concurring in part and dissenting in part:
I concur with the majority that petitioner, Emmanuel Robinson, is entitled to no remedy because the de minimis delay did not deprive him of the right to file a timely notice of appeal. I dissent, however, from the majority’s review of the merits of petitioner’s postconviction petition because such a review is premature.
To survive summary dismissal, a postconviction petition need only present “ ‘the gist of a constitutional claim.’ ” People v. Boclair, 202 Ill. 2d 89, 99-100, quoting People v. Gaultney, 174 Ill. 2d 410, 418 (1996). As the majority acknowledges, “ ‘[t]he “gist” standard is “a low threshold.” ’ ” 217 Ill. 2d at 60, quoting People v. Edwards, 197 Ill. 2d 239, 244 (2001), quoting Gaultney, 174 Ill. 2d 418. At this stage in the proceedings, the only issue is “whether the petition alleges constitutional deprivations.” See Boclair, 202 Ill. 2d at 102.
In his postconviction petition, petitioner alleges, inter alia, that his trial counsel was ineffective:
(1) for not moving for a substitution of the judge who conducted a hearing on his motion to suppress confession;
(2) for not interviewing a State witness prior to trial and conducting any investigation to discover other witnesses that could have impeached the State witness’ testimony;
(3) for failing to object to Detective John Murray’s hearsay testimony concerning police reports prepared by other police personnel, and failing to impeach Detective Murray’s testimony with other reports, and calling impeachment witnesses;
(4) for not objecting to testimony depicting petitioner as a “drug dealer,” when there was no evidence to corroborate or substantiate that testimony;
(5) for failing to object to highly inflammatory and prejudicial testimony, or impeaching a witness with prior grand jury testimony;
(6) for withdrawing a motion to quash arrest and suppress evidence when the trial court had already granted a motion to suppress petitioner’s inculpatory statement made during custodial interrogation in violation of petitioner’s fifth and sixth amendment rights;
(7) for failing to secure an expert witness to testify concerning firearms;
(8) for failing to move for a suppression hearing based on suggestive identification procedures;
(9) for failing to object to in-court identification of petitioner;
(10) for failing to provide effective assistance of counsel at trial when counsel made no opening statement, objected only twice during the entire trial, cross-examined only two of the State’s seven witnesses, and failed to preserve errors for appellate review.
Petitioner further alleges ineffective assistance of appellate counsel for withdrawing as counsel based on his assumption that if he pursued the appeal petitioner could receive a lengthier sentence.
Petitioner’s postconviction petition certainly presents the “gist” of a constitutional claim to survive the first stage of the process for the adjudication of postconviction petitions. Rather than determining whether petitioner has presented the “gist” of a constitutional claim, however, the majority prematurely reviews the merits of those claims, when the circuit court has not done so.
The proper procedure at this point in the proceedings is to remand the cause to the circuit court for second-stage proceedings where counsel may be appointed to represent the petitioner, and counsel will then have an opportunity to amend the petition. 725 ILCS 5/122—1 et seq. (West 2000); Boclair, 202 Ill. 2d at 100, citing People v. Watson, 187 Ill. 2d 448 (1999). If the petition is not dismissed by motion of the State at the second stage of the postconviction process, then an evidentiary hearing on the merits of the petition will be conducted in the third stage of the postconviction proceedings. 725 ILCS 5/122—6 (West 2000); Boclair, 202 Ill. 2d at 100.
Thus, I would affirm the appellate court judgment, albeit on different grounds, and remand this cause to the circuit court for further proceedings. I therefore respectfully concur in part and dissent in part.