No. 3--02--0446 _________________________________________________________________

							IN THE

							APPELLATE COURT OF ILLINOIS

							THIRD DISTRICT

							A.D., 2003

THE PEOPLE OF THE STATE         )  Appeal from the Circuit Court

OF ILLINOIS,                    )  of the 10th Judicial Circuit,

					       )  Tazewell County, Illinois

	Plaintiff-Appellee,        ) 

					       )

	v.                         )  No. 99--CF--656

									  ) 

ROBERTO MENDEZ,                 )

a/k/a ROBERTO BARAJOS,	       )	Honorable

	               		  )  J. Peter Ault

	Defendant-Appellant.       )  Judge, Presiding

________________________________________________________________

	JUSTICE HOLDRIDGE DELdelivered the Opinion of the court:

________________________________________________________________

	The defendant, Roberto Mendez, pled guilty to unlawful

delivery of a controlled substance.  720 ILCS 570/401(a)(2)(B)

(West 1998).  The trial court sentenced defendant to 11 years’

imprisonment.  Defendant filed a pro se postconviction petition which was dismissed by the trial court as frivolous and patently

without merit.  Defendant appeals, contending (1) his petition

stated the gist of a claim of ineffective assistance of counsel,

and (2) Public Act 83--942 (Pub. Act 83--942, eff. November 23,

1983), which amended the Post-Conviction Hearing Act to allow for

summary dismissal of a postconviction petition, violates the

single subject clause of the Illinois Constitution (Ill. Const.

1970, art. IV, §8(d)).  We reverse and remand.

	FACTS

	Defendant pled guilty to unlawful delivery of a controlled

substance.  In the factual basis for the plea, the State asserted

that an undercover police officer had arranged to purchase

cocaine from defendant for $2,200.  The officer later met

defendant in a store parking lot.  Defendant handed the officer a

bag containing what appeared to be cocaine and the officer handed

defendant $2,200.  The substance was later analyzed and found to

be 104.2 grams of cocaine.  The trial court accepted defendant’s

guilty plea and sentenced him to 11 years’ imprisonment.

	Defendant subsequently filed a pro se postconviction petition in which he asserted, among other things, that he had been entrapped into committing the offense.  In support of his

claim, defendant asserted that he had no prior criminal record,

he was not predisposed to committing the offense, that an

informant had approached him more than 15 times before he agreed

to sell the cocaine and that he had repeatedly canceled meetings

with the informant.  

	Defendant further asserted his trial counsel was ineffective

because he only spoke to defendant on two occasions.  On those

occasions, counsel’s advice was limited to urging defendant to

plead guilty to the offense.  Defendant also stated that counsel

did not investigate potential defenses.  In his petition,

defendant stated he wanted to withdraw his guilty plea.  The

trial court dismissed defendant’s petition as frivolous and

patently without merit.

	DISCUSSION

	On appeal, defendant contends the trial court erred in

dismissing his postconviction petition because it stated the gist

of a claim of ineffective assistance of counsel for failure to

assert an entrapment defense.

	The Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2000)), provides a collateral remedy in three stages for defendants claiming substantial violations of their

constitutional rights.  People v. Eddmonds, 143 Ill. 2d 501, 578 N.E.2d 952 (1991).  At the first stage, the trial court may

summarily dismiss a petition if it is frivolous and patently

without merit.  725 ILCS 5/122--2.1(a)(2) (West 2000).  However,

the court cannot engage in fact-finding or consider arguments

from the State because all well-pleaded facts are assumed to be

true.  See People v. Coleman, 183 Ill. 2d 366, 701 N.E.2d 1063 (1998).  To avoid summary dismissal, a pro se petition need only contain a simple statement that presents the gist of a

meritorious constitutional claim.  People v. Patton, 315 Ill. App. 3d 968, 735 N.E.2d 185 (2000).  If such a statement has been

advanced, counsel should be appointed and given an opportunity to

amend the petition.  725 ILCS 5/122--4, 122--5 (West 2000).  We conduct a plenary review of orders summarily dismissing

postconviction petitions.  Coleman, 183 Ill. 2d 366, 701 N.E.2d 1063.

	A defendant claiming ineffective assistance of counsel must

prove that: (1) his attorney’s representation fell below an

objective standard of reasonableness; and (2) he was prejudiced by the deficient representation.  Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Albanese, 125 Ill. 2d 100, 531 N.E.2d 17 (1988).

	In his petition, defendant asserted his attorney urged him to plead guilty on the two occasions when they met.  Defendant

stated his attorney did not inform him of any other options or

investigate potential defenses.  Therefore, defendant’s petition

indicated that he was not informed of the possibility of an

entrapment defense.  

	Defendant further asserted that he was approached more than

15 times before he eventually agreed to sell cocaine to an

informant, that he repeatedly canceled meetings with the

informant and that he did not have any prior criminal history. 

There is nothing in the record to contradict defendant’s

assertions in this regard.  Defendant’s allegations state the

gist of a claim that counsel was ineffective for failing to

investigate a potential entrapment defense or advise defendant of

that defense.  See People v. Day, 279 Ill. App. 3d 606, 665 N.E.2d 867 (1996) (defendant was entrapped where he initially

resisted numerous requests for cocaine by a paid informant and an

undercover officer, and his lack of a prior criminal history as

well as other factors showed he was not predisposed to commit the

offense); People v. Alfaro, 227 Ill. App. 3d 281, 592 N.E.2d 1117 (1992) (defendant stated the gist of a claim of ineffective

assistance of counsel in alleging trial counsel failed to

investigate a viable entrapment defense).

	The State contends defendant has waived his claim of

ineffective assistance of counsel because he pled guilty to the

offense.  The State correctly asserts that a guilty plea

generally results in waiver of challenges which are not related

to the voluntariness of the plea.  See People v. Edwards, 197 Ill. 2d 239, 757 N.E.2d 442 (2001).  

	However, in this case, defendant has sought to withdraw his

guilty plea due to the alleged ineffectiveness of his trial

counsel.  A court should allow a defendant to withdraw his guilty plea when the plea was based on a misapprehension of the law or

when he has a defense worthy of consideration.  People v. Williams, 328 Ill. App. 3d 879, 767 N.E.2d 511 (2002).  A guilty plea is voluntary only if it is entered with the assistance of

competent counsel.  People v. Algee, 228 Ill. App. 3d 401, 591 N.E.2d 1001 (1992).  Therefore, defendant may be entitled to withdraw his guilty plea if he can establish that his counsel was

ineffective for failing to advise him of the defense of

entrapment.  Accordingly, defendant’s guilty plea does not result

in waiver of his claim.  

	In sum, we conclude that defendant alleged the gist of a

constitutional claim that his plea was involuntary because his

attorney was ineffective in failing to inform him of the defense

of entrapment.  Accordingly, defendant is entitled to appointment of counsel and further consideration pursuant to sections 122--4

through 122--6 of the Act.  

	Defendant also contends the summary dismissal provision of the Post-Conviction Hearing Act is unconstitutional because it

was enacted in violation of the single subject rule.

	In finding that the trial court erred in dismissing defendant’s petition, we have afforded defendant relief from the summary dismissal provision of the Act.  Therefore, defendant’s challenge to the constitutionality of the statute is moot.  See

Teachers Insurance & Annuity Association of America v. La Salle National Bank, 295 Ill. App. 3d 61, 691 N.E.2d 881 (1998).  

	We also note that our supreme court recently held the

enactment of Public Act 83--942 did not violate the single

subject rule of the Illinois Constitution.  People v. Boclair, 202 Ill. 2d 89, ___ N.E.2d ___ (2002).  Accordingly, defendant’s

claim that the summary dismissal provision of the Act is

unconstitutional is without merit.

	CONCLUSION

	For the foregoing reasons, the judgment of the circuit court

of Tazewell County is reversed, and the cause is remanded for further proceedings.

	Reversed and remanded.

	MCDADE, P.J., AND and LYTTON, J., CONCURconcur.