court counsel my name is amorous stanek from the office of the state of december and i represent the cendant appellant james daniels in this case counsel was appointed files continuances for three years and  those three years she did nothing she filed no six hundred and fifty one dollars c certificate she did not amend the petition she gave no oral argument at any point she filed no response to the state's motion to dismiss and when the time came for a hearing she turned the whole thing over to her client who stood there on his own proceed petition at that point the trial court then granted the state motion to dismiss at the nd stage of any post conviction claim every defendant is entitled to reasonable assistance by an attorney and in order to ensure that assistance that every defendant gets that assistance the illinois supreme court requires counseling counsel to file this there to pick it under rule six  just certify that they've done the following one consulted with the petitioner either by mail or in person to ascertain the contentions of deprivation of constitutional rights two they have to examine the record of the trial court proceeding and three made any amendments to the petition necessary for the adequate presentation of the petitioners contention if this certificate is not filed then the then the record has to affirmatively show that these  that these that these duties were met by counsel in this case the record actually shows the opposite it shows that the assistance provided to mr daniels amounted to no assistance at all first before counsel had any contact with mr daniels she decided that nothing additional needed to be filed she advised the court she would just proceed on his pro se petition before she been communicated with him to determine his intentions the constitutional violation she just came up with this decision somewhere the timeline was such on march th two thousand and seventeen she advised the court she was not going to be amending it or filing anything supplemental yet in january t eighteen almost a year later she advised the court she had still not spoken to her client even three years later as the judge was ready to hear arguments in the case the judge himself was not satisfied that counsel had consulted with mr daniels and on his own he asked that the case be continued for that to happen and although that continuance took place there was after that nothing in the record to confirm a consultation took place there were statements that  they had spoken but nothing to nothing to affirmatively confirm on the record what they had spoken about instead were actually in this case left wondering did post conviction council know anything about his case at all did she have any idea if his claims what they were whether they had merit much less whether she had provided him with a reasonable assistance that was required second although counsel asked for time to examine the record there's nothing in the record that then confirmed she had in fact examined the record we don't know if she read some portion we don't know if she read personally pertinent portions we hope that she read the petition but again the affirmative showing on the record because no rule six thousand six hundred and fifty one c was fired was filed speculation is just insufficient you can speculate in order to establish the counsel provided that level of assistance required and the case on point that deals with this issue was people versus jennings and in that case on the state wanted the court to essentially speculate that because the defendant had been given a copy of the record it should be presumed that he then sent it to counsel counsel then sent the defendant an itemized bill stating that at some point they had quote reviewed the file and the court still found that was not enough to show compliance in this case we have even less there's not even an itemized bill that could be brought up to show hey you know the counsel is saying quote they reviewed the file there was nothing other than the fact that counsel asked  time to review the file but we don't know whether that actually took place sir the council made no amendments to mr daniels petition and this is in spite of the fact that the state filed a motion to dismiss his claims on the basis they should amend the petition when necessary to allege ineffective assistance of appellate counsel this would then be a relatively simple way to get around the state's claim of forfeiture could could counsel have amended it in that way in the case people versus turner that was where the supreme court found post conviction counsel provided unreasonable assistance by failing to amend the petition to include an allegation of ineffective assistance of the pellet counsel in turn or the court characterized the council's decision to stand on the pro se petition as quote a total failure of representation and in this case counsel did not even do that she did not even stand herself on mr daniel pro state petition she handed the whole thing over to him to stand on his own petition most shockingly this complete lack of representation took place after nearly  three years of continuances that were requested by counsel continuances for what what did counsel do we can't answer that we can't look at the record and say what counsel did did she do any work we didn't know did she spend countless hours maybe poring over the record to properly represent him we don't even know that we're left with a complete deficit of information due to the fact that there was no certificate filed by counsel we do know that mr daniels sent letter after letter after letter to the court asking what was going on in this case the jesting he had no idea how to even contact his attorney for the majority of the time his case was pending mr daniels was in prison it is not difficult to reach someone in prison or by phone by mail say hello i'm your attorney this is my address this is how you can reach me  law as a result we are asking that this case be remanded for further post conviction proceedings we are asking that other separate counsel be appointed to mr daniels and we are asking that this court urge the trial court to avoid any further unnecessary protraction of this process they're already had then a three year delay between the filing of this proceed petition and the ultimate  it seemed a little bit brief in terms of her representations but in reviewing the trial transcript in august days two thousand and eighteen the mishaps was there before the court she indicated  that she had talked to the defendant and then the court i believe asked at some point whether or not she had consulted with him and didn't the defendant say that  he she did consult with him yes what what was said on june th of two thousand and eighteen counsel had stated i'm not filing a supplemental petition he's going forward on its own and then the judge did ask  mr daniels quote did you go over all the claims that you believe you had a needed to be raised he said yes and then he said did you believe you were able to get her opinion as the claims and he said no we didn't talk about that  with respect to whether or not she consulted with him as to all this contentious of errors that statement that he said that he did why would that not suffice on that point the concern was that is that after this interaction that took place is that the trial court judge was not satisfied with that requirement what we don't have from the transcript is many things that the trial court did which was you know was there a long pause after he said ye y say it in the questioning way was he was there some concern the judge after that interaction was not satisfied that the requirement had been met and the judge to a sponsor and asked for a continuance after that fact to say hey there needs to be this consultation and so that's the concern over that colloquy was that the judge himself was not satisfied that that problem had been sufficiently met with regard to  the nd issue was the record demonstrates that the mishaps examine the report of proceedings did you run the risk anywhere in the trial court transcripts of mishan formative we represented that he examined the drug or proceedings no so but there's no way to tell from that statement of the court she may have felt she was ready after just reading you know his petition we don't know that she didn't file any amendments she didn't make any additional argument again there are a number of cases that indicate that it's not sufficient to just ask the court to make that assumption again we don't have the presumption that she did in  comply with that and so simply stating the court i'm ready to proceed is not sufficiently affirmative to say i've read the record i've fully viewed these issues with my client you know i'm aware of what's in the record for that explanation for why the trial judge is doing independent inquiries both the defendant and the attorney i read that and i i felt that that was the trial court's concern  over whether counsel had adequately spoken with her client there was a point at which counsel said my client's ready to proceed and mr daniels said i haven't heard the motion i haven't seen it and then at that point the judge gave him another two weeks this was after the initial continuation that continuance that the judge gave again it's not as my assessment of this it wasn't clear in the record what happened but the judge was concerned at multiple points even though counsel said we spoke the judge said you know i'm still giving this continuation he has said yes and he has seen the motion you're representing that he is ready to go there was no attempt by counsel to withdraw and yet counsel did not herself even stand on his motion and so whether there had been some off record communication with counsel it certainly would have been very simple for counsel just said your honor i have discussed this with my client essentially but there was no conversation that was clear on the record again from my interpretation of that all right thank you very much i have noticed  thank you my question if you know how long is this journey been licensed practice law here out i'm sorry i have no idea you have was connection counsel need to assert any specific grounds for assault but was ethically bound not to deliberately mislead the court the specter of the facts or the law or consume the time and energies of the court and opposing counsel by advancing frivolous when the petitioner when defendant rather keep mixing the terms sorry defendant denied that he'd spoken to counsel about her opinion of the of the claims it could be raised in petitioned the court continued the case to allow further consultation it's notable that counsel at that point did disagree indicating that she they had spoken many times on august th after several more continuances of the state's most and to dismiss the press statement titian these things that were necessary for an adequate presentation of defendant's intentions i note that appellate counsel has not articulated helpless condition counsel could have amended this quote pro se petition to substantially show that trial also make any factual showing that if counsel had hired a d n a expert to challenge the state's d n a evidence as he attested the result trial would have been different counsel across within the state's witness about the collection of the hat and blood samples found in the and eighteen the court was addressing this hatch i asked her if she went over all of the claims that she believed that he needed to be raised in his post conviction petition and she said yes on the record i think that may pass muster on that issue and i think we'd have to agree with you is that six hundred and fifty one dollars see the requirement that counsel makes any necessary amendments to the petition does not require counsel to raise frivolous or spurious claims i think that that's pretty much on disputed i'd like to focus on the nd element under six hundred and fifty one dollars see the nd factor counsel examine the record of the proceedings at trial can you point us to anywhere in this record this entire proceeding that affirmatively establishes she did in fact examine the report of proceedings in this case did she ever say that she did she didn't specifically say the report of the proceedings she said she wanted to review everything this was not a significantly long record ringback proceedings  that she had as much of the court had completed her review that she had requested she completed her view you so if we were to exceed to your position doesn't that require us to in all candor fill in the gap she never stated she didn't file a sixty one sees fit to because she never said yes i have examined the report of proceedings or anything like that she did additional time to complete a review and look at everything but we really don't know that is not sort of a slender re pencil so she want to continue to review everything then that means that she's examined the report of proceedings should we make that decision and i'll step as a rule of law i can think you have to consider what the claims in the  counsel performed well at trial which would yes in the state rule i don't know if that's just not ever read but i would again some that saying you're going to review everything now asking for a substantial period of time to do petition would ultimately result in a frivolous argument we still have to find that the record demonstrates the conviction counsel examine the report proceedings otherwise we have to reverse would would you agree with that what happens ultimately the petitions friendless the claims are frivolous before we can affirm we still have to find that the record demonstrates post conviction counsel examine the report of proceedings otherwise no matter how frivolous we cannot affirm is that a fair statement i believe that's true the report of cases you know they look at all  interacting directly with the defendant and as to the merits of the arguments as opposed to simply asking the counsel who supposedly did all this work to make the arguments i'm not exactly certain issue and then subsequent to the st trial again made a claim that she had not challenged state's evidence the court conducted a mini crinkle hearing with the defendant i believe that in that st claim the trial counsel was ineffective she missed you know the trial counsel move to withdraw at some point saying that she would try to talk to this defendant and he would just walk away from her so it wasn't collaborative and that's the sense i got from the record i can't specifically explain why the court addressed both but but that's what what i was able to en questions thank you i have no questions justice hughson do you have any questions i have no further questions thank you thank you require reversal second opposing counsel went into great length about the potential underlying merits of mr daniels claims and that's simply not a part of the inquiry as to whether the requirements under the rule were met when counsel failed to fulfill any one of the requirements of remand is required regardless of the underlying claims and whether they had merit it's pure really conjecture at this point as to whether child counsel filthies claims actually had merit you know again this is not the inquiry and question but even so there were allegations in his petition that were somewhat outside the record that would have been there on direct appeal including conversations that he had with his trial counsel regarding this d n a and so that alone could have potentially again potentially because this is all speculation because we don't actually know what did or didn't do in this case that alone could have potentially challenge the state's claim a forfeiture and then even though even if she had decided this claim has no merit at all she still needed to meet the six hundred and fifty one c requirements and then ethically should could  thought to withdraw people versus greer quotes another appellate court decision stating that this court has held a defendant receive sufficient representation of counsel in a post conviction proceeding under the act when coun nothing that could be done she needed to certify that these duties were met she met these duties she could not a sickly proceed and then she could have withdrawn sir and i would just point out again that confirmation of speaking with one's client is not the same as consulting with one client and then with regard to the review of the record the case law is simply said it's very clear you cannot make that inference there's no presumption that she read the this there's probably a form probably a form that she could have simply filed this can be fixed but we cannot be left with a record that does not affirmatively show that she complied with these rules  and so really again for for opposing counsel just adjust his claims were just unequivocal without merit that's part of the best part of the point we simply don't know if he was required at this stage to show i'm his own good there was no merit then we would just be this would just be automatically continue to search stage hearing that's not what we're asking we're asking that this be return the nd stage to ensure that he has the statutory protection that was that was laid out by the supreme court that says you have to meet these minimum requirements it is not for the defendant without the advantage counsel to be able to put his claims together i mean in order to automatically advance them to rd stage that's simply skipping over the entire point of his having the assistance of counsel and so to spend this much time of dwelling on whether his underlying claims had merit or not and speculating whether he was upset with his previous counsel that's simply not the inquiry in question and and at this stage is doesn't hold any water in terms of whether his a counsel who his counsel who was appointed spent three years doing absolutely nothing and then didn't file any any certificate stating something to the contrary and so for all of those reasons you know this is a petitioners entitled to a reasonable level of the system frankly speaking that's not a particularly high bar but it has to be met it has to be met otherwise there's no meaning to this rule at all there's no meaning to this sense of a reasonable level of assistance by an attorney when we don't even know if that attorney read the record before she formed any opinions we don't know what those opinions are  didn't make any arguments on his behalf she she didn't move to withdraw as she had moved to withdraw then she would have had to stay on the record why she felt that his claims had no merit and he would have had the additional protection of being able to counter his attorneys opinion because she simply kind of handed it over to him in these circumstances that were not clear on the record he did not even have that additional protection of being able to say hey i don't think my counsel read the record this is why my claims to record indicates that ms had did not make any argument in support of the motion filed is that correct that's correct did she ever she did not it's i have no further questions does the panel have any other questions i do not do you have any further questions i do not thank you thank you the case will be taken under advisement and a disposition rendered in apt time mr clerk would you please close out the proceedings