No. 2--08--0008 Filed: 12-15-09

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Lak e C ou nt y. ) Plaintiff-Appellee, ) ) v. ) No. 97--CF--3161 ) JERMAIN

E USHER, ) Honorab le ) John T. Phillip s, Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE BOWMAN de livered

the opinion of the c ourt: Following a bench trial, def

endant, Jermain

e Usher, was co nvicted of armed vi ole nce (720 ILCS

5/33A-- 2 (West 1996)) and sentenced to 40 years' imprisonment . He subsequently

filed a petition under the P ostConviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2006) ), alleging, amon g other things , that his tr ial couns el was ineffecti ve for failing to

file a notice of

appeal. The tri al court summari ly dismissed defendant's

petition, and defendant contes ts this first -stage dismissal on appeal.We reverse and remand. I. BACKGROUND Defendant was charged initially with arm ed violence, aggrava ted battery with a firearm (720 ILCS 5/12- -4.2(a)(1) (West 1996)), aggravated discha rge of a firearm ( 720 ILCS 5/24--1.2(a)(2) (West 1 996)), and aggravated battery (7 20 ILCS 5/1 2--4(a) (West 1996)). The charges stemmed from the drive-by shooting ofNo. 2--08--0008

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Noble Blanchard on No

vember 20, 1997, in No rth Chicago.Blanchard was sitting i n the passenger seat of a

car driven by Karinder Gordon. At defendant's

bench trial on August 18, 1998, both Blanchard and Gord on testified that they saw defendant leaning out of the driver's side window of a bl ack car, holding a gun. The

men ducke d and heard shots. A bullet went

through th

e rear window o f the car Gordon w as driving a n d struck Blanchard in the back of

the head. Defendant pre

sented three witnesses who testified tha

t although defendant was in the vi

cinity of th e shooting an

d was d riving a black car, he was n ot the person who shot Blanchard, becau

se either he was

with the w itnesses or th

ey could see him driving off

when they heard the gunshots. The trial court found defendant g uilty of all four counts. OnSeptember 2, 1998, defendant filed a motion for a new trial, a nd on January 8, 1999, he filed a supplemental motion for a new trial. On June 4, 1999, after defendant presented additional witnesse s' testimony

, the tria l court denied the motion. Defendant was eligib le for an extended term of imprisonment

based on a prior con

viction, and on June 1 8, 1999 , the trial co urt sentenced

him to 40 y

ears' imprisonment

for the armed violence charge, finding that the remaining charges merged.The trial court then admonished defendant

regarding his right

to appeal. On July 7, 1 999, defen

dant filed a motio n for a new tria l and to reconsider his sentence . On August 23, 1999, t rial counsel

informed the tri al court that after researching t

he issue and speaki ng with defendan t's mother, he had decided to withdraw the m otion to reconsider the sentence because he had no basis f or asking the trial court to reduce th e sentence oth

er than mercy. Trial counsel adm itted that he had not discussed wit

hdrawing the mo

tion with defendant, so

the trial court

ordered him to con

sult with defendant beforewithdrawing the motion. On August 27, 1999, trial counsel stated that he would go ahead with the motion because he had bee n unable to reach defend ant. The trial court denied the motion.No. 2--08--0008

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Severa l years later, in J

uly 2004 , defendant wro

te a letter to t

he court clerk,

stating, "PL EASE B E ADVISED that I am trying to ascertain the current status of my n otice of appeal." On January 3, 2005, the trial court ordered the clerk to

send a letter not

ifying defendant

that there w

as no notice o f appeal on file. In December 2005, de fendant wrot e another letter to the court clerk, w

hich asked "[h]o

w to get a late n

otice of appeal accepted in to [ sic ] the courts, Being [ sic ] that it is n

ot my fault w

hy I have not f

i ld [ sic ] a [ sic ] appeal yet!" The trial c ourt treated this as a motion and d enied it on Decembe r 21, 2005. On February 14, 2006, defendant filed a pro sepetition for relief from judgment under section 2--1401 of the Code of Civil Pro cedur e (Code) (735 ILCS 5/2--1401 (West 2006)). He alleged,

amon g ot her th ings, that h is tr ial co unsel waive d his right t o appe al and that " trial couns el did n't attacked [ sic ] this issue [of

newly discover ed evide nce] in the

appella te court to determine if t

his ruling denieing [ sic ] the motion for a new trial cou ld withstand a

due process

test." Th e State filed a respo nse, and in defendant's July

2006 reply,

he stated that

trial counsel " refused/failed or did NOT kn

ow how t o perfect my appeal in this case ." On October 31 , 2006,

attorney James Schwarzbach entered an appearance on defendant's behalf. He filed a postconviction petition for defendant on May 3 0, 2007 . In it, he alleged, among oth er things, th

at trial counsel

was ineffective in that he "failed to file a notice of appeal, or to perfect the Defendan t's appeal rights after the denial of De fendant's motion for recons ideration of sentence." He further alleged that: (1) defendant "was not properly advised by either the Court or his trial attorn ey of his appeal rights";(2) "trial counsel failed to file a timely n

otice of appeal;

and, in fact,

a notice of appea

l was never filed" ; (3) defendant "made consistent efforts to ascertain the status o f his appeal, in t he belief that h

is appellate rights

had been perfecte d; and sought n otificatio n from the court as to the st atus of his a

ppeal"; and (4) defendant "at all times prior to January 2005 w as led to believe th

at a notice of

appeal, and appeal had been filed in h isNo. 2--08--0008

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case ." Attachments

to the petit

ion included a J anuary 3, 2 005, lett er from the cou rt clerk stating that i n response to defenda nt's letter regard ing the status of his appeal, th

e trial court h

ad reviewed

his file and determined that n

o notice of ap peal had been filed. At a hearing on June 28, 20

07, atto rney Schwarz

bach informed

the trial court that

the postconviction petition was brought i ndependently of defendant's sect

ion 2--14 01 petitio n and was not meant to supersede it. The trial cou

rt said it wou

ld continue the section 2--1401 petition while it considered the postconviction petition. In a written order entered on August 21, 2 007, the trial court summarily dismis sed defendant's postconviction petition as

frivolous and patently without merit. Regarding the issu e of the failur

e to file a notice of appeal, the t

ria l court sta ted that defendan t was advised of

his appeal rights w

hen he was sentenced, so he could not claim that he was not aware of his ab ility to file an appeal. Th e trial court f

urther statedthat defendant merely alleged that no appe al was filed and did not allege that he in structed his attorney to

file an appeal. Th

e trial court al

so ruled that defendant f

ailed to include a

supporting aff

idavit regarding whethe

r he had asked his at

torney to file an appeal. On September 19, 2 007, att orney Schwar

zbach filed a mot

ion to reco ns ider the dismissal of the postconvict

ion petitio n or, alternat

ively, to gran

t leave to file additional affidav its. He argued that t

he trial court should const

rue defendant's pro sesection 2--1401 petition and July 2006 reply to the Sta te's response as verificatio n or affidavits in support

of the postco nviction pet

ition. T he trial court

denied the motion on December 27, 2007, and defenda nt timely appealed

. II. AN ALYS IS On appe al, de fendan t argues that t he tri al cou rt erre d by summ arily dis miss ing h i s postconviction petition, because he stated the gist of a constitutional claim of ineffective assistanceNo. 2--08--0008

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of counsel. The Act

creates a three-stag e process for the adjudica tion of pos tconvict

ion petitions in noncapital ca ses. People v. Harris , 224 Ill. 2d 115, 125 (2007). I n the first stage, the trial

cour t independ ently determines, without inpu t from the S tate, whe ther the petition is

"frivo lous or is patently without merit." 725 IL CS 5/122-- 2.1(a)(2) (West 20 06); People v. Boclair , 202 I ll. 2d 89, 99 (2002). A petition is frivolous or patently without merit only if it has no arguable basis in law

or fact. People v. Ho dges , 234 I ll. 2d 1, 16 (2009). This is true if the petition is based on an indisp u tably

meritless legal theory , such as one that is completely c ontradicted by the r ecord, or a fanciful factual allegation. Hodges , 234 Ill. 2d at 16-17. At thefirst stage, the pe titi on's allega tions, liberall y construed and taken as true, need to prese nt only "the

gist of a constitutional claim." People

v . Edwards , 197 I ll. 2d 239, 2 44 (2001) . The pet ition nee ds to set forth just a l im ited amou nt o f detail and does not need to set forth the claim in its entirety

. Edwards , 197 Ill. 2d at 244. I f the petition is frivolous or p aten tly without merit, the trial court must dismiss it. 725 ILCS 5/122-- 2.1(a)(2) (West 2006) . Othe rwise , the p roceed ings move on to the second stage. Harris , 224 Ill. 2d 115. We review de novo a trial court's first-stage dismissal of a postconviction petition. People v. Shaw , 386 Ill. App. 3d 704, 708 (2008). For a claim of ineffective assistance of counsel, a de fendant must satisfy the two-pronge d test set forth in Strickland v. Washington , 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (19 84)

. Hodges , 234 Ill. 2d at 17. The defendant must show that (1) tr ial couns el's performance fell below

anobjective standard of reasonableness, and (2) the deficient performance re sulted in prejudice. Hodges , 234 I ll. 2d

at 17. At the first stage of a postconviction proceeding , the trial court may not dismiss a petition alleging ineffective a ssistance of counsel i f it

arguably satisfies the Strickland

test. Hodges , 234 Ill. 2d at 17.No. 2--08--0008

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Defendant

argues that the allegationsof his petition, viewed against the backdrop of the trial record, state at l east the

gist of a claim of i

neffective assis tance of

counsel, because

trial c ou nsel either failed to consult wi

th him abou

t an appe al or disr

egard ed his instr

uctions to file an a ppeal. Defendant

argue s as follow s. The record shows that it is re asonable to conclu de that he wanted to appeal his conviction. He plea ded not g uilty to the cha

rges, p resente d witnesse s in his defense, and after he was found guilty , he presented newly discovered evidence to support his claim of innocence. There was a breakdown of communication between him and his trial counsel after the sentence, as the record shows that trial counsel did not advise defendant of co unsel's in tent to withdraw the motion to reconsider the sentence, and defe ndant was not present at the hearing on the mo tion. Thereafter, defenda

nt made r epeate d effor

ts to pursue an appeal, such as writing letters to the c ourt clerk and filing pleadings alleging that trial counsel had " 'wa ived' " hi s appellate rights or " 'failed/refused' " to file

an appe al. Acc ording t

o defenda nt, these facts support at least the gist of a claim that tria l counsel either f ailed to c onsult with

him aboutan appeal or refused to file the appea l at his req uest. Defendant

relies primarily on two c ases, Roe v. Flores -Ortega , 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000), and People v. Rivera , 342 Ill. App. 3d 547 (2003). In Flores -Ortega , the defenda

nt filed a federa l habeas petition allegi

ng that h is trial c ounsel wa s ineffe ctive be cause she had failed

to file a notice of appeal after promising to do so. Flores -Ortega , 528 U.S. at 474, 145 L. Ed. 2d at 993, 120 S. Ct. at 1033. Applying the first prong of the Strickland

t est, whether t rial

couns el's representation fell below an objective standard of reasonableness, the Court stated that trial counsel has a con stitutiona lly imposed du

ty to consult with the defendant about an appeal where either a rational defendant would want to appeal or the particular defendant reasonably demonstratedNo. 2--08--0008

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to counsel a

desir e to appea

l. In making th

is determ ination, w hether t he defe ndant ple aded g

uilty is a highly releva nt facto r becau se a gu

ilty plea reduces the number of appeala ble issue s and bec ause such a plea

may indicate that the de fendant wanted an end to judicial proceedings. Flores -Ortega , 528 U.S. at

480 , 14 5 L. Ed. 2d at 9 97, 120 S. Ct. at 1036. T he Court st

ated tha t it expecte d that in the va st ma

jo ri ty o f cases trial counsel would have a duty to consult with the defendant about an appeal. Flores -Ortega , 528 U.S. at 481, 145 L. Ed. 2d at 997, 120 S. Ct. at 1037. Trial couns el' s performance would also

be unrea sonable i f he does not follow

a defen dant's i nstructions to fil e a notice of appeal. Flores -Ortega , 528 U.S. at 477, 145 L. Ed. 2d at 995, 120 S. Ct. at 1035. For the second prong of the Strickland test, w hether trial counsel's deficient perf ormance prejudiced

the defendant, the Court stated that a defendan t must show that ther

e is a re asonable probabil ity

that he wo

uld have timely appe aled

if not for trial cou nsel's f ailure to consult wi

th him about an appeal. Fl ores-O rtega , 528 U.S. at 484, 145 L. Ed. 2d at 999, 120 S. Ct. at 1038. The defendant is not required to specify

the points he would have raised on appeal or show that they have potential merit. Flores -Ortega , 528 U.S. at 486, 145 L. Ed. 2d at 1001, 120 S. Ct. at 1039-40; see also People v. Torres , 228 I ll . 2 d 382, 395 (2 008) ( applying Flores -Ortega to case where postconviction petition alleged that defense counsel was inef fective for failing to file a notice of appeal). In Rivera , 342 Ill. App. 3d at 548, the defendant a rgued that the trial court er

red in sum

marily dismissing his postconviction petition, which alleged that his attorney was ineffe ctive fo r failing to follow the defendant's request to perfe ct an appeal. The State ar gued th at the de fendant

did not file

anaffida vit suppor ting his a llegat ion that he

asked his lawyer to f

ile an appeal. Rivera , 342 Ill. App. 3d at 549. Citi ng Flores -Ortega , this cour t held tha t such an a

llegat ion is not ne cessar

ily c ritical toNo. 2--08--0008

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anineffective assistance of counsel claim bec ause an attorn ey h as an af firmativ e obliga

tion to consult wi

th his clie nt about a n appea l if it is re asonable

to believe that

either a rational defendant would want an a

ppeal o r t he parti cular de fendant reasona bly demonstr

ated a de sire to ap

peal. Rivera , 342 Ill. App. 3d at 551. We held that there was " at least a factual issue w hether [the] defendant asked his lawye

r to perf ect an appeal or whether a reasona ble defendant would have wanted to appeal under the circu mstances," and we therefore reversed the trial court's summary dismissal of the petition. Rivera , 342 Ill. App. 3d at 551. The State main

tains that althoug h defend ant arg ues on ap peal tha t his trial c ounsel wa s ineffective because

counsel e ither fa

iled to consult with defendant about an appeal or disreg arded his instructi ons to file

an appe al, these

claims ar e forfe ited bec ause def

endant di d

not make suc h claims in his postconviction petition. The State argues that neither defenda nt's section

2--1401 filing

nor the claims made in it are part of or at issue in the instant postconviction procee din gs and that defendant merely alleg ed in hispostconvict ion petitio n that

trial counsel w

as ineffective f

or failing to file

a notice of appeal.

The States c

ites People v. Hernan

dez , 283 Ill. App. 3d 312, 31 8 (1996), where the appellate court held

that in order fo r a postconvic tion petition to satisf

y Strickland 's first prong of

deficient performance, the defendant must either allege that h e informed couns

el of a desire

to appeal or expla in why he did not request an app eal earlier. The State furth

er cites People v. Pendleton , 223 Ill. 2d 458, 474-75 (2006),and People v. Johnson , 154 Ill. 2d 227, 241 (1993), for the propositi on that de fendant's lack of a ffidavits in su pport of his postconviction claims, when

he was represented by

counsel, gives rise to the presumption th at there was no factualbasis to suppo rt a claim that t rial counsel failed to consult with defendant about an appeal or to follow through with his requ

est to file an appe

al. The Stat

e argues that t

he record support

s thi s presumptionNo. 2--08--0008

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because attorney Sch

warzbach made many

requests for and

was granted additional time to familiarize hims elf with the case and examine de fend ant's claims. Finally, the State argues that Flores-Ortega and Riveraare distinguish able because (1) tho

se defendants specif

ically alleged that t

heir counsel h

ad failed to file appeal

s after they had been ins

tructed to do

so, and (2) th

ose defendants w

ere pro seand did not have the benefit of counsel. Ac

cording to th

e State, defendan

t "has already recei

ved the relief grant

ed in the cases on w

hich he relies: review of the record by post-conviction counsel to dete rmine what, if any, factual or legal bas is there may be for any claim rela

ting to the la

ck of a direct appeal,

and the filing of a petition reflecting that review and legal judg ment." We conclude

that t he trial court erred in dismissing defendant's postconviction petition as frivolous and patently without merit, beca use it contained the gist of a constitutional claim of ineffective assistance of counsel based on thefailure to file an appeal. Althoug

h the State

appare ntly would like to hold

defenda nt's pet ition to a hi gher st

andard t han petit ions from p ro se defen dants because defend ant wa s repre sente d by couns el, th e Act d ictat es onl y one stan dard fo r firs t-st age postconviction petitions, that being whether the petition is frivolous or patently without merit. 725 IL CS 5/122--2.1(a)(2) (West 2006). The cases cited by the State in support of an alleged distinction

a re distingu

ishable b ecause

they relate t o the sec ond stag e of postc onviction procee dings ( Pendlet on , 223 Ill. 2 d at 474-7 5; Johnson , 154 Ill. 2d at 233), where, to survive a motion to dismiss, the petition must meet the higher standard of making a substantial showing of a constitutional violation ( People v. Johnson , 205 Ill. 2d 381, 388 (2002)). Both the trial court and the State emphasized the lack of an affi davit to su pport defend ant's postconviction petition. However, our supreme court has stated that a postcon viction petit ion's allegations must be supported by either accompa nyi ng aff idavits or the record

( People v. Coleman ,No. 2--08--0008

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183 Ill. 2d 366, 381 (1998)), thereby recognizing that consideration of the record is permissible and that affidavits are not always necessary . Still, review of the record is limited to determining whether it supports or contradicts the petition's allegations (see Coleman , 183 I ll. 2d at 38 1-82), so we agree with the State that the allegations in defendant's sec tion 2--1401 petition were not incorpor ated into the postconviction petition and that it would be improper to let those allegations serve as an "affid avit" for the postconviction petition. At the s ame time, the lack of an affidavit is not fatal where the court ca n easily infer tha t the only affida vit the de fendant

could pro vide, othe

r than his own, would be that of his attorney. People v. Rogers , 372 Ill. App. 3d 859, 866- 67 (2007) . That is the case here, so defenda nt was not r

equired to include

an affi davit to su

pport his a

llegat ions. Defendant

clearly a lleged in his postconviction p etition that t rial counsel failed to file a notice of appeal. We recognize that unlike thedefendants in Flores -Ortega and Rivera , defendant did not directly allege that he asked counsel to file a notice of appeal. We als o rec ogni ze that the f ailure to follow a defendant's instructions to file a notice of appe al is one way to show deficient performance under the first prongof the Strickland test for ineffective assistance of counsel. See Flores -Ortega , 528 U.S . at 477, 145 L. Ed. 2d at 995, 120 S. Ct. at 1035. This proposition is also rec ognized i n Hernandez , 283 I ll. App. 3d at 318, the

case re lied on by

the State . Howeve

r, as Flo res- Ortega instructs us, trial counsel had a constitutional duty to consult with defendant about his appea l rights if defe ndant re asonably

demonstr

ated to c ounsel a d

esire to a ppeal or if a rati onal def

endant in his position would have wanted to appeal. See Flores -Ortega , 528 U.S. at 480, 145 L. Ed. 2d at 997, 120 S. Ct. at 1036. Hernandez , which was decided before Flores -Ortega , does not r ecogn ize this poin

t. Inthis case, the record shows both that defendant demonstrated a desire to appea l and that a rational defendant in his place would have wanted to appeal. I nstead of pl ea di ng gu il ty, defenda

nt went toNo. 2--08--0008

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trial. He further pres ented wit nesses in hi s d ef en se an d, af

te r b ei ng fo un d g ui lt y, he filed a motion for a new trial and presented the testimony of additional witnesses. Cf. Torres , 228 Ill. 2d at 401-03 (the de fendant did not establish any gr ound that would have given his trial counsel reason to believe that h e demonstrated

an interest in appeal ing or that a rational defe ndant in his situation would have wanted to appeal, where, among o

ther things,

the evidence wa

s overwhelming and the defendant h ad pleaded guilty, statedthat he wanted to save his family fr om the aggravation of a trial, admitt

ed that he had no

defense against the charges, h

ad always indicat

ed that he understood the sentencing r ange, and was given the minimum sentence allow

ed by law). Furthe r, defend ant sufficiently alleg ed in his postconviction petition that trial counsel had not consulted with him about an appeal, by stating that trial counsel had not "properly advised" him of "his appeal rights." Defenda nt bolstered this allegation by stating that he

had "made consistent efforts to ascertain the status of

his appeal, in the belief that his appel late rights had been p erfected; and sought notification from the court

as to the stat

us of his appeal" and that h

e "at all times

prior to January 2005 w

as led to believe that a notice of appeal, and appe al had been filed in his case." Defendant attached to the petition a letter from the court cle rk in response to

his question

about the st

atus of his a

ppeal, stating

that the court had revi

ewed his file and det

ermined that no n

otice of appeal h

ad been fil ed. The record also supports defendant's allegati on that he made a

ttempts to det

erminethe status o f his notice o f appeal. Thus, defendant's

petition sufficiently alleg ed that trial counsel had nei ther consulted with him about an appea l nor filed an appeal

. As for the prejudi

ce prong of the Strickland

test, defendant had to show that there arguably was a reasonable probabilit

y that he would have timely appealed i f trial counse l had consulted w

ith him abou

t an appeal. Defendant's allegati ons that he bel ieved that his appeal had bee n perfected and m ade efforts toNo. 2--08--0008

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determine the status o f his appeal are suppo rted by the record and sufficiently indicate that he would have timely appealed had hi

s attorney co nsulted wit

h him about an

appeal. In sum, defendant' s allegations, considered in light of the rec or d, argua bly satisfy both prongs of the Strickland

test, so the

trial court erred

in summarily dismissing his postconviction petition. III. CONCL USION For the fore going

reasons , we rev erse the order of the circuit court of L ake County dismissing defenda nt's post convicti on petition , and we r emand the

cause f or furth er proc eeding s. Reversed and remanded. HUTCHINSON and BU

RKE, JJ., concur.