{ "id": 171726, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAMON McKENZIE, Defendant-Appellant", "name_abbreviation": "People v. McKenzie", "decision_date": "2001-07-13", "docket_number": "No. 3\u201499\u20140565", "first_page": "592", "last_page": "597", "citations": [ { "type": "official", "cite": "323 Ill. App. 3d 592" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "464 N.E.2d 1144", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "124 Ill. App. 3d 974", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3431390 ], "year": 1984, "pin_cites": [ { "page": "978" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/0974-01" ] }, { "cite": "521 N.E.2d 1158", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "1160-61" }, { "page": "1161" } ], "opinion_index": 0 }, { "cite": "122 Ill. 2d 64", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549473 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "72-73" }, { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0064-01" ] }, { "cite": "579 N.E.2d 417", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "which were decided in reliance on Robinson" } ], "opinion_index": 0 }, { "cite": "219 Ill. App. 3d 209", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5798287 ], "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "which were decided in reliance on Robinson" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/219/0209-01" ] }, { "cite": "573 N.E.2d 842", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1991, "opinion_index": 0 }, { "cite": "214 Ill. App. 3d 420", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5297671 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/214/0420-01" ] }, { "cite": "734 N.E.2d 26", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "315 Ill. App. 3d 454", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980666 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0454-01" ] }, { "cite": "732 N.E.2d 649", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "659" } ], "opinion_index": 0 }, { "cite": "314 Ill. App. 3d 335", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140107 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/314/0335-01" ] }, { "cite": "735 N.E.2d 185", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "315 Ill. App. 3d 968", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980644 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0968-01" ] }, { "cite": "741 N.E.2d 679", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "681" } ], "opinion_index": 0 }, { "cite": "317 Ill. App. 3d 905", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1025927 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "906" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0905-01" ] }, { "cite": "234 N.E.2d 223", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "183 Ill. 2d 540", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209977 ], "year": 1998, "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0540-01" ] }, { "cite": "513 N.E.2d 603", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1987, "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 366", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3650335 ], "weight": 3, "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0366-01" ] } ], "analysis": { "cardinality": 622, "char_count": 12186, "ocr_confidence": 0.792, "pagerank": { "raw": 8.649851333978211e-08, "percentile": 0.49139216224575255 }, "sha256": "90d72d90fb2a95952808f9dd9c1d0dc28c5c0bfad2ed9d38400bc10f377fafc0", "simhash": "1:71e78cbe13533b86", "word_count": 1960 }, "last_updated": "2023-07-14T16:00:03.625992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAMON McKENZIE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McDADE\ndelivered the opinion of the court:\nDefendant, Damon McKenzie, appeals from the dismissal of his postconviction petition at the second stage of the statutory procedures established in section 122\u20141 of the Post-Conviction Hearing Act (725 ILCS 5/122\u20141 (West 1998)). We reverse, specifically overruling this court\u2019s 1987 decision in People v. Robinson, 160 Ill. App. 3d 366, 513 N.E.2d 603 (1987), and its progeny.\nFACTS\nDamon McKenzie was indicted in Will County for the murder of Peter Luckett on October 24, 1994. He entered a negotiated plea of guilty to first degree murder and was sentenced on January 17, 1995, to 30 years\u2019 imprisonment.\nTwo years later, defendant filed a pro se postconviction petition pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122\u20141 (West 1998)), alleging that his attorney had not advised him of an available defense which could have reduced his crime to second degree murder. He asserted that his guilty plea on first degree murder was, therefore, involuntary and should be vacated.\nAfter review of defendant\u2019s petition, the trial court found that it presented a \u201cpossible justiciable issue\u201d and appointed counsel on May 9, 1997, to represent defendant in the postconviction proceedings. The appointed attorney filed an appearance on June 25, 1997, indicating that he had reviewed the petition and consulted with his client and seeking a continuance to prepare an amended petition. Additional continuances were secured by or on behalf of defendant\u2019s appointed counsel on July 16, 1997; August 6, 1997; October 1, 1997; October 22, 1997; and November 24, 1997. On January 12, 1998, counsel advised the court that he believed defendant\u2019s petition was frivolous and was granted leave to file a motion so indicating.\nOn March 18, 1998, counsel moved to withdraw, asserting there was no meritorious basis for the relief sought by defendant. Defendant did not object to the withdrawal. The motion was granted and defendant was given time to amend his petition pro se.\nApparently feeling that supplementation of the petition was beyond him, defendant moved for appointment of new counsel or, alternatively, to have the prior motion to withdraw stricken. Noting that it had already allowed withdrawal, without objection by defendant, the court denied the motion.\nEleven months later, on March 8, 1999, defendant filed an amended pro se petition arguing the viability of self-defense in his case and asserting once again that his trial counsel had been ineffective. He reiterated his entitlement to a trial in which second degree murder was presented for the jury\u2019s consideration.\nThe State moved to dismiss defendant\u2019s petition and the motion was set for a hearing on July 19, 1999. Following argument by defendant and the prosecutor, the court noted that defendant had no documentary support for his claim of ineffective assistance beyond his own affidavit. The judge then reviewed the facts included in defendant\u2019s proffer at the time of his guilty plea in 1995 and concluded that he was unable to find any evidence in the record to show that advice from his trial attorney concerning self-defense would have had any effect. The court, observing that \u201cvery competent\u201d appointed counsel had found no merit in the petition and had withdrawn, granted the State\u2019s motion to dismiss defendant\u2019s postconviction petition.\nDefendant filed a timely appeal of this dismissal.\nANALYSIS\nDefendant did not take a direct appeal from his conviction in 1995 and was compelled to seek relief from the conviction and sentence, if at all, through the statutory procedures of the Post-Conviction Hearing Act (725 ILCS 5/122\u20141 et seq. (West 1998)) (the Act). The Act creates for him a right to reasonable assistance of counsel in postconviction proceedings. At issue in this case is when that right accrues and whether, having accrued, it can be withdrawn during the course of the proceedings.\nThis appeal presents an issue of statutory construction, which is a question of law. Consequently, we review the issue de nova. Department of Public Aid v. Brewer, 183 Ill. 2d 540, 554, 234 N.E.2d 223 (1998).\nWe begin with an acknowledgment that this court has considered this issue on three previous occasions and that the procedures followed by the Will County circuit court were vindicated in those earlier decisions. For reasons that will become apparent, we fully reconsider the issue at this time.\n\u20221 The Act creates a three-step process for seeking postconviction relief. The first stage is completed when the trial court determines that the defendant\u2019s pro se petition is not frivolous but, rather, states the essence of a potentially meritorious constitutional claim. People v. Lara, 317 Ill. App. 3d 905, 741 N.E.2d 679 (2000). In the present case, the trial court found \u201ca possible justiciable issue\u201d in McKenzie\u2019s petition, thereby satisfying step one. At that point, defendant\u2019s statutory right to counsel attached. People v. Patton, 315 Ill. App. 3d 968, 735 N.E.2d 185 (2000).\nStep two begins with the mandatory appointment of counsel by the court if defendant makes the request and if it appears to the court\u2019s satisfaction that defendant lacks means to hire an attorney. Lara, 317 Ill. App. 3d at 906, 741 N.E.2d at 681. It is the duty of appointed counsel to consult with defendant about his constitutional claim, examine the record, and amend the pro se petition as necessary to present a reasonable articulation of those claims to the court. People v. Whitford, 314 Ill. App. 3d 335, 732 N.E.2d 649 (2000). The State may answer or seek dismissal of the petition and defense counsel replies to those arguments. Whitford, 314 Ill. App. 3d at 346, 732 N.E.2d at 659. Nothing in the plain language of the statute permits the attorney, once appointed, to seek withdrawal or authorizes the court to grant such a request.\n\u20222 Nonetheless, the trial court did allow defendant\u2019s appointed attorney to withdraw. Defendant, without statutory authority, was deprived of counsel and compelled to amend his pro se petition without reasonable assistance from a trained professional. Indeed, the attorney affirmatively undermined defendant\u2019s claims and provided the court with some justification for dismissing his client\u2019s petition. Defendant\u2019s unaided ineptitude resulted in a flawed presentation of any viable argument he may have had. Moreover, the withdrawal of his attorney, asserting that there was no meritorious basis for defendant\u2019s petition, seriously prejudiced the postconviction process as it was constructed by the legislature.\nIf the motion to dismiss had been denied, defendant also would not have had reasonable assistance in preparing for and participating in the evidentiary hearing which is the core of stage three of the statutory process. He would not have had help, as contemplated in the statute, in preparing or securing documents, presenting or cross-examining witnesses, or making objections and submitting evidence.\nDefendant has argued, persuasively we believe, that by allowing his appointed counsel to withdraw, the trial court has effectively recast a statute that nowhere authorizes such withdrawal. Because the Post-Conviction Hearing Act has created procedures and remedies not provided for by the common law, it must be strictly construed in such a way that they are neither restricted nor enlarged beyond what the legislature fashioned. Recently, in the case of People v. Rivera, 315 Ill. App. 3d 454, 734 N.E.2d 26 (2000), this court considered whether there was any provision in the Post-Conviction Hearing Act that permitted a trial court to dismiss part but not all of defendant\u2019s petition. In the absence of any language authorizing a partial dismissal, we held that the court must examine and evaluate the petition as a whole and, if it states the gist of a meritorious claim, the petition must proceed to the second stage as a whole.\nIt appears from our review of the Act that the legislature intended to create procedures to give a convicted defendant a last-ditch opportunity to change the outcome of his criminal case. It also appears, from the legislators\u2019 decision not to provide for withdrawal, that they intended for the defendant to have the assistance of trained counsel throughout the process. We, therefore, conclude from the absence of authorizing language that withdrawal of appointed counsel is in contravention of the statute and the dismissal of defendant\u2019s pro se petition must be reversed.\nThe State argues, however, that a trial court\u2019s decision to grant a motion to withdraw has been upheld on three separate occasions by this court. See People v. Robinson, 160 Ill. App. 3d 366, 513 N.E.2d 603 (1987); People v. Rial, 214 Ill. App. 3d 420, 573 N.E.2d 842 (1991); People v. Cokley, 219 Ill. App. 3d 209, 579 N.E.2d 417 (1991) (which were decided in reliance on Robinson).\n\u25a0 The State\u2019s analysis of the current situation with our precedent is correct. Our present conclusion, which we believe to be the right one, is wholly inconsistent with these earlier decisions of our court.\nWe do believe, however, that an examination of the cases reveals the flaw in the prior reasoning of both the trial and appellate courts. In all three cases (Robinson, Rial, and Cokley), the panel found that the appointed counsel had complied with Supreme Court Rule 651(c) (107 Ill. 2d R. 651(c)) and had, therefore, provided representation which was sufficient under the statute.\nThe Illinois Supreme Court\u2019s decision in People v Porter, 122 Ill. 2d 64, 521 N.E.2d 1158 (1988), cited as additional authority by defendant, is instructive here. The majority in Porter found section 122\u20142.1 of the Post-Conviction Hearing Act to be constitutionally adequate, rejecting defendants\u2019 claims that it violates the doctrine of separation of powers and/or denies an indigent defendant due process.\nIn addressing the separation-of-powers argument, the court found that Supreme Court Rule 651(c) was concerned with the appointment of counsel at the appellate level, while section 122\u20142.1 provides for such appointment at the trial stage of postconviction proceedings. Relying on People v. Ward, 124 Ill. App. 3d 974, 978, 464 N.E.2d 1144 (1984), the court went on to state that \u201cthe appointment of counsel at the hearing stage of the post-conviction proceeding must be considered to be a\u201d \u201cmatter of legislative grace and favor which may be altered by the legislature at will.\u201d Porter, 122 Ill. 2d at 72-73, 521 N.E.2d at 1160-61.\nFurther, in considering the due process challenge, the Porter court noted:\n\u201cThe petitioner does not have to construct legal arguments or cite to legal authority. Once the petitioner sets out allegations demonstrating a meritorious constitutional claim, he is entitled to have counsel represent him on the petition.\u201d Porter, 122 Ill. 2d at 74, 521 N.E.2d at 1161.\nThus in Porter, the supreme court appears to recognize the right, of a defendant to have representation of counsel on the terms set out by the legislature in the Post-Conviction Hearing Act and to acknowledge that satisfaction of the provisions of Supreme Court Rule 651(c) cannot restrict or circumscribe the legislative grant of counsel.\nCONCLUSION\nFor all of the foregoing reasons, we specifically overrule the earlier decisions of this court in People v. Robinson, 160 Ill. App. 3d 366, 513 N.E.2d 603 (1987), People v. Rial, 214 Ill. App. 3d 420, 573 N.E.2d 842 (1991), and People v. Cokley, 219 Ill. App. 3d 209, 579 N.E.2d 417 (1991). We also reverse the decision of the trial court in the instant case and remand the matter for reinstatement of defendant\u2019s postconviction petition and appointment of new counsel to assist defendant in its prosecution.\nReversed and remanded.\nLYTTON and SLATER, JJ., concur.", "type": "majority", "author": "JUSTICE McDADE" } ], "attorneys": [ "Donna K. Kelly (argued), of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Jeff Tomczak, State\u2019s Attorney, of Joliet (John X. Breslin and Judith Z. Kelly (argued), both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAMON McKENZIE, Defendant-Appellant.\nThird District\nNo. 3\u201499\u20140565\nOpinion filed July 13, 2001.\nDonna K. Kelly (argued), of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nJeff Tomczak, State\u2019s Attorney, of Joliet (John X. Breslin and Judith Z. Kelly (argued), both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0592-01", "first_page_order": 610, "last_page_order": 615 }