Docket No. 87930–Agenda 16–May 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 

								DONALD EDWARDS, Appellant.

Opinion filed September 20, 2001.

	JUSTICE McMORROW delivered the opinion of the court:

	The defendant, Donald Edwards, filed a pro se post-conviction petition in the circuit court of Champaign County pursuant to the

Post-Conviction Hearing Act (725 ILCS 5/122–1 et seq. (West 1998)) in which he alleged that, following the entry of his guilty

plea, his court-appointed attorney refused his request to “file an

appeal” and became “totally unavailable in regard to the case.” The

circuit court dismissed the petition as frivolous or patently without

merit. See 725 ILCS 5/122–2.1(a)(2) (West 1998). The appellate

court affirmed. 305 Ill. App. 3d 853. For the reasons that follow,

we reverse the judgments of the circuit and appellate courts.

BACKGROUND

	Defendant was indicted in 1997 on one count of unlawful

possession of a controlled substance and one count of unlawful

possession with intent to deliver a controlled substance. In October

1997, while before the circuit court, defendant stated that he

wished to plead guilty to the count of unlawful possession with

intent to deliver a controlled substance. In exchange for

defendant’s plea, the State agreed to drop the remaining count and

recommend a term of imprisonment not to exceed six years. The

circuit court admonished defendant of his rights, accepted the plea,

and sentenced defendant to six years’ imprisonment.

	The circuit court then informed defendant that, although he

had pled guilty, he retained the right to appeal. Pursuant to

Supreme Court Rule 605(b) (145 Ill. 2d R. 605(b)), the circuit

court explained to defendant the conditions to pursuing an appeal

from a guilty plea that are set forth in Supreme Court Rule 604(d)

(145 Ill. 2d R. 604(d)). Rule 604(d) requires a defendant who

wishes to appeal from a judgment entered upon a guilty plea to first

file a motion in the circuit court to withdraw his guilty plea within

30 days of sentencing. 145 Ill. 2d R. 604(d). Such a motion must specify the grounds for withdrawal of the plea. 145 Ill. 2d R.

604(d) (“The motion shall be in writing and shall state the grounds

therefor”). In the case at bar, the circuit court properly admonished

defendant that he could appeal from “the judgment of conviction

on [the] plea, or the sentence imposed,” but only after filing “a

written motion to withdraw or take back your plea.”

	No further pleadings were filed after sentencing.

	In February 1998, defendant filed a pro se petition for post- conviction relief pursuant to the Post-Conviction Hearing Act (725

ILCS 5/122–1 et seq. (West 1996)). Defendant made a number of allegations within his petition including, inter alia, an allegation that his attorney failed to subpoena witnesses that defendant had

requested and an allegation that his attorney showed a lack of

interest in his case. Defendant also alleged the following:

		“I requested to [my attorney] Lenik to file an appeal, after

the Judge (DeLaMar) explained to me that I could do so.

Atty. Lenik stated in regard to the appeal, quote [sic] On what grounds? unquote [sic] Atty. Lenik had taken it or decided for herself not to file an appeal, in spite of my

numerous requests to. She (Atty. Lenik) also became

totally unavailable in regard to the case in spite of the

repeated calls by my wife on my behalf.”

	The circuit court found that “[t]his allegation [was] in essence

a claim of ineffective assistance of counsel for failure to allow the

Petitioner to appeal.” After reviewing pertinent case law relating

to claims of ineffective assistance of counsel and Rule 604(d), the

circuit court concluded that “it would appear that the Petitioner

cannot just make the bare allegation that he requested counsel to

file a motion to withdraw his plea. The Petitioner must show

prejudice. In the least, [this] would apparently mean that the

Petitioner would have to show grounds for a motion to withdraw

a guilty plea.” The circuit court determined that “[t]he Petition for

Post-Conviction Relief as provided to this Court does not show

*** [any] recognized issues that can be raised in a Motion to

Withdraw Guilty Plea.” The circuit court then dismissed

defendant’s petition as frivolous or patently without merit. See 725

ILCS 5/122–2.1(a)(2) (West 1998).

	Defendant appealed, arguing that the circuit court erred in

concluding that defendant had to show how he was prejudiced by

his attorney’s failure to file a motion to withdraw his guilty plea.

Relying upon this court’s decision in People v. Moore, 133 Ill. 2d 331 (1990), defendant contended that prejudice should be

presumed. In Moore, this court held that the prejudice prong of the test for ineffective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)) need not be established where counsel fails to perfect a

defendant’s appeal after trial and the defendant subsequently seeks

post-conviction relief. In such cases, prejudice is presumed. Moore, 133 Ill. 2d at 339.

	The appellate court, however, distinguished Moore on the ground that the defendant in that case was convicted following a

trial. Citing People v. Wilk, 124 Ill. 2d 93 (1988), and People v. Wendt, 283 Ill. App. 3d 947 (1996), the appellate court concluded that prejudice should not be presumed for a defendant who has

pleaded guilty and agreed to a specific sentence. 305 Ill. App. 3d

at 857-58. Finding no grounds for withdrawing the guilty plea set

forth in defendant’s pro se petition, or any explanation of how defendant was prejudiced by his counsel’s failure to file the motion

to withdraw the guilty plea, the appellate court affirmed the

judgment of the circuit court. 305 Ill. App. 3d at 858.

	We granted defendant’s petition for leave to appeal (177 Ill.

2d R. 315(a)) and, on November 16, 2000, issued an opinion

affirming the judgment of the appellate court. Defendant

subsequently filed a petition for rehearing, which we allowed. 155

Ill. 2d R. 367; 134 Ill. 2d R. 612(p).

ANALYSIS

I

	The Post-Conviction Hearing Act (Act) (725 ILCS 5/122–1 et seq. (West 1998)) provides a remedy for defendants who have suffered a substantial violation of their constitutional rights at trial.

Under the Act, a post-conviction proceeding not involving the

death penalty contains three stages. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). At the first stage, the circuit court must independently review the post-conviction petition within 90 days

of its filing and determine whether “the petition is frivolous or is

patently without merit.” 725 ILCS 5/122–2.1(a)(2) (West 1998).

If the court determines that the petition is either frivolous or

patently without merit, the court must dismiss the petition in a

written order. 725 ILCS 5/122–2.1(a)(2) (West 1998). A post-

conviction petition is considered frivolous or patently without merit

only if the allegations in the petition, taken as true and liberally

construed, fail to present the “gist of a constitutional claim.”

Gaultney, 174 Ill. 2d at 418, citing People v. Porter, 122 Ill. 2d 64, 74 (1988). The “gist” standard is “a low threshold.” Gaultney, 174 Ill. 2d at 418. To set forth the “gist” of a constitutional claim, the

post-conviction petition “need only present a limited amount of

detail” (Gaultney, 174 Ill. 2d at 418) and hence need not set forth the claim in its entirety. Further, the petition need not include “legal

arguments or [citations] to legal authority.” Gaultney, 174 Ill. 2d at 418.

	In his special concurrence, Justice Fitzgerald notes that several

decisions from our appellate court have stated that, under the

“gist” standard, the pro se defendant must “ ‘plead sufficient facts from which the trial court could find a valid claim of deprivation of

a constitutional right.’ ” (Emphasis in original.) Slip op. at 18

(Fitzgerald, J., concurring), quoting People v. Lemons, 242 Ill. App. 3d 941, 946 (1993). In our view, the “sufficient facts” test

used in Lemons and other appellate decisions is at odds with this court’s holdings and should be avoided.

	On its face, the “sufficient facts” test requires a pro se defendant to file a factually complete petition at the first stage of

the post-conviction proceedings. In other words, the defendant

must allege facts that would support all the elements of a constitutional claim. This conclusion follows from the requirement,

as stated in Lemons, that the facts alleged must be such that the “trial court could find a valid claim of deprivation of a

constitutional right.” Lemons, 242 Ill. App. 3d at 946. Necessarily, if facts supporting all the elements of a constitutional claim are not

included in the petition, the circuit court could not “find a valid

claim.”

	However, requiring this type of full or complete pleading is

contrary to this court’s holding that the pro se defendant “need only present a limited amount of detail” (Gaultney, 174 Ill. 2d at 418) to survive summary dismissal at the first stage of the post-

conviction proceedings. It is also at odds with the “gist” standard

itself since, by definition, a “gist” of a claim is something less than

a completely pled or fully stated claim.

	Further, the “sufficient facts” test imposes too heavy a  burden

on the pro se defendant. While in a given case the pro se defendant may be aware of all the facts pertaining to his claim, he will, in all

likelihood, be unaware of the precise legal basis for his claim or all

the legal elements of that claim. In many cases, the pro se defendant will be unaware that certain facts, which in his mind are

tangential or secondary, are, in fact, critical parts of a complete and

valid constitutional claim. Under the “sufficient facts” test,

however, the pro se defendant must recognize the facts that need to be pled to support a “valid claim.” This is an unrealistic

requirement. Accordingly, we decline to adopt the “sufficient facts”

test.

	If the circuit court does not dismiss the post-conviction

petition as frivolous or patently without merit, then the petition

advances to the second stage. Counsel is appointed to represent the

defendant, if necessary (725 ILCS 5/122–4 (West 1998)), and the

State is allowed to file responsive pleadings (725 ILCS 5/122–5

(West 1998)). At this stage, the circuit court must determine

whether the petition and any accompanying documentation make

a substantial showing of a constitutional violation. See People v. Coleman, 183 Ill. 2d 366, 381 (1998). If no such showing is made, the petition is dismissed. If, however, a substantial showing of a

constitutional violation is set forth, then the petition is advanced to

the third stage, where the circuit court conducts an evidentiary

hearing (725 ILCS 5/122–6 (West 1998)). Gaultney, 174 Ill. 2d at 418.

	Although the circuit court in the instant case dismissed

defendant’s petition at the first stage of the post-conviction

proceedings, we note that the appellate court, in reviewing the

circuit court’s decision, applied both the first and second stage

standards for determining whether a noncapital, post-conviction petition should be dismissed. At the outset of its opinion, the

appellate court correctly indicated that the issue presented in this

case is whether defendant’s petition is frivolous or patently without

merit. 305 Ill. App. 3d at 855. At the conclusion of its opinion,

however, the appellate court stated: “We affirm the trial court’s

dismissal of defendant’s postconviction petition. Under the Post-

Conviction Hearing Act, defendant has the burden of showing a

substantial violation of his constitutional rights occurred in the

proceedings that resulted in his conviction. Defendant’s petition

failed to state a claim for ineffective assistance of counsel ***.”

305 Ill. App. 3d at 858.

	These latter statements are inappropriate, given the procedural

posture of this case. The relevant question in the case at bar is not

whether defendant’s petition makes a substantial showing of a

constitutional violation; that is a second stage inquiry. Rather, the

question we must address is whether, pursuant to section

122–2.1(a)(2) of the Act, defendant’s petition was properly

dismissed at the first stage of the post-conviction proceedings.

Thus, the issue before us is limited solely to whether defendant’s

“petition is frivolous or is patently without merit.” 725 ILCS

5/122–2.1(a)(2) (West 1998).

	Our review of the circuit court’s dismissal of defendant’s post-

conviction petition is de novo. As we have explained, “[d]ue to the elimination of all factual issues at the dismissal stage of a post-

conviction proceeding, the question is, essentially, a legal one,

which requires the reviewing court to make its own independent

assessment of the allegations. Thus, a court of review [is] free to

substitute its own judgment for that of the circuit court in order to

formulate the legally correct answer.” Coleman, 183 Ill. 2d at 388.

II

	Defendant argues that his post-conviction petition should not

have been dismissed as frivolous or patently without merit by the

circuit court because the petition raises a nonfrivolous claim that

his trial counsel was constitutionally ineffective for failing to file a

motion to withdraw his guilty plea and appeal. As noted, the

appellate court rejected this argument. The appellate court concluded that defendant’s petition was properly dismissed as

frivolous because the petition failed to include any explanation of

“how defendant was prejudiced or why his guilty plea should be

withdrawn.” 305 Ill. App. 3d at 858. Drawing a distinction

between convictions obtained following a trial and convictions

obtained by guilty plea, the appellate court rejected defendant’s

contention that prejudice should be presumed for a pro se defendant who alleges he has been deprived of his right to appeal

by his trial counsel’s failure to file a motion to withdraw a guilty

plea. In so holding, the appellate court distinguished the United

States Supreme Court’s decision in Rodriquez v. United States, 395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715 (1969).

	In Rodriquez, the defendant was convicted following a jury trial on several narcotics charges (see Rodriquez v. United States, 387 F.2d 117 (9th Cir. 1967)). The defendant’s trial counsel

subsequently failed to submit a notice of appeal within the

appropriate time period. Although the defendant thereafter

attempted to file a notice of appeal himself, the trial court ruled

that the expiration of the appeal period deprived the court of

jurisdiction over the matter. The defendant subsequently pursued

post-conviction relief under 28 U.S.C. §2255, alleging that he had

been improperly denied his right to appeal. Both the District Court

for the Northern District of California and the Court of Appeals for

the Ninth District denied the defendant’s petition, holding that he

had failed to disclose what errors he would have raised on appeal.

In rejecting this reasoning, the Supreme Court held:

		“The Ninth Circuit seems to require an applicant under 28

USC §2255 to show more than a simple deprivation of

[the right to appeal] before relief can be accorded. It also

requires him to show some likelihood of success on

appeal; if the applicant is unlikely to succeed, the Ninth

Circuit would characterize any denial of the right to appeal

as a species of harmless error. We cannot subscribe to this

approach.

			Applicants for relief under §2255 must, if indigent,

prepare their petitions without the assistance of counsel.

[Citation.] Those whose education has been limited and

those, like petitioner, who lack facility in the English language might have grave difficulty in making even a

summary statement of points to be raised on appeal.

Moreover, they may not even be aware of errors which

occurred at trial. They would thus be deprived of their

only chance to take an appeal even though they have never

had the assistance of counsel in preparing one. *** Those

whose right to appeal has been frustrated should be

treated exactly like any other appellants; they should not

be given an additional hurdle to clear just because their

rights were violated at some earlier stage in the

proceedings. Accordingly, we hold that the courts below

erred in rejecting petitioner’s application for relief because

of his failure to specify the points he would raise were his

right to appeal reinstated.” Rodriquez, 395 U.S. at 330, 23 L. Ed. 2d at 344, 89 S. Ct. at 1717.

	The appellate court in the case at bar limited Rodriquez to those instances where a pro se defendant alleges that he was denied a right to appeal following trial. Recognizing that “[m]ost

defendants are not trained in the law,” the appellate court

concluded that “defendants convicted after trial should not be

denied appellate counsel.” 305 Ill. App. 3d at 858. According to

the appellate court, “[f]or a defendant convicted after trial, who has

always professed innocence, the right to appeal insures due process

and provides an important safety net to those who may have been

wrongly convicted.” 305 Ill. App. 3d at 858.

	In contrast, the appellate court reasoned, “a defendant who

has admitted guilt [does not] need a safety net to protect against a

wrongful conviction.” 305 Ill. App. 3d at 858. The court noted

that, on appeal from a guilty plea, “[w]ith certain exceptions, the

defendant is ‘limited to structural challenges to the plea

proceedings themselves, i.e., whether the plea was entered voluntarily and intelligently based on competent advice from

counsel.’ ” 305 Ill. App. 3d at 858, quoting Wendt, 283 Ill. App. 3d at 957. According to the appellate court, “[a] defendant does

not need appellate counsel or legal expertise to allege his plea was

involuntary or that he was tricked into pleading guilty.” 305 Ill.

App. 3d at 858. Thus, the appellate court declined to presume

prejudice and, instead, concluded that it was appropriate to place the burden on the pro se defendant to explain why his guilty plea should be withdrawn.

	Shortly after the appellate court filed its opinion in this case,

the Supreme Court issued its decision in Roe v. Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000). In that

decision, the Supreme Court rejected the proposition that

Rodriquez is limited to those cases where a defendant’s conviction is obtained following a trial.

	In Flores-Ortega, the defendant was charged by the State of California with various crimes and entered a plea of guilty to

second degree murder. The trial court sentenced him to 15 years

to life in prison and, at that time, advised the defendant of his right

to appeal within 60 days. Although defense counsel wrote “bring

appeal papers” in her file, no notice of appeal was filed within the

applicable time period. Four months after he was sentenced, the

defendant attempted to file a pro se notice of appeal, which was rejected by the clerk of court. Having exhausted state habeas corpus proceedings, the defendant filed a federal habeas corpus petition alleging ineffective assistance of counsel on the basis of his

attorney’s failure to file the notice of appeal after allegedly

promising the defendant that she would do so.

	The Supreme Court held that Strickland provided the proper framework for evaluating the defendant’s claim. With respect to

the performance prong of Strickland, the Court observed that it has been “long held that a lawyer who disregards specific instructions

from the defendant to file a notice of appeal acts in a manner that

is professionally unreasonable.” Flores-Ortega, 528 U.S. at 477, 145 L. Ed. 2d at 995, 120 S. Ct. at 1035. The Court explained that

this is so because counsel’s failure to file a notice of appeal cannot

be considered a strategic decision: “filing a notice of appeal is a

purely ministerial task, and the failure to file reflects inattention to

the defendant’s wishes.” Flores-Ortega, 528 U.S. at 477, 145 L. Ed. 2d at 995, 120 S. Ct. at 1035. Moreover, a defendant who

instructs counsel to initiate an appeal reasonably relies upon

counsel to do so. Flores-Ortega, 528 U.S. at 477, 145 L. Ed. 2d at 995, 120 S. Ct. at 1035.

	The Court went on to explain, however, that it could not

determine from the record before it whether the defendant had conveyed his wishes regarding whether to appeal. Given this fact,

the Court concluded, “we believe the question whether counsel has

performed deficiently by not filing a notice of appeal is best

answered by first asking a separate, but antecedent, question:

whether counsel in fact consulted with the defendant about an

appeal.” Flores-Ortega, 528 U.S. at 478, 145 L. Ed. 2d at 995, 120 S. Ct. at 1035. Thus, in the Court’s words, the question at “the

heart of this case” was “[u]nder what circumstances does counsel

have an obligation to consult with the defendant about an appeal?”

Flores-Ortega, 528 U.S. at 478, 145 L. Ed. 2d at 996, 120 S. Ct. at 1035. After setting out these circumstances, the Court

determined that, based on the limited record before it, a conclusion

could not be reached as to whether counsel in that case had a duty

to consult. The Court therefore remanded the cause to the district

court for further consideration of this issue. Flores-Ortega, 528 U.S. at 487, 145 L. Ed. 2d at 1001-02, 120 S. Ct. at 1040.

	With respect to the prejudice prong of the Strickland test, the Court stated that whether a defendant is required to show actual

prejudice or whether prejudice is presumed “turns on the

magnitude of the deprivation of the right to effective assistance of

counsel.” Flores-Ortega, 528 U.S. at 482,145 L. Ed. 2d at 998, 120 S. Ct. at 1037. Where a defendant alleges that during a critical

stage of a judicial proceeding he was denied the assistance of

counsel altogether, “ ‘[n]o specific showing of prejudice [is]

required,’ because ‘the adversary process itself [is] presumptively

unreliable.’ ” Flores-Ortega, 528 U.S. at 483,145 L. Ed. 2d at 999, 120 S. Ct. at 1038, quoting United States v. Cronic, 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047 (1984). In

Flores-Ortega, the Court explained that defense counsel’s “alleged deficient performance arguably led not to a judicial proceeding of

disputed reliability, but rather to the forfeiture of a proceeding

itself.” Flores-Ortega, 528 U.S. at 483,145 L. Ed. 2d at 999, 120 S. Ct. at 1038. In other words, the “deficiency deprived

[defendant] of the appellate proceeding altogether.” Flores-Ortega, 528 U.S. at 483,145 L. Ed. 2d at 999, 120 S. Ct. at 1038. This, the

Court held, “demands a presumption of prejudice.” Flores-Ortega, 528 U.S. at 483,145 L. Ed. 2d at 999, 120 S. Ct. at 1038.

	The Court went on to note, however, that although prejudice

was presumed, the defendant still had to show that counsel’s

deficient performance “actually cause[d] the forfeiture of the

defendant’s appeal.” Flores-Ortega, 528 U.S. at 484,145 L. Ed. 2d at 999, 120 S. Ct. at 1038. Accordingly, the Court held that the

defendant would have to demonstrate a reasonable probability that,

“but for counsel’s deficient failure to consult with him about an

appeal, he would have timely appealed.” Flores-Ortega, 528 U.S. at 484, 145 L. Ed. 2d at 999, 120 S. Ct. at 1038. The Court

recognized that showing nonfrivolous grounds for appeal might

help establish that the defendant would have, in fact, appealed.

Critically though, the Court stated:

			“[A]lthough showing nonfrivolous grounds for appeal

may give weight to the contention that the defendant

would have appealed, a defendant’s inability to ‘specify

the points he would raise were his right to appeal

reinstated,’ Rodriquez, 395 U.S. at 330[, 23 L. Ed. 2d at 344, 89 S. Ct. at 1717], will not foreclose the possibility

that he can satisfy the prejudice requirement where there

are other substantial reasons to believe that he would have

appealed. *** We *** 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.” (Emphasis in original.) Flores-Ortega, 528 U.S. at 486, 145 L. Ed. 2d at 1001, 120 S. Ct. at 1039-40.

	Flores-Ortega thus establishes that a 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’s failure to pursue a requested appeal.

The appellate court’s conclusion to the contrary in the case at bar

is therefore in error.

	The State maintains, however, that Flores-Ortega is distinguishable from the instant case under the deficient

performance prong of Strickland. As the State points out, the deficient performance alleged in Flores-Ortega involved the failure to file a notice of appeal, a ministerial act. See Flores-Ortega, 528 U.S. at 477, 145 L. Ed. 2d at 995, 120 S. Ct. at 1035. In contrast,

the deficiency alleged in this case, i.e., the failure to file a motion to withdraw a guilty plea, is not a ministerial act because grounds

for withdrawing the plea must be alleged in the motion. See 145 Ill.

2d R. 604(d) (“The motion shall be in writing and shall state the

grounds therefor”). In the State’s view, because the filing of a

motion to withdraw a guilty plea is not considered a ministerial act,

“counsel’s failure to file such a motion, without any rational basis

to do so from the client, cannot be labeled unreasonable.” Thus,

according to the State, defendant’s petition must be dismissed as

frivolous because it does not allege any grounds for withdrawing

the guilty plea.

	The State’s argument is unpersuasive because it contradicts

the principles of Rodriquez and Flores-Ortega. Defendant in the case at bar alleges that he repeatedly asked his attorney to file an

appeal but that she had “taken it or decided for herself not to file”

one. For purposes of deciding whether defendant’s petition is

frivolous, we must take these allegations as true. People v. Coleman, 183 Ill. 2d 366, 380 (1998), quoting People v. Jennings, 411 Ill. 21, 26 (1952). There is nothing of record which indicates

that defendant’s counsel reviewed the plea proceedings for error or

consulted with defendant regarding grounds for an appeal before

deciding not to file the motion to withdraw the guilty plea. Cf. Smith v. Robbins, 528 U.S. 259, 278 n.10, 145 L. Ed. 2d 756, 775 n.10, 120 S. Ct. 746, 760 n.10 (2000) (“[I]n all cases, [an indigent

defendant has] the right to have an attorney, zealous for the

indigent’s interests, evaluate his case and attempt to discern

nonfrivolous arguments” before deciding not to pursue an appeal).

Under these circumstances, as Rodriquez and Flores-Ortega hold, it is unreasonable to place a burden on the pro se defendant to demonstrate the merits of his hypothetical appeal. It is irrelevant

whether one characterizes this burden as a requirement to allege

deficient performance or prejudice because the principle remains

the same: the pro se defendant cannot be expected “ ‘to specify the grounds for [his] appeal and show that they have some merit.’ ” Flores-Ortega, 528 U.S. at 486, 145 L. Ed. 2d at 1001, 120 S. Ct. at 1040, quoting Peguero v. United States, 526 U.S. 23, 30, 143 L. Ed. 2d 18, 25-26, 119 S. Ct. 961, 966 (1999) (O’Connor, J.,

concurring, joined by Stevens, Ginsburg and Breyer, JJ.).

	Indeed, adopting the State’s position, which would place a

burden upon the pro se defendant to recognize both legal and factual errors in the plea process in order to survive summary

dismissal on post-conviction, would inevitably result in certain

defendants being improperly denied any meaningful review of plea proceedings, despite the constitutional right to a direct appeal (Ill.

Const. 1970, art. VI, §6). For example, assume that a defendant

pleads guilty and is sentenced after being improperly admonished

or after some other legal error occurs. The defendant asks his

attorney to file a motion to withdraw the guilty plea and appeal but

counsel, for whatever reason, fails to do so. No motion to

withdraw the plea is filed, no record is made that counsel reviewed

the proceedings for error, and no appeal is taken. The defendant

subsequently files a pro se post-conviction petition alleging that he asked his counsel to file a motion to withdraw the plea and appeal,

but that his counsel ignored the request. Based upon the State’s

reasoning, the post-conviction circuit court must dismiss the

petition as frivolous and patently without merit because no grounds

for filing the Rule 604(d) motion are set forth. Thus, even though

the circuit court has no assurance that an attorney has ever

reviewed the plea proceedings for error, and even though, despite

the defendant’s request, no appellate review of any kind has

occurred, the defendant’s petition is given no further consideration.

This result is unacceptable.

	The State makes an additional argument that involves a

comparison of post-conviction proceedings and Rule 604(d). The

State maintains that placing a burden on pro se defendants at the initial stage of post-conviction to specify grounds for withdrawing

their guilty pleas puts these defendants in no more difficult a

position than a defendant who, after pleading guilty, is without

counsel and who therefore must file a pro se motion to withdraw his guilty plea under Rule 604(d). Thus, according to the State, the

burden it seeks to place on defendant in this case is a reasonable

one. We disagree.

	Rule 604(d) states that upon receipt of a pro se motion to withdraw a guilty plea

		“[t]he trial court shall then determine whether the

defendant is represented by counsel, and if the defendant

is indigent and desires counsel, the trial court shall appoint

counsel. *** The defendant’s attorney shall file with the

trial court a certificate stating that the attorney has

consulted with the defendant either by mail or in person to

ascertain his contentions of error in the sentence or the

entry of the plea of guilty, has examined the trial court file

and report of proceedings of the plea of guilty, and has

made any amendments to the motion necessary for

adequate presentation of any defects in those

proceedings.” 145 Ill. 2d R. 604(d).

	Rule 604(d) adequately addresses the concerns relating to

attorney representation that arise when a defendant files a pro se motion to withdraw his guilty plea. Once a pro se defendant notifies the circuit court that he wishes to withdraw his guilty plea

and appeal, the protections offered by Rule 604(d), i.e., the appointment of counsel and the attorney certificate, are

automatically triggered. See, e.g., People v. Griffin, 305 Ill. App. 3d 326, 330 (1999) (“After a defendant demonstrates his desire to

appeal, the trial judge is obligated to inquire whether the defendant

seeks counsel”). Significantly, as our appellate court has explained,

there is no provision in Rule 604(d) for dismissing a pro se motion to withdraw a guilty plea as frivolous. This is so because “[i]t

would be contrary to the purpose of the rule to draw a conclusion

about the legal basis of the defendant’s motion before he has had

an opportunity to consult with an attorney to insure that there is

legally ‘adequate presentation of any defects’ (107 Ill. 2d R.

604(d)) in his guilty plea proceedings. Because of the ‘strict waiver

requirements of Rule 604(d), fundamental fairness requires that a

defendant be afforded a full opportunity to explain his allegations

and that he have assistance of counsel in preparing the motion.’ ”

People v. Velasco, 197 Ill. App. 3d 589, 591-92 (1990), quoting People v. Ledbetter, 174 Ill. App. 3d 234, 237-38 (1988); see also People v. Pegues, 277 Ill. App. 3d 884, 888 (1996); People v. Barnes, 263 Ill. App. 3d 736, 738-39 (1994); People v. Adams, 74 Ill. App. 3d 727, 731 (1979); People v. Moore, 45 Ill. App. 3d 570, 572 (1976).

	Contrary to the State’s assertions, a defendant proceeding pro se under Rule 604(d) faces a significantly lesser burden than that which the State seeks to place on defendant in the case at bar. A

pro se defendant under Rule 604(d) does not have to make an “adequate presentation of any defects” (145 Ill. 2d R. 604(d)) in

his guilty plea proceedings or face summary dismissal because

there is no provision in Rule 604(d) that provides for summary

dismissal of a pro se motion to withdraw a guilty plea. Accordingly, the State’s attempt to equate the burden it would

place on defendant in this case to the one faced by pro se defendants under Rule 604(d) is unavailing.

III

	Because there is nothing of record to establish that defendant’s

trial counsel ever reviewed the plea proceedings for error before

deciding not to pursue an appeal, and because it is contrary to the

holdings of Flores-Ortega and Rodriquez under these circumstances to require defendant, who is proceeding pro se, to provide grounds for withdrawing his guilty plea and his appeal, we

hold that the circuit court erred in dismissing defendant’s petition

at the first stage of the post-conviction proceedings. Whether, in

the circumstances of this case, defense counsel’s decision not to

file a motion to withdraw the guilty plea constitutes ineffective

assistance of counsel requires the appointment of an attorney who

will be able to consult with defendant regarding his claim and

explore in more detail the factual and legal ramifications of

defendant’s claim. At this juncture, it would be inappropriate to

conclude that defendant’s claim of ineffective assistance of counsel

is so completely lacking in substance that it is frivolous or patently

without merit.

	Our holding is limited to the specific issue before us, i.e., whether the circuit court erred in dismissing defendant’s petition

at the first stage of the post-conviction proceedings. We do not

hold that defendant is entitled to an evidentiary hearing. To merit

an evidentiary hearing on his claim that he told his trial counsel to

file a motion to withdraw his guilty plea and that counsel was

constitutionally ineffective for failing to do so, defendant will have

to make a substantial showing to that effect. See Coleman, 183 Ill. 2d at 381. Such a showing will necessarily entail some explanation

of the grounds that could have been presented in the motion to

withdraw the plea. Since defendant will be at the second stage of

the post-conviction proceedings and will be represented by an

attorney, rather than proceeding pro se, this will not present an unreasonable burden.

CONCLUSION

	For the foregoing reasons, the judgments of the appellate

court and the circuit court are reversed. The cause is remanded to

the circuit court for further proceedings consistent with this

opinion.

	Appellate court judgment reversed;

	circuit court judgment reversed;

	cause remanded.

	JUSTICE FITZGERALD, specially concurring:

	I agree with the majority that the trial court erred in summarily

dismissing the defendant’s post-conviction petition. I write

separately to discuss the confusion surrounding so-called first-stage

dismissals under section 122–2.1(a)(2) of the Act. Understandably,

there is great reluctance to accept dismissal of a petition filed by an

indigent defendant without the benefit of counsel. This reluctance,

and the vague language contained in section 122–2.1, have led to

the use of the terms “gist” and “low threshold” in an effort to

define the first-stage pleading standard. I write separately to

discuss the problems inadvertently created by these terms.

	In 1983, the General Assembly amended the Act to include

section 122–2.1, which directed the trial court to conduct a

threshold evaluation of post-conviction petitions and to dismiss

those which were “frivolous” or “patently without merit.” Ill. Rev.

Stat. 1985, ch. 38, par. 122–2.1(a). The Act currently provides: “If

the petitioner is sentenced to imprisonment and the court

determines the petition is frivolous or is patently without merit, it

shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision.” 725

ILCS 5/122–2.1(a)(2) (West 1998).

	The General Assembly, however, never defined “frivolous” or

“patently without merit.” Instead, our appellate court provided the

initial gloss on these terms. In People v. Baugh, 132 Ill. App. 3d 713 (1985), the defendant, whose pro se post-conviction petition was summarily dismissed, argued that section 122–2.1 violated due

process because it denied counsel to indigent defendants. The court

noted that the United States Supreme Court approved federal

legislation requiring indigent habeas corpus petitioners to prepare petitions without the benefit of counsel. Baugh, 132 Ill. App. 3d at 717; see Rodriguez v. United States, 395 U.S. 327, 330, 23 L. Ed. 2d 340, 344, 89 S. Ct. 1715, 1717 (1969); see also Johnson v. Avery, 393 U.S. 483, 488, 21 L. Ed. 2d 718, 722, 89 S. Ct. 747, 750 (1969) (“It has not been held that there is any general

obligation of the courts, state or federal, to appoint counsel for

prisoners who indicate, without more, that they wish to seek post-

conviction relief”). The court then observed:

		“While it is obvious that counsel should be better able to

more artfully draft a petition than an indigent petitioner

unschooled in legal drafting, it is certainly not clear that an

indigent petitioner could not present the gist of his claim

so that the trial court could make an initial determination

as to whether *** the claim is frivolous. An indigent

petitioner is not deprived of post-conviction relief. We do

not find a denial of due process by the operation of section

122–2.1.” Baugh, 132 Ill. App. 3d at 717.

See also People v. Dredge, 148 Ill. App. 3d 911, 913 (1986) (“a petition for post-conviction relief need only contain a simple

statement which presents the gist of a claim for relief which is

meritorious when considered in view of the record”).

	Three years later, in People v. Porter, 122 Ill. 2d 64 (1988), this court rejected a similar due process argument, noting that an

indigent defendant is entitled to appointed counsel after the trial

court determines that the claims are not frivolous or patently

without merit. Porter, 122 Ill. 2d at 74. We held that, “Under the Post-Conviction Hearing Act, the [defendant] must set forth the

specific manner in which his rights were violated. [Citation.] The [defendant] does not have to construct legal arguments or cite to

legal authority. Once the [defendant] sets out allegations

demonstrating a meritorious constitutional claim, he is entitled to

have counsel represent him ***.” Porter, 122 Ill. 2d at 74. We then quoted Baugh with approval, recognizing that an indigent defendant may be able to present the “gist” of a constitutional

claim. Porter, 122 Ill. 2d at 74.

	In the wake of our opinion in Porter, however, our appellate court continued to grapple with the sufficiency of pleadings

required to survive the first stage of a post-conviction proceeding,

and with the meaning of “gist.” Compare People v. Sanders, 209 Ill. App. 3d 366 (1991) (holding that in the first stage of the

proceedings a petitioner must set forth facts which show the denial

of a constitutional right), with People v. Von Perbandt, 221 Ill. App. 3d 951 (1991) (holding that limited detail is required to

survive the first stage of the proceedings). In People v. Lemons, 242 Ill. App. 3d 941, 946 (1993), the appellate court attempted to

clarify the meaning of “gist”:

		“A ‘gist of a meritorious claim’ is not a bare allegation of

a deprivation of a constitutional right. Although a pro se defendant seeking post-conviction relief would not be expected to construct legal arguments, cite legal authority,

or draft her petition as artfully as would counsel, the pro se defendant must still plead sufficient facts from which the trial court could find a valid claim of deprivation of a

constitutional right.” (Emphasis in original.)

	Thereafter, other appellate panels relied upon Lemons for the standard in determining whether to dismiss a petition during the

first stage of the proceedings. See, e.g., People v. Prier, 245 Ill. App. 3d 1037, 1040 (1993) (“ ‘[a]lthough a pro se [litigant] *** would not be expected to construct legal arguments, cite legal

authority, or draft her petition as artfully as would counsel, the pro se defendant must still plead sufficient facts from which the trial court could find a valid claim’ ” (emphasis in original)), quoting

Lemons, 242 Ill. App. 3d at 946.

	In People v. Gaultney, 174 Ill. 2d 410, 418 (1996), we had a chance to clarify Porter and the first-stage pleading standard. An extended quotation from Gaultney is necessary to show what we said, and what we did not say:

			“Pursuant to the Act, a post-conviction proceeding that

does not involve the death penalty has three distinct

stages. In the first stage, the defendant files a petition and

the circuit court determines whether it is frivolous or

patently without merit. At this stage, the Act does not

permit any further pleadings from the defendant or any

motions or responsive pleadings from the State. Instead,

the circuit court considers the petition independently,

without any input from either side. To survive dismissal at

this stage, a petition need only present the gist of a

constitutional claim. People v. Porter, 122 Ill. 2d 64, 74 (1988). This is a low threshold and a defendant need only

present a limited amount of detail in the petition. At this

stage, a defendant need not make legal arguments or cite

to legal authority. Porter, 122 Ill. 2d at 74. The Act provides that the petition must be supported by ‘affidavits,

records, or other evidence supporting its allegations’ or

the petition ‘shall state why the same are not attached.’

725 ILCS 5/122–2 (West 1992). If the circuit court does

not dismiss the petition pursuant to section 122–2.1, it is

then docketed for further consideration.” Gaultney, 174 Ill. 2d at 418.

	In the first instance, I note that the facts in Gaultney presented a peculiar hybrid of the first and second stages; the trial court had

dismissed the petition as frivolous, but only after the State had filed

a motion to dismiss. At issue in Gaultney was whether the State’s motion to dismiss tainted the trial court’s first-stage review of the

petition. We did not directly address the level of pleadings required

to survive the first stage.

	More importantly, Gaultney did not redefine the first-stage pleading requirement–it did not mention any dispute regarding the

pleading threshold for first-stage dismissals; it did not correct,

modify, or clarify this threshold; and it did not set a new standard. Gaultney simply followed the course we set in Porter. I believe that Gaultney is consistent with Lemons. Although Gaultney does not directly refer to the “sufficient facts” pleading requirement stated in Lemons, it does state that a petition must be supported by some degree of factual evidence. Both opinions discuss the

necessity to present factual evidence in order to state the “gist” of

a constitutional claim. The consistent tenor of post-Gaultney appellate court cases supports this reading. See People v. Truly, 318 Ill. App. 3d 217, 222 (2000); People v. Patton, 315 Ill. App. 3d 968, 972 (2000) (citing Lemons); People v. Donley, 314 Ill. App. 3d 671, 673-74 (2000) (quoting Lemons); People v. Hill, 308 Ill. App. 3d 691, 698-99 (1999) (citing Gaultney, Porter, and Lemons); People v. Douglas, 296 Ill. App. 3d 192, 197 (1998) (quoting Lemons); People v. Davison, 292 Ill. App. 3d 981, 985 (1997) (citing Gaultney and Lemons); People v. McClain, 292 Ill. App. 3d 185, 190 (1997) (reconciling Gaultney and Lemons), overruled on other grounds, People v. Woods, 193 Ill. 2d 483 (2000); People v. Anderson, 287 Ill. App. 3d 1023, 1031 (1997) (citing Gaultney and Lemons).

	The present case illustrates the confusion that exists

surrounding the meaning of the term “gist.” In this court’s original

opinion, before we granted the defendant’s petition for rehearing,

the majority concluded that in order to allege ineffective assistance

of counsel on the basis that an attorney failed to preserve appeal

rights, a defendant must show the “grounds he or she would have

had to withdraw his or her plea of guilty had the proper motion”

been filed by counsel. The opinion provided, “[w]e refuse to create

a rule which would require defense counsel to invent grounds for

withdrawal of a defendant’s guilty plea when defendant fails to

provide counsel with an articulable basis for doing so and he offers

none in his post-conviction petition.” The allegations contained in

the petition–the defendant’s order, “File an appeal,” and the

attorney’s response, “On what grounds”–did not state the “gist” of

a constitutional claim.

	The current opinion, which I join, reaches the opposite

conclusion from the same set of facts. We now hold that the

allegation of a mere request to file an appeal, and an attorney’s

failure to perfect that appeal, is sufficient to state the “gist” of a

constitutional claim. I agree with this conclusion because the facts,

as alleged in the defendant’s petition, show the real possibility of

a valid constitutional claim in two ways. First, the exchange between the defendant and his attorney, in which the attorney

asked the defendant “On what grounds” he sought to appeal, leads

me to believe that further conversation occurred. Once the attorney

asked, “On what grounds,” it is reasonable to conclude that the

defendant provided a response. This entire exchange warranted

further inquiry by the trial court. Second, if the defendant did not

respond to counsel’s inquiry, and counsel failed to do or say more,

her lack of a response warranted further inquiry. The defendant’s

attorney was required to advise the defendant: an attorney may not

relieve herself of the obligation to represent a defendant by forcing

the defendant to provide a legal theory or basis for the claim.

	Notwithstanding my agreement with the majority’s conclusion,

I find that this case shows the inherent problems caused by the

vague language contained in section 122–2.1. Certainly, judicial

economy is not accomplished in cases such as this, where “gist” is

interpreted in two different ways. We should be vigilant to avoid

catchwords like “gist” which shortcut reliance on the relevant

statutory language, though I note that we have previously

employed the term “gist” to include the elements of a crime. See

People v. Steenbergen, 31 Ill. 2d 615, 619 (1964) (“In a prosecution for robbery, the gist of the action is that the accused

forcibly took property that was in the care, custody, or control of

another person”).

	Instead, we should rely first on the language used within the

Act. Section 122–2.1(a)(2) addresses petitions which are

“frivolous” or “patently without merit.” “Frivolous” means “of

little weight or importance: having no basis in law or fact.”

Webster’s Third New International Dictionary 913 (1993); Black’s

Law Dictionary 677 (7th ed. 1999); accord Anders v. California, 386 U.S. 738, 744, 18 L. Ed. 2d 493, 498, 87 S. Ct. 1396, 1400

(1967) (legal points “arguable on their merits” are not frivolous).

“Patently” means “clearly, obviously, plainly.” Webster’s Third

New International Dictionary 1654 (1993); Black’s Law Dictionary

1147 (7th ed. 1999). “Merit” means “legal significance, standing,

or importance.” Webster’s Third New International Dictionary

1414 (1993); Black’s Law Dictionary 1003 (7th ed. 1999).

Consequently, the trial court should dismiss petitions having no basis in law or fact or petitions which clearly, obviously, and

plainly lack legal significance.

	In my view, this standard does not require the defendant to set

forth the claim “in its entirety” (slip op. at 4), but it does require

the defendant to plead sufficient factual allegations to support a

valid claim of deprivation of a constitutional right. See Gaultney, 174 Ill. 2d at 418 (“The Act provides that the petition must be

supported by ‘affidavits, records, or other evidence supporting its

allegations’ ”), quoting 725 ILCS 5/122–2 (West 1992); Porter, 122 Ill. 2d at 74 (“Under the Post-Conviction Hearing Act, the

petitioner must set forth the specific manner in which his rights

were violated”); see also People v. Coleman, 183 Ill. 2d 366, 380 (1998) (“at the dismissal stage of a post-conviction proceeding,

whether under section 122–2.1 or under section 122–5, the circuit

court is concerned merely with determining whether the petition’s

allegations sufficiently demonstrate a constitutional infirmity which

would necessitate relief under the Act”); cf. People v. Scott, 194 Ill. 2d 268, 279 (2000) (the Act establishes an original and

independent remedy by a civil proceeding); People ex rel. Fahner v. Carriage Way West, Inc., 88 Ill. 2d 300, 308 (1981) (“Illinois is a fact-pleading State. *** The complaint is deficient when it fails

to allege the facts necessary for the plaintiff to recover”); accord Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997) (“A plaintiff must allege facts sufficient to bring his or her claim within the scope of

the cause of action asserted”); Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 408 (1996). This standard allows the trial court to exercise

its screening function to dispose of frivolous petitions which raise

claims that have no constitutional basis or present constitutional

claims clearly rejected by controlling case law.

	A consistent theme runs through the legislative debates:

section 122–2.1 was enacted to allow trial judges to evaluate and

dismiss frivolous petitions without incurring the expense of

copying transcripts and appointing counsel. That is, the purpose of

section 122–2.1 was not to prevent the filing of post-conviction

petitions, but, according to Senator Sangmeister:

		“[A]t least let a judge look at it ***. *** [T]hat’s what we

have judges for, let them look at the petition and if it has

merit, fine ***. But at least let the judge look at it and those [petitions] that are obviously frivolous, let them

throw them out.

* * *

			*** The question that has to be addressed *** is

whether or not the petition has any merit. Once the judge

looks at it and says, I don’t think this has any merit and

tosses it out, that’s the end of it.” 83d Ill. Gen. Assem.,

Senate Proceedings, May 19, 1983, at 171-72 (statements

of Senator Sangmeister).

Accord 83d Ill. Gen. Assem., Senate Proceedings, June 28, 1983,

at 218 (statements of Senator Sangmeister).

	The Illinois House debates are substantially similar.

Representative Johnson, sponsor of the bill which eventually

became section 122–2.1(a), stated:

		“This simply says that on those post-conviction matters

after the trial, after the appeal, after everything else, that

*** the petition alleging new matter has to be matter that

is substantive and not frivolous or obviously without

merit. ***

* * *

			*** All this says, under current law, you have to

appoint a new lawyer, you have to order a transcript of the

proceedings over and over and over again without limit

and without any regard to the merits of the petition ... with

regard to the merits of the post-conviction petition. All

this says is that when those post-conviction petitions are

filed after the trial and after the appeal, that the court has

to make a threshold determination that they are not

frivolous or obviously without merit.” 83d Ill. Gen.

Assem., House Proceedings, June 21, 1983, at 92, 95-96

(statements of Representative Johnson).

Accord 83d Ill. Gen. Assem., House Proceedings, November, 1,

1983, at 9-10 (statements of Representative Johnson) (“All this

does is to provide that the court can dismiss the petition where it

determines that the petition is frivolous or patently without merit.

*** It still allows petitions with merit to be granted, attorneys to

be appointed and the appropriate expenses incurred, but it says if your petition is without merit and frivolous, then the state ought

not to log the expense for that”); see 83d Ill. Gen. Assem., House

Proceedings, November 1, 1983, at 7 (statements of

Representative Cullerton) (“What we’re saying here is that

frivolous post-conviction petitions can *** be dismissed easier than

they can be now”).

	Representative Hawkinson stated:

		“This is an excellent piece of legislation. It will not create

a new bureaucracy in any sense. What happens too often

under the present law is a frivolous post-conviction

petition will be filed, and when I say frivolous, and what

this Bill addresses is a petition will be filed by some

jailhouse lawyer that will state one ground. It will state,

for example, that I deserve to have my conviction thrown

out because I was improperly represented by the public

defender. Anyone that looks at the record in the case can

easily see that the person was not even represented by a

public defender, but was represented by a private attorney.

This is the type of thing that the Bill addresses, where a

quick look at the record in the case will show that the

petition is absolutely untrue. There [is] no need to go to

the expense of appointing a court appointed lawyer, of

bringing the individual back from the penitentiary. It only

addresses that type of petition.” 83d Ill. Gen. Assem.,

House Proceedings, June 21, 1983, at 89 (statements of

Representative Hawkinson).

	Representative McCracken added:

		“It’s important to note that this is patterned after a federal

law and is consistent with that practice, 28 U.S.C., 1915.

Now, that practice has resulted in curing a backlog

problem, which was endemic to the federal post-

conviction process. It’s important to note *** that this

does not decide the merits of the controversy. All it does

is require a threshold finding by the court that there is not

a frivolous claim on its face. All it determines is that the

claim is or is not frivolous on its face, therefore, it is

analogous to a dismissal of pleadings. *** And the

question will be, ‘Are the pleadings on their face frivolous? Do they state a claim on their face?’ This is

crucially important to a ... to avoid the appointment of

private counsel or the public defender to a claim which can

be fairly and expeditiously and without undue violation of

defendant rights decided by the court in the first instance.

You must remember the federal precedent is the leading

precedent on the question of post-conviction. We merely

bring our law into line with them.” 83d Ill. Gen. Assem.,

House Proceedings, June 21, 1983, at 93-94 (statements

of Representative McCracken).

See 28 U.S.C. §1915(d) (1994) (“Proceedings in forma pauperis”)

(“The court may request an attorney to represent any such person

unable to employ counsel and may dismiss the case if the allegation

of poverty is untrue, or if satisfied that the action is frivolous or

malicious”); Neitzke v. Williams, 490 U.S. 319, 327, 104 L. Ed. 2d 338, 348, 109 S. Ct. 1827, 1833 (1989) (“[Section 1915(d)]

accords judges not only the authority to dismiss a claim based upon

an indisputably meritless legal theory, but also the unusual power

to pierce the veil of the complaint’s factual allegations and dismiss

those claims whose factual contentions are clearly baseless”); see

also Denton v. Hernandez, 504 U.S. 25, 32-33, 118 L. Ed. 2d 340, 349-50, 112 S. Ct. 1728, 1733-34 (1992) (factual frivolousness).

These comments demonstrate that the General Assembly intended

section 122–2.1 to serve as a modest barrier to meritless petitions.

Lowering the defendant’s pleading burden too far contradicts the

legislature’s intent.

	Today’s opinion raises an additional concern. In order to

provide clarity to the Act, this court has divided the Act into a

progression of “stages.” Gaultney, 174 Ill. 2d at 418. In order to prevail in the second stage of the proceedings, a defendant must

make a “substantial showing of a violation of constitutional rights.”

725 ILCS 5/122–4 (West 1998). The underlying purpose of the

entire Act, however, is to provide relief from a “substantial denial”

of rights under the United States or Illinois Constitutions. 725

ILCS 5/122–1 (West 1998).

	In the current opinion, the majority states:

		“At the outset of its opinion, the appellate court correctly

indicated that the issue presented in this case is whether defendant’s petition is frivolous or patently without merit.

[Citation.] At the conclusion of its opinion, however, the

appellate court stated: ‘We affirm the trial court’s

dismissal of defendant’s postconviction petition. Under the

Post-Conviction Hearing Act, defendant has the burden of

showing a substantial violation of his constitutional rights occurred in the proceedings that resulted in his conviction.

Defendant’s petition failed to state a claim for ineffective

assistance of counsel ***. [Citation.]’

			These latter statements are inappropriate, given the

procedural posture of this case. The relevant question in

the case at bar is not whether defendant’s petition makes

a substantial showing of a constitutional violation; that is a second stage inquiry.” (Emphases added.) Slip op. at 4-56.

	The majority criticizes the appellate court’s incidental use of

the word “substantial,” but misapprehends the appellate court’s

opinion. The appellate court, in referring to a “substantial

violation” simply sought to focus attention on the central purpose

of the Act–to provide a procedural mechanism through which a

defendant can assert “that in the proceedings which resulted in his

or her conviction there was a substantial denial of his or her rights

under the Constitution of the United States or of the State of

Illinois or both.” 725 ILCS 5/122–1 (West 1998); see Coleman, 183 Ill. 2d at 378-79. The appellate court did not, as the majority

charges, wrongfully impose a higher “substantial showing” burden.

At the outset, the appellate court recognized that the defendant

need only “assert the gist of a constitutional claim.” 305 Ill. App.

3d at 855. The appellate court’s statement was not inappropriate,

but rather “general terminology that is common in post-conviction

proceedings.” Gaultney, 174 Ill. 2d at 422.

	The conclusions reached in our own cases show that

reasonable persons have difficulty determining whether the

defendant’s allegations have met the murky frivolousness standard.

These cases depend more on fact variances and less on cognizable

legal standards, and the legal standards we have formulated

inadvertently aggravate this confusion. In light of the continuing

struggle of Illinois courts to bring clarity and certainty to the Act’s

pleading requirements for first-stage petitions, I believe that the trial bench and bar should approach first-stage proceedings with

caution.

	Where doubt exists regarding dismissal at the first stage, the

trial court should not hesitate to allow the claim to proceed to the

second stage, where counsel may amend the petition and craft a

more proper pleading for the court’s review. If the petition is

dismissed at the second stage of the proceedings, a reviewing court

is presented with more adequately pleaded facts. Conversely, if the

defendant is granted an evidentiary hearing, the defendant will

obtain that which by law is his right. At present, this solution

serves both the ends of justice and judicial economy.

	JUSTICE GARMAN, dissenting:

	I believe the trial court correctly dismissed defendant’s pro se post-conviction petition as frivolous and patently without merit

because the petition failed to allege grounds for the withdrawal of

defendant’s guilty plea.

	The Post-Conviction Hearing Act (Act) (725 ILCS 5/122–1 et seq. (West 1998)) limits a defendant to constitutional challenges of the proceedings that resulted in his conviction. A post-

conviction proceeding is a collateral attack on a prior conviction

and sentence and “is not a substitute for, or an addendum to, direct

appeal.” People v. Kokoraleis, 159 Ill. 2d 325, 328 (1994). In such a proceeding, the defendant bears the burden of establishing a

substantial deprivation of his constitutional rights. People v. Guest, 166 Ill. 2d 381, 389 (1995). As noted by the majority, under the

Act, a post-conviction proceeding not involving the death penalty

is divided into three stages. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). At the first stage, the trial court examines the

defendant’s post-conviction petition and shall dismiss the petition

if it is frivolous or patently without merit. 725 ILCS 5/122–2.1(a)

(West 1998). At this stage, the petition need only present the “gist”

of a constitutional claim. Gaultney, 174 Ill. 2d at 418. If the petition survives first-stage dismissal, it will advance to the second

stage, where the court must determine whether the defendant has

made a substantial showing of a violation of his constitutional

rights. At this stage, the trial court shall appoint counsel, if necessary, to represent an indigent defendant. 725 ILCS 5/122–4

(West 1998). If the post-conviction petition advances to the third

stage, the trial court will conduct an evidentiary hearing. 725 ILCS

5/122–6 (West 1998); Gaultney, 174 Ill. 2d at 418.

	In his pro se post-conviction petition, defendant alleged that his trial counsel “had taken it or decided for herself not to file an

appeal, in spite of [his] numerous requests to [do so].” The trial

court determined that this allegation was one of ineffective

assistance of counsel. On appeal to this court, defendant contends

that he was denied the effective assistance of counsel because

counsel failed to perfect his right to appeal by filing a motion to

withdraw his guilty plea. To establish ineffective assistance of

counsel, a defendant must show that (1) his counsel’s

representation fell below an objective standard of reasonableness

and (2) counsel’s deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 697-98, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984).

	The determinative fact in this case is defendant’s choice to

plead guilty. Entering a guilty plea is a “ ‘grave and solemn act.’ ”

People v. Evans, 174 Ill. 2d 320, 326 (1996), quoting Brady v. United States, 397 U.S. 742, 748, 25 L. Ed. 2d 747, 756, 90 S. Ct. 1463, 1468 (1970). It is not a “ ‘temporary and meaningless

formality reversible at the defendant’s whim.’ ” Evans, 174 Ill. 2d at 326, quoting United States v. Barker, 514 F.2d 208, 221 (D.C. Cir. 1975). In Illinois, a defendant who pleads guilty is not entitled

to a direct appeal from his conviction and sentence. To challenge

his guilty plea, the defendant must first file with the trial court a

motion to withdraw his plea and vacate the judgment against him.

This motion “shall be in writing and shall state the grounds

therefor.” 188 Ill. 2d R. 604(d). If the defendant’s motion to

withdraw his plea is allowed, the plea of guilty, sentence, and

judgment will be vacated and a trial date will be set. 188 Ill. 2d Rs.

605(b)(3), 604(d). In this instance, there is no appeal. If, on the

other hand, the motion is denied, only that decision can be

considered on review. Evans, 174 Ill. 2d at 329. Further, a voluntary guilty plea waives all nonjurisdictional errors or

irregularities. People v. Peeples, 155 Ill. 2d 422, 491 (1993); People v. Horton, 143 Ill. 2d 11, 22 (1991); People v. Del Vecchio, 105 Ill. 2d 414, 433 (1985); see also 5 W. LaFave, J. Israel & N. King, Criminal Procedure §21.6 (2d ed. 1999).

	Unlike the defendant who is convicted pursuant to a guilty

plea, the defendant who chooses to go to trial and is convicted has

an automatic right to an appeal.1 The defendant who chooses to be tried maintains his innocence. As the appellate court noted, “[f]or

a defendant convicted after trial, who has always professed

innocence, the right to appeal insures due process and provides an

important safety net to those who may have been wrongly

convicted.” 305 Ill. App. 3d 853, 858. The defendant who appeals

from a conviction following a trial may raise any issue on appeal as

long as that issue has been properly preserved. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (both a trial objection and a written post-trial motion raising the issue are required to preserve

alleged errors).

	Thus, when a defendant, convicted after trial, asks his attorney

to file a notice of appeal and the attorney fails to do so, that

defendant’s right to appeal has been violated. This is what occurred

in Rodriquez v. United States, 395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715 (1969). There, the Supreme Court rejected the notion

that the defendant’s post-conviction petition, in which he alleged

“that his retained counsel had fraudulently deprived him of his right

to appeal,” needed to specify the points he would raise on appeal. Rodriquez, 395 U.S. at 329, 23 L. Ed. 2d at 343, 89 S. Ct. at 1716. The Court noted that“[t]hose whose right to appeal has been

frustrated should be treated exactly like any other appellants; they

should not be given an additional hurdle to clear just because their

rights were violated at some earlier stage in the proceedings.”

Rodriquez, 395 U.S. at 330, 23 L. Ed. 2d at 344, 89 S. Ct. at 1717.

	Similarly, in Roe v. Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000), the defendant was denied his right

to appeal by counsel’s failure to file a notice of appeal. The

defendant entered a plea of guilty pursuant to a California rule that

permitted him both to deny committing a crime and to admit the

evidence was sufficient to convict him. The trial judge advised the

defendant of his right to file an appeal within 60 days. Counsel

failed to file a notice of appeal within the requisite period and the

defendant’s subsequent pro se notice was rejected as untimely. Then, the defendant filed a petition for federal habeas corpus relief pursuant to section 2254 of the United States Code (28 U.S.C.

§2254 (1994)), alleging constitutionally ineffective assistance of

counsel based on his counsel’s failure to file a notice of appeal after

she promised to do so. Flores-Ortega, 528 U.S. at 474, 145 L. Ed. 2d at 993, 120 S. Ct. at 1033. The majority concludes that in

Flores-Ortega, “the Supreme Court rejected the proposition that Rodriquez is limited to those cases where a defendant’s conviction is obtained following a trial.” Slip op. at 89. I disagree with this

conclusion.

	The Flores-Ortega decision was premised on the performance prong of the test for ineffective assistance of counsel. The question

presented in the case was whether counsel is deficient for failing to

file a notice of appeal when the defendant has not clearly conveyed

his wishes one way or the other. Flores-Ortega, 528 U.S. at 477, 145 L. Ed. 2d at 995, 120 S. Ct. at 1035. The majority correctly

notes that “the question at ‘the heart of the case’ was ‘[u]nder

what circumstances does counsel have an obligation to consult

with the defendant about an appeal?’ ” Slip op. at 910, quoting

Flores-Ortega, 528 U.S. at 478, L. Ed. 2d at 996, 120 S. Ct. at 1035. The Court, however, also discussed the prejudice prong of Strickland. The Court held that assuming the defendant’s counsel was deficient under the first prong, that deficiency completely

deprived the defendant of appellate proceedings he wanted and “to

which he had a right.” Flores-Ortega, 528 U.S. at 483, 145 L. Ed. 2d at 999, 120 S. Ct. at 1038. This denial required a presumption

of prejudice under the second prong. Flores-Ortega, 528 U.S. at 483, 145 L. Ed. 2d at 999, 120 S. Ct. at 1038. The Court noted

that the prejudice standard “breaks no new ground, for it mirrors the prejudice inquiry applied in *** Rodriquez v. United States.” Flores-Ortega, 528 U.S. at 485, 145 L. Ed. 2d at 1000, 120 S. Ct. at 1039. This prejudice standard is inapplicable to the case at bar

because a defendant who pleads guilty in Illinois is not entitled to

an appeal.

 	The defendant in Flores-Ortega entered a plea of guilty pursuant to California law. In California, a defendant convicted

following a plea of guilty “shall, within 60 days after the judgment

is rendered, file as an intended notice of appeal the statement

required by section 1237.5 of the Penal Code; but the appeal shall

not be operative unless the trial court executes and files the

certificate of probable cause required by that section.” Cal. Rules

of Court, R. 31(d) (2001). Section 1237.5 of the California Penal

Code provides:

			“No appeal shall be taken by the defendant from a

judgment of conviction upon a plea of guilty *** except

where both of the following are met:

				(a) The defendant has filed with the trial court a

written statement, executed under oath or penalty of

perjury showing reasonable constitutional, jurisdictional

or other grounds going to the legality of the

proceedings.

				(b) The trial court has executed and filed a certificate

of probable cause for such appeal with the county

clerk.” Cal. Penal Code §1237.5 (West 2000).

	California law, unlike the law of this state, does not require a

defendant to file a motion to withdraw his guilty plea. Although a

defendant in California must comply with section 1237.5’s written

statement and certificate of probable cause requirements, the defendant maintains his right to appeal. Further, he maintains the right to assert on appeal any “reasonable constitutional,

jurisdictional or other grounds going to the legality of the

proceedings.” Cal. Penal Code §1237.5(a) (West 2000).

	In contrast, the Illinois defendant is not entitled to directly

appeal his conviction and sentence following a plea of guilty. As

previously noted, Rule 604(d) requires him to first file a motion

with the trial court to withdraw his plea. If the defendant is allowed to withdraw his plea, the plea, sentence, and judgment will be

vacated and the defendant will proceed to trial. If the motion is denied, the defendant may then appeal only the denial of that

motion. Therefore, in Illinois, even when a defendant who has been

convicted pursuant to a guilty plea requests his attorney to file a

motion to withdraw his guilty plea, the attorney’s failure to do so

is not a per se violation of the defendant’s right to appeal.

	This court’s decision in People v. Wilk, 124 Ill. 2d 93 (1988), is instructive on the issue presented in this case. In Wilk, the defendants pled guilty to various charges and defense counsel filed

notices of appeal. Defense counsel, however, failed to file motions

to withdraw defendants’ guilty pleas pursuant to Rule 604(d). We

held that Rule 604(d) serves as a condition precedent for an appeal

from a defendant’s guilty plea. Wilk, 124 Ill. 2d at 105. The defendants, however, were not without a remedy. The remedy

could be found in the Act:

		“[I]n a post-conviction petition, the defendant pro se needs only to allege a violation of his sixth amendment

right to effective assistance of counsel, due to the

attorney’s failure to preserve appeal rights, and allege whatever grounds he or she would have had to withdraw

his or her plea of guilty had a proper motion to withdraw

been filed by defendant’s counsel prior to the filing of a

notice of appeal. At the hearing on the post-conviction petition, the two-pronged test laid down in Strickland v. Washington will apply to determine if in fact the defendant has been deprived of effective assistance of counsel.”

(Emphasis added.) Wilk, 124 Ill. 2d at 107-08.

	A defendant who pleads guilty in this state voluntarily places

himself in a different position from a defendant who is convicted

after trial. The defendant who pleads guilty has given up his right

to appeal unless he has grounds to withdraw his plea. When a

judgment is entered upon a plea of guilty, the defendant is put on

notice that, to challenge the judgment, he must provide grounds for

the withdrawal of his plea. 188 Ill. 2d R. 605(b). If the defendant’s

motion to withdraw his plea is granted and the defendant is

subsequently convicted after trial, he may then appeal that conviction. Consequently, the defendant who pleads guilty must state grounds for the withdrawal of his plea at the first stage of

post-conviction if he alleges that he was denied the effective

assistance of counsel by counsel’s failure to perfect an appeal. He

must state more than just that his attorney did not file an appeal.

Here, defendant has not alleged enough.

	The majority’s conclusion essentially eliminates the first stage

of post-conviction when a defendant alleges he was denied an

appeal due to ineffective assistance of counsel; whether the

defendant pleaded guilty or was convicted after trial. The petition,

according to the majority, need only allege that the defendant

requested counsel to file an appeal and that counsel failed to do so.

These petitions will automatically proceed to the second stage of

post-conviction where the trial court will appoint counsel.

	The majority’s holding places defendants convicted after

pleading guilty and defendants convicted after trial on equal footing

in post-conviction proceedings where it is alleged that counsel

deprived a defendant of appellate proceedings. I cannot agree with

this result. Defendant failed to state a claim for ineffective

assistance of counsel because he failed to allege grounds for the

withdrawal of his guilty plea. Therefore, I respectfully dissent.

	JUSTICE THOMAS joins in this dissent.