{ "id": 3739211, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY JENNINGS, Defendant-Appellant", "name_abbreviation": "People v. Jennings", "decision_date": "2003-12-31", "docket_number": "No. 4-01-0681", "first_page": "265", "last_page": "275", "citations": [ { "type": "official", "cite": "345 Ill. App. 3d 265" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "238 N.E.2d 377", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "pin_cites": [ { "page": "377-78" } ], "opinion_index": 0 }, { "cite": "40 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857269 ], "year": 1968, "pin_cites": [ { "page": "2-4" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0001-01" ] }, { "cite": "609 N.E.2d 864", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "876", "parenthetical": "the fact that a different judge sentenced the defendant does not preclude him from raising a disparate sentencing claim" } ], "opinion_index": 0 }, { "cite": "241 Ill. App. 3d 966", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2434218 ], "year": 1993, "pin_cites": [ { "page": "984", "parenthetical": "the fact that a different judge sentenced the defendant does not preclude him from raising a disparate sentencing claim" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/241/0966-01" ] }, { "cite": "619 N.E.2d 750", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "758" } ], "opinion_index": 0 }, { "cite": "156 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777558 ], "year": 1993, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0149-01" ] }, { "cite": "688 N.E.2d 658", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "663", "parenthetical": "arbitrary and unreasonable disparity between the sentences of similarly situated codefendants is impermissible and can serve as a basis for relief under the Act" } ], "opinion_index": 0 }, { "cite": "179 Ill. 2d 205", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801351 ], "year": 1997, "pin_cites": [ { "page": "216", "parenthetical": "arbitrary and unreasonable disparity between the sentences of similarly situated codefendants is impermissible and can serve as a basis for relief under the Act" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0205-01" ] }, { "cite": "767 N.E.2d 958", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "961" } ], "opinion_index": 0 }, { "cite": "329 Ill. App. 3d 322", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1472425 ], "year": 2002, "pin_cites": [ { "page": "325-26" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/329/0322-01" ] }, { "cite": "528 U.S. 470", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9476451 ], "weight": 12, "year": 2000, "pin_cites": [ { "page": "477" }, { "page": "994-95" }, { "page": "1034" }, { "page": "478" }, { "page": "995-96" }, { "page": "1035" }, { "page": "484" }, { "page": "999" }, { "page": "1038" }, { "page": "486" }, { "page": "1001" }, { "page": "1040" } ], "opinion_index": 0, "case_paths": [ "/us/528/0470-01" ] }, { "cite": "757 N.E.2d 442", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 2001, "pin_cites": [ { "page": "453" }, { "page": "450" }, { "page": "453" }, { "page": "453" } ], "opinion_index": 0 }, { "cite": "197 Ill. 2d 239", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259103 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "258" }, { "page": "253" }, { "page": "257-58" }, { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0239-01" ] }, { "cite": "609 N.E.2d 304", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "312", "parenthetical": "postconviction counsel must shape the petitioner's contentions in a pro se petition into \"appropriate legal form\"" } ], "opinion_index": 0 }, { "cite": "154 Ill. 2d 227", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4821172 ], "year": 1993, "pin_cites": [ { "page": "237-38", "parenthetical": "postconviction counsel must shape the petitioner's contentions in a pro se petition into \"appropriate legal form\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0227-01" ] }, { "cite": "586 N.E.2d 835", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "838" } ], "opinion_index": 0 }, { "cite": "223 Ill. App. 3d 957", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5256790 ], "year": 1992, "pin_cites": [ { "page": "962" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/223/0957-01" ] }, { "cite": "721 N.E.2d 534", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "536-37" } ], "opinion_index": 0 }, { "cite": "188 Ill. 2d 376", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 535974 ], "year": 1999, "pin_cites": [ { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0376-01" ] }, { "cite": "727 N.E.2d 348", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "358-59" } ], "opinion_index": 0 }, { "cite": "189 Ill. 2d 521", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224773 ], "year": 2000, "pin_cites": [ { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0521-01" ] }, { "cite": "564 N.E.2d 1184", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "1189" } ], "opinion_index": 0 }, { "cite": "139 Ill. 2d 351", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5574172 ], "year": 1990, "pin_cites": [ { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0351-01" ] }, { "cite": "719 N.E.2d 725", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "727-28" }, { "page": "729" }, { "page": "730-31" } ], "opinion_index": 0 }, { "cite": "187 Ill. 2d 406", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1131043 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "410" }, { "page": "412" }, { "page": "415-16" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/187/0406-01" ] } ], "analysis": { "cardinality": 1000, "char_count": 25189, "ocr_confidence": 0.704, "pagerank": { "raw": 9.229122738981154e-08, "percentile": 0.5104334268136869 }, "sha256": "ca5bbc053c163dec9eaee443c4e642dd666f1fa3b092c01c81d3f3adeff88029", "simhash": "1:d1d6d91456c5ad55", "word_count": 4013 }, "last_updated": "2023-07-14T15:40:04.128176+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "KNECHT, EJ., and MYERSCOUGH, J., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY JENNINGS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn July 1998, defendant, Anthony Jennings, pleaded guilty to one count of first degree murder (720 ILCS 5/9 \u2014 1(a)(1) (West 1998)). Defendant\u2019s guilty plea was \u201copen,\u201d meaning that no agreement existed between defendant and the State regarding defendant\u2019s sentence or the dismissal of other pending charges. In August 1998, the trial court sentenced him to 60 years in prison.\nIn September 2000, defendant pro se filed a petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 through 122 \u2014 8 (West 2000)), alleging, in pertinent part, that he received ineffective assistance of trial counsel when his court-appointed counsel, Harvey Welch, ignored his request and failed to file a motion to reconsider sentence and a notice of appeal. The trial court later appointed postconviction counsel, Wayne Smith, to represent defendant. Smith did not file an amended postconviction petition.\nIn May 2001, the State filed a motion to dismiss defendant\u2019s pro se postconviction petition. In August 2001, Smith filed a response to the State\u2019s motion and supplemented defendant\u2019s postconviction petition with a September 1999 letter from Welch to defendant\u2019s mother. Following an August 2001 nonevidentiary hearing, the trial court granted the State\u2019s motion.\nDefendant appeals, arguing that (1) Smith failed to provide a reasonable level of assistance because he failed to comply with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)); and (2) the trial court erred by dismissing his ineffective assistance of trial counsel claim -without holding an evidentiary hearing. Because we agree with defendant\u2019s first argument, we reverse and remand for further proceedings.\nI. BACKGROUND\nIn February 1998, the State charged defendant, who was then 16 years old, with one count of first degree murder (720 ILCS 5/9 \u2014 1(a)(1) (West 1998)), alleging that defendant shot and killed Craig Little without legal justification and with the intent to kill. At the July 1998 guilty plea proceedings, Welch informed the trial court that defendant had agreed to enter an open guilty plea. The court informed defendant that he had been charged with committing the offense of first degree murder, which normally carried a penalty of 20 to 60 years in prison. The court also informed defendant that he could be eligible for an extended-term sentence of 60 to 100 years in prison or a sentence of natural life in prison if certain aggravating factors existed.\nThe State then provided the following factual basis for defendant\u2019s guilty plea. Sometime prior to February 17, 1998, defendant, Angela Little, who was Craig\u2019s estranged wife, and Carl Dueringer, Angela\u2019s then-boyfriend, agreed that Angela would pay defendant to murder Craig. On the evening of February 17, 1998, defendant and Dueringer dropped off Angela at an acquaintance\u2019s residence. Dueringer gave defendant a shotgun that Dueringer had obtained from his employer, and Dueringer and defendant drove to a location near Craig\u2019s residence. Defendant then got out of the car, walked to Craig\u2019s residence, and knocked on the back door. When Craig opened the door, defendant shot him once in the chest, causing him to fall backward down a stairwell. (Although Craig was mortally wounded, he did not die immediately.) Defendant entered Craig\u2019s residence and tried to find something to steal to make it appear as though a robbery had occurred. Defendant ultimately left the residence without taking anything and returned to the car that Dueringer was driving.\nThe trial court accepted the State\u2019s factual basis, found that defendant had knowingly and voluntarily entered his guilty plea, and accepted the plea.\nAt defendant\u2019s August 1998 sentencing hearing, the trial court considered (1) the presentence investigation report (PSI), (2) a taped telephone conversation between defendant and Angela shortly after the murder, (3) defendant\u2019s confession to police, (4) a psychological evaluation of defendant conducted by Marty Traver, a clinical psychologist, and (5) victim-impact statements from Craig\u2019s mother, father, brother, and cousin.\nThe PSI indicated, in pertinent part, as follows: (1) following his parents\u2019 divorce when he was eight years old, defendant had little or no parental supervision; (2) defendant dropped out of high school in the tenth grade; (3) he drank alcohol and smoked marijuana occasionally; (4) he worked full-time at McDonald\u2019s and was \u201cnever a problem\u201d until he was fired the day after the murder for using foul language; (5) he had no prior criminal record; (6) he was remorseful and reported having nightmares about the murder; and (7) he agreed to murder Craig because (a) he believed that Craig was abusing Angela, and (b) Angela promised to give him money.\nDuring the taped telephone conversation between defendant and Angela, defendant told her that after having shot Craig, he told Craig to \u201c[q]uit crying you fuckin [sic] pussy.\u201d Later in the conversation, defendant told Angela that after leaving Craig\u2019s residence, he was so upset he started shaking and could not hold onto anything.\nDefendant\u2019s confession indicated the following: (1) during a two-week period prior to the murder, Angela and Dueringer persistently asked defendant to murder Craig because Craig was beating Angela and Angela wanted Craig\u2019s life insurance money; (2) on the evening of the murder, defendant twice told Angela and Dueringer that he did not want to kill Craig, but they told him that he could do it and it was too late to back out; (3) after shooting Craig, defendant \u201cstood there, frightened [and] scared\u201d and then \u201ctried to put [Craig] out of his misery\u201d by shooting him in the head, but the shotgun misfired; (4) before leaving Craig\u2019s residence, defendant told Craig that he was sorry and he did not want to shoot him, but \u201cthey made [him] do it\u201d; and (5) the primary reason he murdered Craig was because Angela told him that Craig beat her.\nTraver\u2019s psychological evaluation of defendant indicated, in pertinent part, as follows: (1) defendant was of average intelligence, emotionally immature, and appeared to have poor judgment; (2) he regretted murdering Craig; (3) he had some psychopathic tendencies, including lack of remorse and empathy, which were still \u201cin the developing stage\u201d; and (4) he had \u201cweak ego strength\u201d and lacked a \u201cwell-formed sense of identity.\u201d\nA former Ford County correctional officer testified on defendant\u2019s behalf that defendant had been a model inmate during his incarceration at the county jail. Two of defendant\u2019s friends testified that he was always very polite and helpful. Margaret Robinson, defendant\u2019s mother, testified that defendant never had any \u201cextreme discipline problems.\u201d Defendant stated in allocution that (1) he was sorry for murdering Craig; and (2) if he could give his life to bring back Craig, he would do it.\nAfter considering the evidence presented, defendant\u2019s statement in allocution, and counsel\u2019s recommendations, the trial court sentenced defendant to 60 years in prison.\nOn March 15, 1999, defendant sent a letter to the trial court, requesting that the court appoint counsel to represent him on appeal because his family could not afford to hire an attorney. On March 26, 1999, the court sent a letter in response to defendant, with copies sent to Welch and the Ford County State\u2019s Attorney, advising defendant that the time for filing a direct appeal had passed and he could seek relief under the Act.\nIn December 1999, defendant wrote to the Ford County circuit clerk, requesting a copy of his transcripts and claiming that he wanted to withdraw his guilty plea due to Welch\u2019s ineffective assistance, violations of his constitutional rights, and the trial court\u2019s alleged conflict of interest. Attached to his letter was a pro se notice of appeal. This court granted defendant leave to file a late notice of appeal and appointed the office of the State Appellate Defender (OSAD) to represent him.\nOn February 11, 2000, defendant wrote a letter to the trial court, stating that Welch \u201cwould not file for [defendant\u2019s] appeal\u201d and requesting his transcripts and transcripts of Angela\u2019s trial. The court forwarded that letter to OSAD. On February 25, 2000, defendant pro se filed a motion to reduce his sentence, alleging, in pertinent part, that his sentence was excessive in light of his age, lack of a prior criminal record, and the lower sentences imposed on Angela and Dueringer, his two adult codefendants. (The court did not rule upon that motion.) In April 2000, this court granted defendant\u2019s motion to dismiss his appeal because no postplea motions had been timely filed. People v. Jennings, No. 4-99-1045 (April 26, 2000) (dismissed on appellant\u2019s motion).\nIn September 2000, defendant pro se filed a postconviction petition, alleging, in pertinent part, that he received ineffective assistance of trial counsel when Welch ignored his request and failed to file a motion to reconsider sentence and a notice of appeal. Attached to his petition were the following: (1) defendant\u2019s affidavit, in which he averred that (a) after being sentenced, he asked Welch to file a motion to reconsider sentence, and Welch replied that he would \u201c[g]et back\u201d to defendant about his request; and (b) after a November 1999 hearing regarding whether defendant would be transferred to an adult correctional facility, defendant again told Welch that he wanted to appeal, and Welch replied that the proceedings were \u201c[a]ll over with\u201d and Welch would not be appealing defendant\u2019s case; and (2) Robinson\u2019s affidavit, in which she averred that in early 1999, she contacted Welch about defendant\u2019s appeal, and Welch replied that the time for filing an appeal had passed. In September 2000, the trial court appointed Smith to represent defendant. Smith did not file an amended postconviction petition.\nIn May 2001, the State filed a motion to dismiss defendant\u2019s pro se postconviction petition, arguing, in pertinent part, that (1) \u201c[d]ecisions made by [defendant and Welch] were matters of pre[ ]trial and sentencing strategy, and not evidence of ineffective assistance of counsel\u201d; and (2) defendant\u2019s \u201callegations that [Welch] failed to follow his directions[ ] are supported only by his own affidavit and that of his mother, and are not documented or corroborated in any other manner.\u201d In August 2001, Smith filed a response to the State\u2019s motion. He also supplemented defendant\u2019s petition with a September 27, 1999, letter from Welch to Robinson, in which Welch (1) apologized for his tardy reply to her inquiry about appealing the length of defendant\u2019s sentence as compared to Angela\u2019s and Dueringer\u2019s sentences, and (2) stated that \u201c[a]n appeal of sentence would be fruitless and is now too late.\u201d Following an August 2001 nonevidentiary hearing, the trial court granted the State\u2019s motion and dismissed defendant\u2019s postconviction petition.\nThis appeal followed.\nII. POSTCONVICTION COUNSEL\u2019S FAILURE TO COMPLY WITH SUPREME COURT RULE 651(C)\nDefendant argues that Smith failed to provide a reasonable level of assistance because he failed to fully comply with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). The State concedes that Smith did not file a Rule 651(c) certificate of compliance. However, the State contends that (1) the record shows that Smith fully complied with Rule 651(c), and (2) defendant was not prejudiced by Smith\u2019s performance. We agree with defendant.\nBecause the right to counsel in postconviction proceedings is wholly statutory, postconviction petitioners are entitled only to the level of assistance provided by the Act. People v. Turner, 187 Ill. 2d 406, 410, 719 N.E.2d 725, 727-28 (1999). It is well settled that the Act requires counsel to provide a \u201creasonable level of assistance\u201d to a petitioner in a postconviction proceeding. (Emphasis omitted.) People v. Owens, 139 Ill. 2d 351, 364, 564 N.E.2d 1184, 1189 (1990); see also People v. Moore, 189 Ill. 2d 521, 541, 727 N.E.2d 348, 358-59 (2000). To assure that reasonable level of assistance, Supreme Court Rule 651(c) requires that postconviction counsel (1) consult with the defendant either by mail or in person and ascertain upon what basis the defendant claims a constitutional deprivation, (2) examine the record of the trial court proceedings, and (3) make any necessary amendments to the defendant\u2019s pro se postconviction petition. 134 Ill. 2d R. 651(c). Counsel may file a certificate to show that counsel complied with the requirements of Rule 651(c), or the record as a whole may demonstrate that postconviction counsel complied with those requirements. People v. Richmond, 188 Ill. 2d 376, 380, 721 N.E.2d 534, 536-37 (1999).\nAs the State concedes, Smith failed to file a Rule 651(c) certificate of compliance. \u201cWe are not entitled to assume counsel complied with Rule 651(c). There must be an explicit showing in the record that he did, in fact, fulfill the rule\u2019s requirements.\u201d People v. Carter, 223 Ill. App. 3d 957, 962, 586 N.E.2d 835, 838 (1992). It is undisputed that Smith complied with the first requirement of Rule 651(c) \u2014 namely, that counsel consult with the defendant. However, the record does not explicitly show that Smith complied with the remaining requirements of the rule.\nA. Postconviction Counsel\u2019s Examination of the Trial Record\nDefendant contends that the record fails to show that Smith examined the record of the trial court proceedings. We agree.\nHaving thoroughly reviewed the record, we conclude that it does not explicitly show that Smith examined the trial record. Smith\u2019s itemized bill, which was attached to his petition for attorney fees, does not indicate that counsel reviewed any portion of the trial record. Although that bill shows that on one occasion, counsel spent fewer than 12 minutes reviewing the \u201c[f]ile,\u201d nothing in the record indicates that that file included the trial record. The State\u2019s assertion that Smith examined the pertinent portions of the trial record because defendant \u201cpresumably provided counsel with the transcript of his guilty plea and sentencing, which had been sent to [defendant] January 13, 2000,\u201d constitutes nothing more than speculation. Such speculation is obviously insufficient to show that Smith provided the level of assistance required by Rule 651(c) (134 Ill. 2d R. 651(c)).\nB. Postconviction Counsel\u2019s Failure To Make Necessary Amendments to Defendant\u2019s Pro Se Petition\nIn addition, we note that Smith failed to make any amendments to defendant\u2019s pro se petition. Postconviction counsel is not required to amend a petitioner\u2019s pro se postconviction petition. Turner, 187 Ill. 2d at 412, 719 N.E.2d at 729. However, Rule 651(c) clearly requires that postconviction counsel make \u201cany amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner\u2019s contentions.\u201d 134 Ill. 2d R. 651(c); see also People v. Johnson, 154 Ill. 2d 227, 237-38, 609 N.E.2d 304, 312 (1993) (postconviction counsel must shape the petitioner\u2019s contentions in a pro se petition into \u201cappropriate legal form\u201d).\nIn this case, Smith failed to make amendments to defendant\u2019s pro se petition that were necessary for an adequate presentation of defendant\u2019s contentions. In particular, he failed to amend (1) defendant\u2019s claim of Welch\u2019s ineffective assistance for failing to perfect an appeal by alleging grounds that could have been raised in a motion to reconsider defendant\u2019s sentence, and (2) the petition to allege a disparate sentencing claim.\n1. Failure To Amend Defendant\u2019s Ineffective Assistance Claim\nWe conclude that Smith failed to make an amendment to defendant\u2019s pro se petition that was necessary for an adequate presentation of defendant\u2019s contentions when he failed to amend defendant\u2019s ineffective assistance claim by alleging grounds that could have been raised in a motion to reconsider defendant\u2019s sentence.\nOur supreme court has held that to merit an evidentiary hearing on a postconviction claim that trial counsel provided ineffective assistance by failing to perfect an appeal, a defendant is required to provide \u201csome explanation\u201d of the grounds that could have been raised in the postplea motion. People v. Edwards, 197 Ill. 2d 239, 258, 757 N.E.2d 442, 453 (2001).\nIn Roe v. Flores-Ortega, 528 U.S. 470, 477, 145 L. Ed. 2d 985, 994-95, 120 S. Ct. 1029, 1034 (2000), the United States Supreme Court held that the familiar Strickland \u201ctest applies to claims *** that counsel was constitutionally ineffective for failing to file a notice of appeal.\u201d To establish the performance prong of Strickland, the defendant (1) must demonstrate that his attorney ignored the defendant\u2019s specific instruction or request to file a notice of appeal; or (2) if his attorney did not consult with the defendant about taking an appeal and make a reasonable effort to ascertain the defendant\u2019s wishes, the defendant must demonstrate that counsel\u2019s failure to consult with him constituted deficient performance. Flores-Ortega, 528 U.S. at 478, 145 L. Ed. 2d at 995-96, 120 S. Ct. at 1035. To establish the prejudice prong of Strickland, the defendant must demonstrate a reasonable probability that counsel\u2019s deficient performance \u201cactually cause[d] the forfeiture of the defendant\u2019s appeal.\u201d Flores-Ortega, 528 U.S. at 484, 145 L. Ed. 2d at 999, 120 S. Ct. at 1038. In that regard, the Supreme Court stated as follows:\n\u201cWe *** conclude here that it is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit before any advocate has ever reviewed the record in his case in search of potentially meritorious grounds for appeal.\u201d (Emphasis in original.) Flores-Ortega, 528 U.S. at 486, 145 L. Ed. 2d at 1001, 120 S. Ct. at 1040.\nIn Edwards, 197 Ill. 2d at 253, 757 N.E.2d at 450, our supreme court relied on Flores-Ortega in holding that \u201ca pro se defendant, even if he pled guilty, cannot be required to demonstrate how his appeal would have been successful in order to establish that he was prejudiced by his attorney\u2019s failure to pursue a requested appeal.\u201d (Emphasis in original.) In limiting its holding to the dismissal of a postconviction petition at the first stage of the postconviction process, the Edwards court noted that at the second stage of postconviction proceedings, the defendant (who will then be represented by an attorney) must make a substantial showing that (1) he told his trial counsel to file the necessary postplea motion (in that case, a motion to withdraw guilty plea); and (2) counsel was constitutionally ineffective for failing to do so. Edwards, 197 Ill. 2d at 257-58, 757 N.E.2d at 453. The court explained that \u201c[s]uch a showing will necessarily entail some explanation of the grounds that could have been presented in the motion to withdraw the plea.\u201d Edwards, 197 Ill. 2d at 258, 757 N.E.2d at 453; see also People v. Hughes, 329 Ill. App. 3d 322, 325-26, 767 N.E.2d 958, 961 (2002) (in which this court held that in accordance with Edwards, at the third stage of postconviction proceedings, a defendant who alleges that his trial counsel provided ineffective assistance by refusing to file the necessary postplea motion and perfect an appeal is required to present evidence of the grounds that could have been raised in the postplea motion).\nIn this case, Smith failed to amend defendant\u2019s ineffective assistance claim to include an allegation of the grounds that Welch could have raised in a motion to reconsider defendant\u2019s sentence. As discussed, such an allegation was an essential element of defendant\u2019s claim. This is not a mere theoretical failing on counsel\u2019s part, given that the State contends in its brief to this court that Smith had nearly 11 months to amend defendant\u2019s pro se petition but did not do so. Had Smith reviewed the pertinent portions of the trial record, he easily could have amended defendant\u2019s pro se petition to allege grounds that could have been raised in a motion to reconsider defendant\u2019s sentence, including the following: (1) that defendant\u2019s sentence was excessive, in light of mitigating factors, including (a) defendant\u2019s young age, (b) his difficult upbringing, (c) his culpability as compared to Angela\u2019s and Dueringer\u2019s, (d) his willingness to plead guilty in an open plea, (e) his willingness to testify against Angela and Dueringer, (f) his lack of a prior criminal record, and (g) his positive adjustment to incarceration; and (2) that the trial court failed to adequately consider defendant\u2019s rehabilitative potential.\n2. Failure To Allege a Disparate Sentencing Claim\nIn addition, we agree with defendant that under the particular circumstances of this case, Smith failed to make an amendment to defendant\u2019s pro se petition that was necessary for an adequate presentation of defendant\u2019s contentions when he failed to amend the petition to allege a disparate sentencing claim. See People v. Caballero, 179 Ill. 2d 205, 216, 688 N.E.2d 658, 663 (1997) (arbitrary and unreasonable disparity between the sentences of similarly situated codefendants is impermissible and can serve as a basis for relief under the Act).\nWe are mindful that a defendant is not entitled to the advocacy of postconviction counsel for purposes of \u201cexploration, investigation!;,] and formulation of potential claims.\u201d People v. Davis, 156 Ill. 2d 149, 163, 619 N.E.2d 750, 758 (1993). Although defendant\u2019s pro se postconviction petition did not explicitly claim that an arbitrary and unreasonable disparity existed between his 60-year sentence and Angela\u2019s 56-year sentence, the substance of his ineffective assistance claim and the allegations therein clearly showed that defendant wanted to challenge his sentence. Indeed, at the August 2001 hearing on defendant\u2019s post-conviction petition, Smith acknowledged that the petition effectively raised a challenge to defendant\u2019s sentence. Further, this was not a case where Smith would have had to comb through the entire record to discern this claim. Instead, the September 1999 letter from Welch to defendant\u2019s mother, which Smith used to supplement defendant\u2019s petition, suggested a disparate sentencing claim by specifically stating that \u201cwhile it is true that [defendant] received the most time, you must remember that all defendants were sentenced by different judges.\u201d (The record shows that in January 1999, Angela, who was by all accounts the primary moving force behind Craig\u2019s murder, received a 56-year sentence for first degree murder.) See People v. Banks, 241 Ill. App. 3d 966, 984, 609 N.E.2d 864, 876 (1993) (the fact that a different judge sentenced the defendant does not preclude him from raising a disparate sentencing claim). Under these particular circumstances, Smith should have amended defendant\u2019s pro se petition to aUege a disparate sentencing claim.\nAccordingly, given the totality of the circumstances of this case, we conclude that Smith\u2019s performance was unreasonable and fell below the level of assistance required by Rule 651(c) (134 Ill. 2d R. 651(c)).\nIn so concluding, we reject the State\u2019s argument that we should reject defendant\u2019s contention because he was not prejudiced by Smith\u2019s performance. In essence, the State contends that because the disparate sentencing claim lacks any merit, Smith\u2019s failure to amend defendant\u2019s pro se petition did not prejudice defendant. In Turner, 187 Ill. 2d at 415-16, 719 N.E.2d at 730-31, the supreme court rejected essentially the same argument, stating, in pertinent part, as follows:\n\u201c[I]t is improper to affirm the dismissal of a post[ jconviction petition when this court finds that post[ jconviction counsel\u2019s performance was so deficient that it amounts to virtually no representation at all. See People v. Tyner, 40 Ill. 2d 1, 2-4[, 238 N.E.2d 377, 377-78] (1968) (reversing the dismissal of a post[ jconviction petition without an evidentiary hearing where appointed counsel elected to stand on the original pro se petition and did not consult with the petitioner or examine the record even though none of the claims in the pro se petition appeared to require an evidentiary hearing). This court will not speculate whether the trial court would have dismissed the petition without an evidentiary hearing if counsel had adequately performed his duties under Rule 651(c).\u201d\nIII. CONCLUSION\nFor the reasons stated, we reverse the trial court\u2019s dismissal of defendant\u2019s postconviction petition and remand with directions that the trial court allow defendant the opportunity to replead his postconviction petition with the assistance of counsel, as required by Rule 651(c) (134 Ill. 2d R. 651(c)).\nReversed and cause remanded with directions.\nKNECHT, EJ., and MYERSCOUGH, J., concur.", "type": "majority", "author": "JUSTICE STEIGMANN" } ], "attorneys": [ "Daniel D. Yuhas and Jacqueline L. Bullard (argued), both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Tony Lee, State\u2019s Attorney, of Paxton (Norbert J. Goetten, Robert J. Biderman, and Kathy Shepard (argued), all 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. ANTHONY JENNINGS, Defendant-Appellant.\nFourth District\nNo. 4-01-0681\nOpinion filed December 31, 2003.\nDaniel D. Yuhas and Jacqueline L. Bullard (argued), both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nTony Lee, State\u2019s Attorney, of Paxton (Norbert J. Goetten, Robert J. Biderman, and Kathy Shepard (argued), all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0265-01", "first_page_order": 285, "last_page_order": 295 }