{ "id": 5573622, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEREMY GREER, Defendant-Appellant", "name_abbreviation": "People v. Greer", "decision_date": "2003-07-18", "docket_number": "No. 4\u201401\u20141157", "first_page": "906", "last_page": "910", "citations": [ { "type": "official", "cite": "341 Ill. App. 3d 906" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "727 N.E.2d 189", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "194", "parenthetical": "finding it was error for trial court to dismiss defendant's postconviction petition where the only issue before it was the breadth and necessity of discovery requests and the State had not filed a motion to dismiss" } ], "opinion_index": 0 }, { "cite": "189 Ill. 2d 424", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224817 ], "year": 1999, "pin_cites": [ { "page": "434-35", "parenthetical": "finding it was error for trial court to dismiss defendant's postconviction petition where the only issue before it was the breadth and necessity of discovery requests and the State had not filed a motion to dismiss" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0424-01" ] }, { "cite": "752 N.E.2d 1256", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "1260" }, { "page": "1261" } ], "opinion_index": 0 }, { "cite": "323 Ill. App. 3d 592", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171726 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "595-96" }, { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/323/0592-01" ] }, { "cite": "481 U.S. 551", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6218288 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "558", "parenthetical": "finding that defendants in collateral proceedings do not have a right to counsel beyond that to which they are entitled under state law" }, { "page": "548", "parenthetical": "finding that defendants in collateral proceedings do not have a right to counsel beyond that to which they are entitled under state law" }, { "page": "1995", "parenthetical": "finding that defendants in collateral proceedings do not have a right to counsel beyond that to which they are entitled under state law" } ], "opinion_index": 0, "case_paths": [ "/us/481/0551-01" ] }, { "cite": "386 U.S. 738", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182629 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0738-01" ] }, { "cite": "561 N.E.2d 348", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "350", "parenthetical": "finding a defendant receives sufficient representation of counsel in a postconviction proceeding under the Act when counsel complies with Supreme Court Rule 651(c)" }, { "page": "350" }, { "page": "350" } ], "opinion_index": 0 }, { "cite": "203 Ill. App. 3d 571", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2582838 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "573-74", "parenthetical": "finding a defendant receives sufficient representation of counsel in a postconviction proceeding under the Act when counsel complies with Supreme Court Rule 651(c)" }, { "page": "573" }, { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/203/0571-01" ] } ], "analysis": { "cardinality": 487, "char_count": 10656, "ocr_confidence": 0.755, "pagerank": { "raw": 6.8330052001468e-08, "percentile": 0.41693955902448365 }, "sha256": "b87aa51da3af4d51675ff322b741d7619c3ad2b416cf2a18fe9af3f5ac3bba83", "simhash": "1:132ad51c72408d71", "word_count": 1766 }, "last_updated": "2023-07-14T21:38:13.673521+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. JEREMY GREER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE COOK\ndelivered the opinion of the court:\nDefendant, Jeremy Greer, is a prisoner in the custody of the Illinois Department of Corrections. In 1993, defendant pleaded guilty to one count of first degree murder and received a 60-year prison sentence. This court affirmed defendant\u2019s conviction and sentence on direct appeal in People v. Greer, No. 4 \u2014 95\u20140867 (June 28, 1996) (unpublished order under Supreme Court Rule 23).\nOn December 12, 2000, defendant filed pro se a petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 through 122 \u2014 8 (West 2000)). Defendant\u2019s petition began with an argument that his petition should not be dismissed as untimely pursuant to section 122 \u2014 1(c) of the Act because the delay in bringing the petition was not due to his culpable negligence. See 725 ILCS 5/122 \u2014 1(c) (West 2000). Defendant then alleged that he had been denied effective assistance of appellate counsel and that his guilty plea was not voluntary. According to defendant, his trial counsel told him that he would be eligible for the death penalty if he went to trial and was found guilty and that the State had agreed to a 45-year prison sentence in exchange for a guilty plea. Defendant further alleged that he was not actually eligible for the death penalty, and there was no agreement to 45 years. Therefore, defendant argued, his guilty plea was involuntary because he would not have pleaded guilty had he not been misinformed about a plea agreement or his eligibility for the death penalty.\nAlthough defendant filed his petition on December 12, 2000, the petition did not come to the attention of the trial court until July 10, 2001, more than 90 days later. The Act provides that if a postconviction petition is not acted upon by the trial court within 90 days of its filing, then the court must docket the petition for further consideration in accordance with sections 122 \u2014 4 through 122 \u2014 6 of the Act. 725 ILCS 5/122 \u2014 2.1(b) (West 2000). Section 122 \u2014 4 provides for appointment of counsel to represent defendant. 725 ILCS 5/122 \u2014 4 (West 2000). Appointed counsel is obligated to consult with the defendant to ascertain his contentions of deprivations of constitutional rights, examine the record of proceedings at trial, and make any amendments to the petition that are necessary for an adequate presentation of defendant\u2019s contentions. See 134 Ill. 2d R. 651(c); see also People v. Norton, 203 Ill. App. 3d 571, 573-74, 561 N.E.2d 348, 350 (1990) (finding a defendant receives sufficient representation of counsel in a postconviction proceeding under the Act when counsel complies with Supreme Court Rule 651(c)). Section 122 \u2014 5 places an obligation and time frame on the State to either answer the petition or file a motion to dismiss. 725 ILCS 5/122 \u2014 5 (West 2000). If the petition is not dismissed on the State\u2019s motion, then section 122 \u2014 6 provides for an evidentiary hearing and final disposition of the petition in the trial court. 725 ILCS 5/122 \u2014 6 (West 2000). The trial court in this case accordingly entered a docket order on July 18, 2001, which appointed counsel to represent defendant with directions for counsel to prepare an amended petition within 60 days and for the State to respond to the amended petition within 30 days.\nAfter a continuance, defendant\u2019s appointed counsel filed a motion for leave to withdraw as counsel and an Anders brief on October 11, 2001. See Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). In the motion, defendant\u2019s counsel alleged that he had consulted with defendant and reviewed the record and interviewed potential witnesses, but he could not find any basis on which to present any meritorious issue for review. The State never filed a response to defendant\u2019s petition. The trial court granted appointed counsel\u2019s motion to withdraw at a hearing on December 18, 2001, and dismissed defendant\u2019s petition sua sponte. Defendant appeals the December 18, 2001, order.\nDefendant raises two arguments on appeal. First, defendant argues that he was deprived of his statutory right to counsel when the trial court granted appointed counsel\u2019s motion for leave to withdraw. Second, defendant argues that the circuit court erred in dismissing his petition sua sponte where the State had never filed a motion to dismiss. We address each argument in turn.\nWe begin with defendant\u2019s argument that he was deprived of his statutory right to counsel. This court has held that a defendant receives sufficient representation of counsel in a postconviction proceeding under the Act when counsel complies with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)), even if appointed counsel moves to withdraw upon finding no meritorious issues to present. Norton, 203 Ill. App. 3d at 573, 561 N.E.2d at 350. Defendant does not allege that appointed counsel did not comply with the requirements of Rule 651(c) or that appointed counsel was incorrect in his assessment that there were no meritorious issues to present. Therefore, under this court\u2019s precedent, defendant received adequate representation on his postconviction petition. Norton, 203 Ill. App. 3d at 574, 561 N.E.2d at 350; see also Pennsylvania v. Finley, 481 U.S. 551, 558, 95 L. Ed. 2d 539, 548, 107 S. Ct. 1990, 1995 (1987) (finding that defendants in collateral proceedings do not have a right to counsel beyond that to which they are entitled under state law).\nDefendant\u2019s argument that he was deprived of his statutory right to counsel is based upon the Third District\u2019s recent decision in People v. McKenzie, 323 Ill. App. 3d 592, 752 N.E.2d 1256 (2001). In McKenzie, the court held that counsel appointed to represent a defendant in a postconviction proceeding may never move to withdraw as counsel because such a procedure is not provided for in the Act. McKenzie, 323 Ill. App. 3d at 595-96, 752 N.E.2d at 1260. The court reasoned that since the Act does not provide a method for withdrawal of counsel once one is appointed, the legislature intended for a defendant to be represented through the final disposition of the postconviction petition. The court concluded that \u201csatisfaction of the provisions of Supreme Court Rule 651(c) cannot restrict or circumscribe the legislative grant of counsel.\u201d McKenzie, 323 Ill. App. 3d at 597, 752 N.E.2d at 1261. Therefore, defendant argues, regardless of whether appointed counsel complied with Supreme Court Rule 651(c), under the holding in McKenzie, the trial court\u2019s order granting appointed counsel\u2019s motion to withdraw must be reversed.\nWe decline to follow McKenzie. When an attorney is appointed to represent a defendant in a postconviction proceeding, she has duties above and beyond the procedures set forth in the Act. Rule 651(c) requires appointed counsel to make any changes to the defendant\u2019s postconviction petition necessary to adequately present a claim. If the petition does not need to be amended, then counsel can say so. In either case, whether counsel files an amended petition or signs off on defendant\u2019s original petition, counsel is putting her signature on the petition. Pursuant to Supreme Court Rule 137, that signature certifies that the attorney believes the petition is \u201cwell grounded in fact and is warranted by existing law,\u201d and that the p\u00e9tition \u201cis not interposed for any improper purpose.\u201d 134 Ill. 2d R. 137. If the attorney does not believe that the petition can be amended or presented to state a meritorious issue, then the attorney is legally and ethically required not to sign that petition. Under the holding in McKenzie, however, appointed counsel would be forced to put her signature on a petition that she knew to be frivolous in order to comply with Rule 651(c) because she could not move for leave to withdraw. Such a requirement is simply untenable. We therefore reject it.\nWe next address defendant\u2019s argument that the trial court erred when it dismissed defendant\u2019s petition sua sponte. Defendant argues that regardless of whether the trial court properly granted appointed counsel\u2019s motion to withdraw, it was error for the trial court to then dismiss defendant\u2019s petition because the State had not filed a motion to dismiss. This argument has merit.\nThe fact that counsel has been granted leave to withdraw does not mean that the postconviction petition is dismissed. The trial court\u2019s power to dismiss a postconviction petition sua sponte on the basis that the petition is frivolous or patently without merit must be exercised within 90 days after the filing of the petition. See 725 ILCS 5/122\u2014 2.1(a)(2), (b) (West 2000). After that, the trial court can no longer dismiss the petition sua sponte. Instead, the State is required to file an answer or a motion to dismiss. 725 ILCS 5/122 \u2014 5 (West 2000). In this case, the court had lost its power to dismiss the petition sua sponte, and the State filed no motion to dismiss for the court to grant. The court therefore erred in dismissing defendant\u2019s petition. See, e.g., People v. Kitchen, 189 Ill. 2d 424, 434-35, 727 N.E.2d 189, 194 (1999) (finding it was error for trial court to dismiss defendant\u2019s postconviction petition where the only issue before it was the breadth and necessity of discovery requests and the State had not filed a motion to dismiss).\nIn conclusion, we find that counsel appointed pursuant to the Act may move for leave to withdraw if he or she complies with Rule 651(c) and can demonstrate that no meritorious issues can be presented for review. Defendant does not argue that his appointed counsel did not comply with Rule 651(c) or that appointed counsel was incorrect in the assessment that there were no meritorious issues to present. We therefore affirm that part of the trial court\u2019s order granting appointed counsel\u2019s motion to withdraw. We also find that the trial court erred in dismissing defendant\u2019s petition sua sponte because its power to do so had expired and there was no motion to dismiss on file for the trial, court to grant. We therefore reverse that part of the trial court\u2019s order dismissing defendant\u2019s petition and remand for further proceedings.\nAffirmed in part, reversed in part, and remanded.\nMYERSCOUGH, EJ., and KNECHT, J., concur.", "type": "majority", "author": "JUSTICE COOK" } ], "attorneys": [ "Daniel D. Yuhas and Jenifer L. Johnson, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "John E Schmidt, State\u2019s Attorney, of Springfield (Norbert J. Goetten and Robert J. Biderman, 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. JEREMY GREER, Defendant-Appellant.\nFourth District\nNo. 4 \u2014 01\u20141157\nOpinion filed July 18, 2003.\nDaniel D. Yuhas and Jenifer L. Johnson, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJohn E Schmidt, State\u2019s Attorney, of Springfield (Norbert J. Goetten and Robert J. Biderman, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0906-01", "first_page_order": 924, "last_page_order": 928 }