# People v. Edwards

> Illinois Supreme Court · September 20, 2001 · 197 Ill. 2d 239

URL: https://www.frixlaw.com/law-library/cases/9861899

## Case

- **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DONALD EDWARDS, Appellant
- **Court:** Illinois Supreme Court
- **Decided:** September 20, 2001
- **Citations:** 197 Ill. 2d 239; 258 Ill. Dec. 753; 757 N.E.2d 442; 2001 Ill. LEXIS 1067
- **Precedential status:** Published
- **Opinion:** Dissent by Garman
- **Judges:** McMorrow, Fitzgerald, Garman, Thomas
- **Cited by:** 877 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9861899

## How later opinions describe it (automated extraction)

- finding that the defendant’s petition had stated the “gist” of a claim by alleging at least one factual element, but affirming summary dismissal on the grounds that the petition was “ ‘so completely lacking in substance that it [was] frivolous [and] patently without merit’ ” a…
- finding summary dismissal was improper, where the defendant alleged in his postconviction petition that his counsel ineffectively failed to withdraw his guilty plea but did not allege grounds for withdrawing the guilty plea
- explaining that a postconviction petition is frivolous or patently without merit when the allegations, taken as true and liberally construed, fail to present the “ ‘gist of a constitutional claim’ ”
- rejecting first-stage test that - 12 - No. 1-22-0128 would have required defendants to file a factually complete petition that would support all elements of the claim
- finding that the record was insufficient to allow dismissal at the first stage

## Opinion text

JUSTICE GARMAN, dissenting:
I believe the trial court correctly dismissed defendant’s pro se post-conviction petition as frivolous and patently without merit because the petition failed to allege grounds for the withdrawal of defendant’s guilty plea.
The Post-Conviction Hearing Act (Act) (725 ILCS 5/122 — 1 et seq. (West 1998)) limits a defendant to constitutional challenges of the proceedings that resulted in his conviction. A post-conviction proceeding is a collateral attack on a prior conviction and sentence and “is not a substitute for, or an addendum to, direct appeal.” People v. Kokoraleis, 159 Ill. 2d 325, 328 (1994). In such a proceeding, the defendant bears the burden of establishing a substantial deprivation of his constitutional rights. People v. Guest, 166 Ill. 2d 381, 389 (1995). As noted by the majority, under the Act, a post-conviction proceeding not involving the death penalty is divided into three stages. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). At the first stage, the trial court examines the defendant’s post-conviction petition and shall dismiss the petition if it is frivolous or patently without merit. 725 ILCS 5/122 — 2.1(a) (West 1998). At this stage, the petition need only present the “gist” of a constitutional claim. Gaultney, 174 Ill. 2d at 418 . If the petition survives first-stage dismissal, it will advance to the second stage, where the court must determine whether the defendant has made a substantial showing of a violation of his constitutional rights. At this stage, the trial court shall appoint counsel, if necessary, to represent an indigent defendant. 725 ILCS 5/122 — 4 (West 1998). If the post-conviction petition advances to the third stage, the trial court will conduct an evidentiary hearing. 725 ILCS 5/122 — 6 (West 1998); Gaultney, 174 Ill. 2d at 418 .
In his pro se post-conviction petition, defendant alleged that his trial counsel “had taken it or decided for herself not to file an appeal, in spite of [his] numerous requests to [do so].” The trial court determined that this allegation was one of ineffective assistance of counsel. On appeal to this court, defendant contends that he was denied the effective assistance of counsel because counsel failed to perfect his right to appeal by filing a motion to withdraw his guilty plea. To establish ineffective assistance of counsel, a defendant must show that (1) his counsel’s representation fell below an objective standard of reasonableness and (2) counsel’s deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 697-98 , 80 L. Ed. 2d 674, 693 , 104 S. Ct. 2052, 2064 (1984).
The determinative fact in this case is defendant’s choice to plead guilty. Entering a guilty plea is a “ ‘grave and solemn act.’ ” People v. Evans, 174 Ill. 2d 320, 326 (1996), quoting Brady v. United States, 397 U.S. 742, 748 , 25 L. Ed. 2d 747, 756 , 90 S. Ct. 1463, 1468 (1970). It is not a “ ‘temporary and meaningless formality reversible at the defendant’s whim.’ ” Evans, 174 Ill. 2d at 326 , quoting United States v. Barker, 514 F.2d 208, 221 (D.C. Cir. 1975). In Illinois, a defendant who pleads guilty is not entitled to a direct appeal from his conviction and sentence. To challenge his guilty plea, the defendant must first file with the trial court á motion to withdraw his plea and vacate the judgment against him. This motion “shall be in writing and shall state the grounds therefor.” 188 Ill. 2d R. 604(d). If the defendant’s motion to withdraw his plea is allowed, the plea of guilty, sentence, and judgment will be vacated and a trial date will be set. 188 Ill. 2d Rs. 605(b)(3), 604(d). In this instance, there is no appeal. If, on the other hand, the motion is denied, only that decision can be considered on review. Evans, 174 Ill. 2d at 329 . Further, a voluntary guilty plea waives all nonjurisdictional errors or irregularities. People v. Peeples, 155 Ill. 2d 422, 491 (1993); People v. Horton, 143 Ill. 2d 11, 22 (1991); People v. Del Vecchio, 105 Ill. 2d 414, 433 (1985); see also 5 W. LaFave, J. Israel & N. King, Criminal Procedure § 21.6 (2d ed. 1999).
Unlike the defendant who is convicted pursuant to a guilty plea, the defendant who chooses to go to trial and is convicted has an automatic right to an appeal. 1 The defendant who chooses to be tried maintains his innocence. As the appellate court noted, “[f]or a defendant convicted after trial, who has always professed innocence, the right to appeal insures due process and provides an important safety net to those who may have been wrongly convicted.” 305 Ill. App. 3d 853, 858 . The defendant who appeals from a conviction following a trial may raise any issue on appeal as long as that issue has been properly preserved. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (both a trial objection and a written post-trial motion raising the issue are required to preserve alleged errors).
Thus, when a defendant, convicted after trial, asks his attorney to file a notice of appeal and the attorney fails to do so, that defendant’s right to appeal has been violated. This is what occurred in Rodriquez v. United States, 395 U.S. 327 , 23 L. Ed. 2d 340 , 89 S. Ct. 1715 (1969). There, the Supreme Court rejected the notion that the defendant’s post-conviction petition, in which he alleged “that his retained counsel had fraudulently deprived him of his right to appeal,” needed to specify the points he would raise on appeal. Rodriquez, 395 U.S. at 329 , 23 L. Ed. 2d at 343 , 89 S. Ct. at 1716 . The Court noted that “[tjhose whose right to appeal has been frustrated should be treated exactly like any other appellants; they should not be given an additional hurdle to clear just because their rights were violated at some earlier stage in the proceedings.” Rodriquez, 395 U.S. at 330 , 23 L. Ed. 2d at 344 , 89 S. Ct. at 1717 .
Similarly, in Roe v. Flores-Ortega, 528 U.S. 470 , 145 L. Ed. 2d 985 , 120 S. Ct. 1029 (2000), the defendant was denied his right to appeal by counsel’s failure to file a notice of appeal. The defendant entered a plea of guilty pursuant to a California rule that permitted him both to deny committing a crime and to admit the evidence was sufficient to convict him. The trial judge advised the defendant of his right to file an appeal within 60 days. Counsel failed to file a notice of appeal within the requisite period and the defendant’s subsequent pro se notice was rejected as untimely. Then, the defendant filed a petition for federal habeas corpus relief pursuant to section 2254 of the United States Code ( 28 U.S.C. § 2254 (1994)), alleging constitutionally ineffective assistance of counsel based on his counsel’s failure to file a notice of appeal after she promised to do so. Flores-Ortega, 528 U.S. at 474 , 145 L. Ed. 2d at 993 , 120 S. Ct. at 1033 . The majority concludes that in Flores-Ortega, “the Supreme Court rejected the proposition that Rodriquez is limited to those cases where a defendant’s conviction is obtained following a trial.” 197 Ill. 2d at 250. I disagree with this conclusion.
The Flores-Ortega decision was premised on the performance prong of the test for ineffective assistance of counsel. The question presented in the case was whether counsel is deficient for failing to file a notice of appeal when the defendant has not clearly conveyed his wishes one way or the other. Flores-Ortega, 528 U.S. at 477 , 145 L. Ed. 2d at 995 , 120 S. Ct. at 1035 . The majority correctly notes that “the question at ‘the heart of the case’ was ‘[ujnder what circumstances does counsel have an obligation to consult with the defendant about an appeal?’ ” 197 Ill. 2d at 251, quoting Flores-Ortega, 528 U.S. at 478 , 145 L. Ed. 2d at 996 , 120 S. Ct. at 1035 . The Court, however, also discussed the prejudice prong of Strickland. The Court held that assuming the defendant’s counsel was deficient under the first prong, that deficiency completely deprived the defendant of appellate proceedings he wanted and “to which he had a right.” Flores-Ortega, 528 U.S. at 483 , 145 L. Ed. 2d at 999 , 120 S. Ct. at 1038 . This denial required a presumption of prejudice under the second prong. Flores-Ortega, 528 U.S. at 483 , 145 L. Ed. 2d at 999 , 120 S. Ct. at 1038 . The Court noted that the prejudice standard “breaks no new ground, for it mirrors the prejudice inquiry applied in *** Rodriquez v. United States.” Flores-Ortega, 528 U.S. at 485 , 145 L. Ed. 2d at 1000 , 120 S. Ct. at 1039 . This prejudice standard is inapplicable to the case at bar because a defendant who pleads guilty in Illinois is not entitled to an appeal.
The defendant in Flores-Ortega entered a plea of guilty pursuant to California law. In California, a defendant convicted following a plea of guilty “shall, within 60 days after the judgment is rendered, file as an intended notice of appeal the statement required by section 1237.5 of the Penal Code; but the appeal shall not be operative unless the trial court executes and files the certificate of probable cause required by that section.” Cal. Rules of Court, R. 31(d) (2001). Section 1237.5 of the California Penal Code provides:
“No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty *** except where both of the following are met:
(a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional or other grounds going to the legality of the proceedings.
(b) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk.” Cal. Penal Code § 1237.5 (West 2000).
California law, unlike the law of this state, does not require a defendant to file a motion to withdraw his guilty plea. Although a defendant in California must comply with section 1237.5’s written statement and certificate of probable cause requirements, the defendant maintains his right to appeal. Further, he maintains the right to assert on appeal any “reasonable constitutional, jurisdictional or other grounds going to the legality of the proceedings.” Cal. Penal Code § 1237.5 (a) (West 2000).
In contrast, the Illinois defendant is not entitled to directly appeal his conviction'and sentence following a plea of guilty. As previously noted, Rule 604(d) requires him to first file a motion with the trial court to withdraw his plea. If the defendant is allowed to withdraw his plea, the plea, sentence, and judgment will be vacated and the defendant will proceed to trial. If the motion is denied, the defendant may then appeal only the denial of that motion. Therefore, in Illinois, even when a defendant who has been convicted pursuant to a guilty plea requests his attorney to file a motion to withdraw his guilty plea, the attorney’s failure to do so is not a per se violation of the defendant’s right to appeal.
This court’s decision in People v. Wilk, 124 Ill. 2d 93 (1988), is instructive on the issue presented in this case. In Wilk, the defendants pled guilty to various charges and defense counsel filed notices of appeal. Defense counsel, however, failed to file motions to withdraw defendants’ guilty pleas pursuant to Rule 604(d). We held that Rule 604(d) serves as a condition precedent for an appeal from a defendant’s guilty plea. Wilk, 124 Ill. 2d at 105 . The defendants, however, were not without a remedy. The remedy could be found in the Act:
“[I]n a post-conviction petition, the defendant pro se needs only to allege a violation of his sixth amendment right to effective assistance of counsel, due to the attorney’s failure to preserve appeal rights, and allege whatever grounds he or she would have had to withdraw his or her plea of guilty had a proper motion to withdraw been filed by defendant’s counsel prior to the filing of a notice of appeal. At the hearing on the post-conviction petition, the two-pronged test laid down in Strickland v. Washington will apply to determine if in fact the defendant has been deprived of effective assistance of counsel.” (Emphasis added.) Wilk, 124 Ill. 2d at 107-08 .
A defendant who pleads guilty in this state voluntarily places himself in a different position from a defendant who is convicted after trial. The defendant who pleads guilty has given up his right to appeal unless he has grounds to withdraw his plea. When a judgment is entered upon a plea of guilty, the defendant is put on notice that, to challenge the judgment, he must provide grounds for the withdrawal of his plea. 188 Ill. 2d R. 605(b). If the defendant’s motion to withdraw his plea is granted and the defendant is subsequently convicted after trial, he may then appeal that conviction. Consequently, the defendant who pleads guilty must state grounds for the withdrawal of his plea at the first stage of post-conviction if he alleges that he was denied the effective assistance of counsel by counsel’s failure to perfect an appeal. He must state more than just that his attorney did not file an appeal. Here, defendant has not alleged enough.
The majority’s conclusion essentially eliminates the first stage of post-conviction when a defendant alleges he was denied an appeal due to ineffective assistance of counsel; whether the defendant pleaded guilty or was convicted after trial. The petition, according to the majority, need only allege that the defendant requested counsel to file an appeal and that counsel failed to do so. These petitions will automatically proceed to the second stage of post-conviction where the trial court will appoint counsel.
The majority’s holding pláces defendants convicted after pleading guilty and defendants convicted after trial on equal footing in post-conviction proceedings where it is alleged that counsel deprived a defendant of appellate proceedings. I cannot agree with this result. Defendant failed to state a claim for ineffective assistance of counsel because he failed to allege grounds for the withdrawal of his guilty plea. Therefore, I respectfully dissent.
JUSTICE THOMAS joins in this dissent.
Appeals, however, must be perfected by filing a notice of appeal with the clerk of the trial court within 30 days after the entry of the final judgment appealed from. In cases in which a death sentence is imposed, an appeal is automatically perfected without any action by the defendant or his counsel. 188 Ill. 2d R. 606(b).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9861899. Public record. Not legal advice.