NO. 4-06-0014 Filed 1/31/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
EMERSON L. BROOKS, ) No. 02CF1288
Defendant-Appellant. )
) Honorable
) John R. Kennedy,
) Judge Presiding.
_________________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
Defendant, Emerson L. Brooks, appeals the Champaign
County circuit court's November 2005 "denial" of his
postconviction petition at the first stage, contending his claim
that the trial judge erred by denying his request for a continu-
ance to hire private counsel was (1) not waived and (2) a consti-
tutional issue. We reverse and remand for further proceedings.
I. BACKGROUND
In July 2003, the State charged defendant with posses-
sion of a controlled substance (720 ILCS 570/402(c) (West 2002))
and possession of a controlled substance with the intent to
deliver (720 ILCS 570/401(c)(2) (West Supp. 2001)) relating to
his actions on June 17, 2002. At the beginning of defendant's
September 2004 trial, his appointed counsel told the trial court
defendant did not want her to represent him and desired more time
to hire private counsel. The following dialogue took place:
"THE COURT: Do you have a lawyer now,
[defendant]?
THE DEFENDANT: I talked to Mr.
Silverman, and my family was supposed to go
over today and give him the money.
THE COURT: Well, unless you have an
attorney here ready to go right now, your
motion is denied."
The court then proceeded with a jury trial on the charges. The
jury found defendant guilty of possession of a controlled sub-
stance with the intent to deliver.
In September 2004, defendant's appointed counsel filed
a motion for a new trial, asserting the State had failed to prove
"intent to deliver" beyond a reasonable doubt. In October 2004,
G. Ronald Kesinger, a private attorney, filed a motion for
substitution of counsel and a continuance. Kesinger also filed a
motion for substitution of Judge Thomas Difanis. That same
month, Judge Difanis granted the motion to substitute counsel and
continued the matter. Thereafter, Kesinger filed a motion for a
new trial, contending the trial court erred in denying defen-
dant's continuation motion so he could hire an attorney of his
choice. In December 2004, Judge Jeffrey Ford denied the
substitution-of-judge motion. Judge Difanis then held a joint
hearing on the posttrial motions and sentencing, at which it
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reduced defendant's conviction to possession of a controlled
substance and sentenced him to four years' imprisonment to run
consecutive to his sentence in another case (People v. Brooks,
No. 02-CF-48 (Cir. Ct. Champaign Co.)).
On August 26, 2005, defendant filed a pro se petition
under the Post-Conviction Hearing Act (Postconviction Act) (725
ILCS 5/122-1 through 122-8 (West 2004)), contending he was denied
(1) a fair trial because Judge Difanis was prejudiced against him
and should have recused himself and (2) his right to counsel of
choice by the trial court's denial of his request for time to
hire private counsel. On November 16, 2005, the trial court
"denied" the petition, finding both issues were waived since
defendant did not pursue a direct appeal. The court also found
defendant failed to show the denial of his request for a continu-
ance to hire private counsel was "one of constitutional magni-
tude." This appeal followed.
II. ANALYSIS
While the trial court "denied" defendant's petition,
defendant actually appeals the first-stage dismissal of his
petition pursuant to section 122-2.1(a)(2) of the Postconviction
Act (725 ILCS 5/122-2.1(a)(2) (West 2004)).
The Postconviction Act (725 ILCS 5/122-1 through 122-8
(West 2004)) provides a defendant with a collateral means to
challenge his or her conviction or sentence for violations of
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federal or state constitutional rights. People v. Jones, 211
Ill. 2d 140, 143, 809 N.E.2d 1233, 1236 (2004). Once the defen-
dant files a petition under the Postconviction Act, the trial
court must first, independently and without considering any
argument by the State, decide whether the defendant's petition is
"frivolous or is patently without merit." 725 ILCS
5/122-2.1(a)(2) (West 2004). To survive dismissal at this
initial stage, the postconviction petition "need only present the
gist of a constitutional claim," which is "a low threshold" that
requires the petition to contain only a limited amount of detail.
People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102, 106
(1996). This court reviews de novo the trial court's dismissal
of a postconviction petition without an evidentiary hearing.
People v. Simms, 192 Ill. 2d 348, 360, 736 N.E.2d 1092, 1105-06
(2000).
A. Waiver; i.e., Forfeiture
Defendant first contends the trial court erred by
finding his right-to-counsel claim was waived because he did not
take a direct appeal. The State disagrees, contending failure to
file a direct appeal is not an exception to the waiver doctrine.
In its most recent case addressing waiver (more specif-
ically referred to as forfeiture and procedural default (People
v. Corrie, 294 Ill. App. 3d 496, 506, 690 N.E.2d 128, 135
(1998))) in postconviction proceedings, our supreme court stated
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the following:
"The scope of the postconviction proceeding
is limited to constitutional matters that
have not been, and could not have been, pre-
viously adjudicated. Accordingly, any issues
which could have been raised on direct ap-
peal, but were not, are procedurally
defaulted and any issues which have previ-
ously been decided by a reviewing court are
barred by the doctrine of res judicata."
People v. Whitfield, 217 Ill. 2d 177, 183,
840 N.E.2d 658, 663 (2005).
In that case, the defendant filed neither a
postjudgment motion to withdraw his guilty plea nor a direct
appeal. However, he later filed a motion that was treated as a
postconviction petition, in which he contended a due-process
violation based on his lack of knowledge of a three-year
mandatory-supervised-release (MSR) term when he pleaded guilty.
Whitfield, 217 Ill. 2d at 180-81, 840 N.E.2d at 661-62. "Noting
the well-established rule that 'issues that could have been
raised on direct appeal, but were not, are not amenable to
post[]conviction review' (see People v. Collins, 153 Ill. 2d 130,
135[, 606 N.E.2d 1137, 1140] (1992))," the State contended
defendant had waived his claim for postconviction review because
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he had been aware of the lack of an admonishment on MSR since the
guilty-plea proceeding but did not file a postjudgment motion or
a direct appeal. Whitfield, 217 Ill. 2d at 187, 840 N.E.2d at
665.
The supreme court rejected the State's argument,
finding it would be incongruous to hold the defendant forfeited
his postconviction claim because he did not object to the trial
court's failure to admonish him. The Whitfield court also noted
the defendant did not learn of the MSR term until prison and thus
he could not have raised the claim in a postjudgment motion or a
direct appeal. Whitfield, 217 Ill. 2d at 188, 840 N.E.2d at 666.
Thus, the court did consider the forfeiture rule but found it
inapplicable because the claim could not have been raised ear-
lier. Additionally, despite its citing of Collins, the Whitfield
court did not intimate the forfeiture rule is inapplicable when a
defendant does not take a direct appeal. The Collins court had
stated the forfeiture rule as follows: "When a defendant has
previously taken a direct appeal, all matters which were raised
or which could have been raised on that direct appeal are res
judicata in his subsequent post[]conviction proceeding." (Empha-
sis added.) Collins, 153 Ill. 2d at 135, 606 N.E.2d at 1140; see
also People v. Orange, 168 Ill. 2d 138, 167, 659 N.E.2d 935, 948
(1995).
However, as defendant notes, in People v. Rose, 43 Ill.
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2d 273, 279, 253 N.E.2d 456, 461 (1969), the supreme court held
that, while a defendant's failure to take a direct appeal waived
claims based on mere error in the trial, the defendant was "still
entitled to assert those constitutional rights which the
Post[c]onviction Act is designed to protect and preserve." In
reaching that conclusion, the Rose court noted the Postconviction
Act provides a separate remedy, whose availability is not contin-
gent upon exhaustion of any other remedy. Rose, 43 Ill. 2d at
279, 253 N.E.2d at 460. It further explained the essence of
waiver as follows: "'We have consistently held that where review
has once been had by a writ of error, *** any claim which might
there have been raised, but was not, is considered waived.'"
(Emphasis in original.) Rose, 43 Ill. 2d at 279, 253 N.E.2d at
461, quoting People v. Ashley, 34 Ill. 2d 402, 408, 216 N.E.2d
126, 129 (1966).
Following Rose, this court has concluded that, when a
defendant never appeals, the rule that a defendant cannot raise
any issue in a postconviction petition that he or she could have
made on direct appeal is inapplicable. See People v. Culp, 127
Ill. App. 3d 916, 920, 468 N.E.2d 1328, 1330-31 (1984). The
First District more recently followed Rose in People v. Miranda,
329 Ill. App. 3d 837, 842-43, 769 N.E.2d 1000, 1005-06 (2002),
finding the waiver rule inapplicable when the defendant did not
appeal the conviction at issue. The Fifth District also cited
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Rose in concluding that, despite the defendant's failure to
perfect a direct appeal, he could raise claims of constitutional
magnitude in his petition for postconviction relief. People v.
Tripp, 248 Ill. App. 3d 706, 711-12, 618 N.E.2d 1157, 1160-61
(1993).
While our supreme court seems to be moving away from
the Rose holding, as evidenced by its language in Whitfield, the
State did not cite and our research did not uncover a case where
the supreme court expressly overruled Rose or the later cases
following it. Moreover, the rationale in Rose still applies to
the current Postconviction Act. The current act does not require
a defendant to exhaust his direct appeal rights to obtain relief
under the act. See 725 ILCS 5/122-1(c) (West 2004) (allowing a
defendant to file a postconviction petition within three years of
his conviction if he or she did not file a direct appeal).
Further, the Postconviction Act continues to permit the trial
court to examine constitutional issues that have escaped earlier
review. See People v. Blair, 215 Ill. 2d 427, 447, 831 N.E.2d
604, 617 (2005). Thus, until our supreme court expressly over-
rules Rose, we will continue to follow it. Since defendant did
not take a direct appeal or subject his conviction to other
collateral review, we find the trial court erred by finding the
right-to-counsel issue forfeited.
B. Deprivation of Constitutional Right
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Defendant also claims the trial court erred by finding
his challenge to the denial of his continuance to obtain counsel
of choice was not "one of constitutional magnitude." We agree.
This court recently addressed a defendant's request for
a continuance to obtain different counsel in People v. Bingham,
364 Ill. App. 3d 642, 645, 847 N.E.2d 903, 906-07 (2006). There,
we noted a defendant has a constitutional right to the assistance
of counsel under both the United States (U.S. Const., amends. VI,
XIV) and Illinois Constitutions (Ill. Const. 1970, art. I, §8)
that includes the right to counsel of his or her choice.
Bingham, 364 Ill. App. 3d at 645, 847 N.E.2d at 906. We further
explained that, "[i]n ruling on a motion to continue to substi-
tute counsel, the trial court must balance defendant's right to
choose his counsel against the efficient and effective adminis-
tration of justice." Bingham, 364 Ill. App. 3d at 645, 847
N.E.2d at 907. Moreover, we concluded that, based on the inade-
quate inquiry into the defendant's request to continue to obtain
new counsel, the trial court had abused its discretion and
violated the defendant's sixth-amendment right to counsel of
choice by denying that motion. Bingham, 364 Ill. App. 3d at 645,
847 N.E.2d at 907.
The State attempts to distinguish Bingham on the facts
and contends the trial court did not abuse its discretion by
denying defendant's motion. However, the issue at this stage of
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the postconviction proceedings is whether defendant has alleged
"the gist of a constitutional claim." (Emphasis added.)
Gaultney, 174 Ill. 2d at 418, 675 N.E.2d at 106. Like the
defendant in Bingham, defendant claims his sixth-amendment right
to counsel of choice was violated by the court's denial of his
motion to continue to obtain new counsel because of an inadequate
inquiry. In his petition, defendant alleged he informed the
court he had spoken to private counsel and his family was to pay
the attorney a retainer that day, and the court did not conduct
any further inquiry. Accordingly, we find defendant has alleged
the gist of a constitutional claim.
While defendant does not challenge the other issue he
raised in his postconviction petition, our supreme court has held
the Postconviction Act does not grant a trial court authority to
partially dismiss a postconviction petition at the first stage
(People v. Rivera, 198 Ill. 2d 364, 370, 763 N.E.2d 306, 310
(2001)), and thus we reverse the dismissal in toto.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment and remand for further proceedings consistent with the
Postconviction Act.
Reversed and remanded with directions.
KNECHT and COOK, JJ., concur.
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