teran, 376

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(2007)), and his petition does not explain why he presented no supporting

documentation as required by section 122-2.

¶ 23 However, “[f]ailure to attach independent corroborating documentation or explain its

absence may *** be excused where the petition contains facts sufficient to infer that the only

affidavit the defendant could have furnished, other than his own sworn statement, was that of his

attorney.” Hall,

. Such an inference arises here, where the allegations in

defendant’s postconviction petition and affidavit demonstrate the ineffective assistance of counsel

claim arose from private consultations between defendant and plea counsel. The only possible

independent corroborating documentation would be an affidavit from defendant’s own attorney,

and the difficulty or impossibility of obtaining such an affidavit is self-apparent. People v.

Williams,

(1970). Thus, defendant’s failure to comply with section 122-2 by

providing objective or independent corroboration is excused, and does not warrant summary

dismissal of his postconviction claim. People v. Sanabria,

(recognizing the exception set forth in Hall in the first stage of proceedings under the Act).

¶ 24 Accordingly, we find that defendant stated the gist of a constitutional claim that his counsel

provided ineffective assistance by failing to file a motion to withdraw his guilty plea and preserve

his right to appeal. The circuit court erred in summarily dismissing defendant’s postconviction

petition at the first stage of postconviction proceedings, and we remand for second stage

proceedings. As the Edwards court noted, at the second stage, defendant will need to make a

substantial showing of a constitutional claim, which will “necessarily entail some explanation of

the grounds that could have been presented in the motion to withdraw the plea.” Edwards,

.

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¶ 25 For the foregoing reasons, we reverse the judgment of the circuit court and remand for

second-stage proceedings under the Act.

¶ 26 Reversed and remanded.

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