NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2023 IL App (3d) 200390-U
Order filed January 25, 2023
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2023
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit,
) La Salle County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-20-0390
v. ) Circuit No. 11-CF-239
)
JAMIE LOMELI, ) Honorable
) Cynthia M. Raccuglia,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE DAVENPORT delivered the judgment of the court.
Presiding Justice Holdridge and Justice Brennan concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The circuit court erred when it failed to recognize that it had discretion to appoint
counsel to represent defendant in a petition for relief from judgment.
¶2 Defendant, Jamie Lomeli, appeals the dismissal of her petition for relief from judgment.
Defendant argues the circuit court erred in failing to appoint counsel based on its erroneous
belief that it lacked discretion to do so. We reverse and remand with directions.
¶3 I. BACKGROUND
¶4 Following a jury trial, defendant was found guilty of first degree murder (720 ILCS 5/9-
1(a)(3) (West 2010)). The court sentenced defendant to 24 years’ imprisonment. On direct
appeal, we affirmed defendant’s conviction. People v. Lomeli, 2016 IL App (3d) 130817-U.
¶5 On June 29, 2017, defendant filed a postconviction petition. The court appointed counsel
to represent defendant in the postconviction proceedings.
¶6 On December 26, 2017, defendant, as a self-represented litigant, petitioned for relief from
judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401
(West 2016)) and separately moved for appointment of counsel. Legal aid assisted defendant in
drafting and filing the petition and the motion. The State later moved to dismiss defendant’s
petition.
¶7 On March 1, 2018, appointed counsel indicated that while he represented defendant on
her postconviction petition, he would not “necessarily” be involved in defendant’s petition for
relief from judgment. The court addressed defendant’s request for appointment of counsel and
stated,
“The one post-conviction motion is, of course, where you’re entitled to a lawyer
[defendant]. *** On your 2-1401 motion, I need to consider that pro se or if
someone’s going to come from [legal aid], that’s another thing, but you’re not
entitled to an appointed lawyer for [the petition for relief from judgment] because
that’s considered in the nature of a civil action.”
So you’re going to have to talk to the [legal aid] people to see—you’re not
going to get a lawyer appointed on that one so if they want to represent you or do
something, you need to investigate that before I will hear it ***.”
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¶8 On June 6, 2018, when discussing defendant’s petition for relief from judgment, the court
informed counsel that he did not need to appear because he did not represent defendant on that
petition. Counsel indicated that he did not think he could be appointed to represent defendant on
the petition. The court responded that counsel “can’t be appointed.”
¶9 On July 18, 2018, when discussing how to proceed with defendant’s petition, counsel
indicated that he was not involved and that it was a civil issue. The court responded that
defendant was “not entitled to a lawyer.”
¶ 10 On August 29, 2018, the court told the State that “[defendant]’s not entitled to the
appointment of a lawyer.” Later, defendant said, “I’m not sure if I can get somebody appointed
to me for [the petition],” and the court responded, “No. You can’t. *** [Y]our only alternative is
to hire somebody. Otherwise, you have to argue it yourself.” When defendant indicated that she
could not hire an attorney, the court responded that the nature of her allegations “do[ ] not allow
for an appointed lawyer.”
¶ 11 On November 14, 2018, the court told defendant, “you are not entitled to an appointed
lawyer because [section] 2-1401 proceedings are civil in nature.”
¶ 12 On August 6, 2020, defendant told the court that she did not feel “competent enough” to
represent herself in the proceeding. The court responded that defendant did not “have a right ***
to have a lawyer appointed.”
¶ 13 At the hearing on defendant’s petition, defendant informed the court that she had
difficulty reading and writing and did not understand the State’s argument. Defendant proceeded
through the hearing as a self-represented litigant. The court dismissed defendant’s petition, and
this appeal followed.
¶ 14 II. ANALYSIS
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¶ 15 On appeal, defendant argues the circuit court abused its discretion in denying her request
for appointed counsel on her petition for relief from judgment where the record showed the court
misconstrued the law and failed to recognize that it had discretion to appoint counsel. We agree.
¶ 16 Section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2016)) provides a statutory
procedure through which final orders and judgments may be challenged more than 30 days after
their entry. People v. Pinkonsly, 207 Ill. 2d 555, 562 (2003). Although this is a civil remedy, it
has been extended to criminal cases. People v. Vincent, 226 Ill. 2d 1, 8 (2007).
¶ 17 “A petitioner seeking to collaterally attack a judgment has no constitutional right to the
assistance of counsel.” People v. Stoecker, 2020 IL 124807, ¶ 35. Additionally, a petitioner
seeking relief under section 2-1401 has no statutory right to counsel. Id. ¶ 36. Accordingly, a
circuit court is not obligated to appoint counsel in such proceedings. Id. However, the court has
discretionary authority to appoint counsel. Id. “There is error when a trial court refuses to
exercise discretion in the erroneous belief that it has no discretion as to the question presented.”
People v. Queen, 56 Ill. 2d 560, 565 (1974). When a court erroneously believes that it has no
discretion in a matter, its failure to exercise discretion can constitute an abuse of discretion.
People v. Chapman, 194 Ill. 2d 186, 223-24 (2000); See, e.g., People v. Bernard, 2021 IL App
(2d) 181055, ¶ 35 (The circuit court abused its discretion by failing to recognize that it had
discretion to appoint counsel on a petition for relief from judgment requiring remand where the
record did “not conclusively establish that defendant was not harmed by the error.”). The effect
of such a failure to exercise discretion must be assessed in the context of the entire proceeding.
Chapman, 194 Ill. 2d at 224. Automatic reversal is not required because not every error is of
such magnitude that relief is warranted. Id. at 224-25.
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¶ 18 Here, the record shows the circuit court held the erroneous belief that it did not have
discretion to appoint counsel to represent defendant on her petition for relief from judgment. The
court explained several times that due to the nature of defendant’s claims and because a petition
for relief from judgment was a civil action, the court was “not allow[ed]” to and could not
appoint counsel. While the court’s statements that defendant did not have a “right” and was “not
entitled” to appointed counsel for her petition is correct under the statute, those statements do not
reflect the full state of the law. As set forth above, the court overlooked that it could, in an
exercise of its discretion, appoint counsel for defendant. Because the court failed to understand
that it had discretion to appoint counsel, it could not exercise its discretion in denying
defendant’s request for counsel. Accordingly, we conclude the circuit court abused its
discretion. See Queen, 56 Ill. 2d at 565-66.
¶ 19 The State contends that even if the court committed error by failing to appoint counsel,
the error was harmless, as the court ultimately found that defendant’s petition lacked merit. We
disagree. When conducting harmless error analysis, we determine whether the outcome would
have been the same regardless of the error. See People v. Mullins, 242 Ill. 2d 1, 23 (2011). We
determine harmless error based on the particular facts of each case, considering the record as a
whole. People v. Howard, 147 Ill. 2d 103, 148 (1991).
¶ 20 Here, the record does not conclusively establish that defendant was not harmed by the
court’s error. See Chapman, 194 Ill. 2d at 224; see also Bernard, 2021 IL App (2d) 181055, ¶ 35.
Specifically, we cannot determine whether appointed counsel would have amended defendant’s
petition or how those amendments would have affected the outcome of the proceedings. See
Bernard, 2021 IL App (2d) 181055, ¶ 35. Moreover, defendant would have benefitted from the
representation of counsel in responding to the State’s motion to dismiss and representation at the
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hearing, as defendant indicated that she was not “competent enough” to represent herself in those
proceedings, had difficulty reading and writing, and did not understand the State’s argument.
Therefore, we reverse the circuit court’s denial of defendant’s petition for relief from judgment
and remand with directions for the court to exercise its discretion and determine whether to
appoint counsel.
¶ 21 III. CONCLUSION
¶ 22 The judgment of the circuit court of La Salle County is reversed and remanded with
directions.
¶ 23 Reversed and remanded with directions.
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