No. 3--06--0740

_________________________________________________________________

Filed August 28, 2008

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2008

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of the 14th Judicial Circuit, 

) Rock Island County, Illinois,

Plaintiff-Appellee, )

)

v. ) No. 05--CF--737

)

RAPHAEL L. OWENS, ) Honorable

 ) Charles H. Stengel,

Defendant-Appellant. ) Judge, Presiding.

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PRESIDING JUSTICE McDADE delivered the opinion of the court:

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A jury found the defendant, Raphael L. Owens, guilty of

residential burglary (720 ILCS 5/19--3(a) (West 2004)). The

trial court imposed an extended term sentence of 18 years'

imprisonment. On appeal, the defendant argues that, under Roe v.

Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029

(2000), this court must remand the cause for the appointment of

counsel to consult with the defendant concerning appealing his

sentence. We remand with directions.

BACKGROUND

At the sentencing hearing, the court imposed an 18-year

extended term sentence because the defendant had committed a
2

Class 1 felony within 10 years of this offense, which also was a

Class 1 felony. Immediately after the court imposed sentence,

the following exchange took place between the defendant and the

court:

"THE DEFENDANT: 18 years for a residential

burglary, huh?

THE COURT: Absolutely. 18 years on a residential

burglary for a person who was on Class--

THE DEFENDANT: Appeal that."

The court then advised the defendant concerning his right to

appeal. Among other things, the court told the defendant that if

he did not raise a challenge to his sentence in a written motion

to reconsider the sentence within 30 days, his arguments

regarding the sentence would be deemed waived on appeal.

After the court advised the defendant of his appeal rights,

the defendant's retained counsel said, "I'd ask to be relieved,

Judge. I've done my job in this case." The court replied, "Yes. 

You'll be relieved. Is he asking the clerk to file a notice of

appeal?" Defense counsel responded, "Yes." The court then: (1)

ordered the clerk of the court to file a notice of appeal for the

defendant; and (2) stated that the appellate defender was

appointed. We note that the record does not contain a written

order allowing the defendant's retained counsel to withdraw. The
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record also shows that the defendant did not file a motion to

reconsider the sentence.

ANALYSIS

The defendant contends that, under Flores-Ortega, 528 U.S.

470, 145 L. Ed. 2d 985, 120 S. Ct. 1029, we must remand the cause

for the appointment of counsel to consult with the defendant

regarding appealing his sentence. Specifically, the defendant

submits that his trial counsel provided ineffective assistance by

withdrawing from the case before consulting with the defendant

about preserving his sentencing arguments for appeal by first

filing a motion to reconsider sentence.

A defendant's claim of ineffective assistance of counsel is

analyzed under the two-prong test set forth in Strickland v.

Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052

(1984), as adopted by the Illinois Supreme Court in People v.

Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984). Under this

test, the defendant must prove both that: (1) counsel's

representation fell below an objective standard of

reasonableness; and (2) the defendant's case was prejudiced

because of counsel's substandard representation. Albanese, 104

Ill. 2d 504, 473 N.E.2d 1246.

A motion to reconsider sentence is a critical stage of a

criminal proceeding, for which a defendant is entitled to

counsel. People v. Bailey, 364 Ill. App. 3d 404, 846 N.E.2d 147
4

(2006); People v. Williams, 358 Ill. App. 3d 1098, 833 N.E.2d 10

(2005); People v. Brasseaux, 254 Ill. App. 3d 283, 660 N.E.2d

1321 (1996). In the vast majority of cases defense counsel has a

duty to consult with the defendant during all critical stages of

the proceedings. Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985,

120 S. Ct. 1029. The remedy for defense counsel's failure to

consult with the defendant during a critical stage of the

proceedings is a remand for such consultation. See FloresOrtega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029.

In this case, the defendant clearly expressed his desire to

appeal his sentence in open court. The trial court then advised

the defendant that his failure to file a motion to reconsider the

sentence would result in waiver of his sentencing arguments on

appeal. Nonetheless, defense counsel asked to be allowed to

withdraw without consulting with the defendant about filing a

motion to reconsider the sentence in order to avoid waiver of his

sentencing arguments on appeal. The trial court indicated that

defense counsel would be allowed to withdraw at some point by

stating, in the future tense, "[y]ou'll be relieved." Showing

that defense counsel had not yet been allowed to withdraw, the

court asked defense counsel if the defendant wished to file a

notice of appeal. Defense counsel answered in the affirmative. 

It is reasonable to infer from these pronouncements by the court
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and by defense counsel that counsel's withdrawal took effect

after the sentencing hearing concluded.

First, we note that defense counsel failed to consult with

the defendant during the critical stage of the proceedings

concerning his motion to reconsider the sentence. See Bailey,

364 Ill. App. 3d 404, 846 N.E.2d 147; Williams, 358 Ill. App. 3d

1098, 833 N.E.2d 10; Brasseaux, 254 Ill. App. 3d 283, 660 N.E.2d

1321. In the circumstances of this case, the attorney's failure

to consult with the defendant during a critical stage of the

proceedings constituted representation that was below an

objective standard of reasonableness. See Flores-Ortega, 528

U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029. 

Next, defendant’s ability to preserve his sentencing

arguments for appeal was prejudiced under these circumstances. 

The court, having heard the defendant's desire to appeal his

sentence, and having just advised the defendant about the

consequences of failing to file a motion to reconsider sentence,

nonetheless did not ask defense counsel if the defendant wished

to file a motion to reconsider sentence, but instead asked if he

wished to file a notice of appeal. Defense counsel prejudiced

the defendant's case by: (1) failing to answer the court's

question in the negative; (2) failing to ask the court to be

allowed to consult with the defendant about his desire to appeal

the sentence; and (3) compounding his error by prematurely asking
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to withdraw from the case without first engaging in such

consultation.

In summary, the defendant has shown that his defense

counsel's representation violated both prongs of the Strickland

test by: (1) providing representation that fell below an

objective standard of reasonableness by failing to consult with

the defendant about the critical stage concerning his motion to

reconsider sentence; and (2) prejudicing the defendant's case

because the defendant's sentencing arguments on appeal would be

waived without first filing such a motion. Therefore, we hold

that defense counsel provided ineffective assistance.

We note that the defendant could have filed a pro se motion

to reconsider the sentence within 30 days of imposition of

sentence, even after the notice of appeal was filed by the clerk

of court, which would have acted as an implicit motion to dismiss

the notice of appeal. See People v. Golden, 369 Ill. App. 3d

639, 860 N.E.2d 1119 (2006). However, the defendant was deprived

of defense counsel's consultation during that critical stage when

he could have filed such a motion to reconsider, which also was

prejudicial to his case. See Flores-Ortega, 528 U.S. 470, 145 L.

Ed. 2d 985, 120 S. Ct. 1029.

The State contends that defense counsel was under no

obligation to consult with the defendant about filing a motion to

reconsider the sentence because the trial court allowed counsel
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to withdraw at the conclusion of the sentencing hearing. 

However, we reject the State's argument because, as we pointed

out above, counsel's very act of prematurely withdrawing from the

case was prejudicial to the defendant.

Therefore, we rule that, under Flores-Ortega, 528 U.S. 470,

145 L. Ed. 2d 985, 120 S. Ct. 1029, the defendant is entitled to

a remand for: (1) either the appointment of counsel, if the

defendant is indigent, or for the defendant to retain private

counsel, if the defendant is not indigent; and (2) consultation

with such attorney concerning his expressed desire to appeal his

sentence. If the defendant wishes to file a motion to reconsider

the sentence after consultation with his counsel, the trial court

shall allow him to do so.

CONCLUSION

For the foregoing reasons, we remand the cause to the Rock

Island circuit court for further proceedings consistent with this

opinion.

Remanded with directions.

LYTTON and CARTER, J.J., concur.