concurring in part and dissenting in part:
The court today holds that the appellate court erred in applying the familiar Strickland standard to defendant’s claim that his section 2 — 1401 attorney rendered him ineffective assistance of counsel. While I agree that the Strickland analysis is inapplicable under these circumstances, I disagree with the court’s treatment of defendant’s contention and, as a result, cannot join in that portion of its opinion.
I
Defendant began these collateral proceedings by filing a pro se section 2 — 1401 petition for relief. In the petition, defendant alleged two distinct reasons for claiming ineffective assistance of counsel. Defendant asserted that he met with his trial attorney after sentencing and expressed “shock” over receiving a 30-year sentence and that he inquired as to why he had received a 30-year sentence on a Class 1 felony. Defendant alleged that he asked his attorney to file a motion to reduce sentence and that no action was ever taken on defendant’s request. Defendant further alleged that he then spoke with his appointed appellate attorney and asked her to address the sentencing issue. Defendant alleged that his appellate attorney erroneously replied that his previous attorney’s failure to move to reduce sentence rendered the issue waived. Defendant further claimed that neither his trial attorney nor his appellate attorney “ever mentioned] that the two unlawful deliveries were lesser included offenses of narcotic racketeering, as such were barred by double jeopardy.” Defendant attached an affidavit to his petition and sought leave of court to proceed as a pauper in the proceedings. In a memorandum of law filed with the petition, defendant argued that his appellate attorney should have recognized that defendant’s sentencing scheme was erroneous on its face: “The unlawful delivery charges are included offenses of narcotic racketeering *** and a reviewing court may review an issue not properly preserved if it involves an error affecting a substantial right of the defendant.”
The transcripts reveal that the circuit court was concerned about defendant’s pro se allegations and, to that end, appointed counsel for defendant. Counsel thereafter filed an “Amended Petition to Reduce Sentence.” The record reveals, however, that defendant was dissatisfied with his appointed counsel and that he moved to have her dismissed and be allowed to proceed pro se.2 The court denied that motion and eventually denied relief on defendant’s petition.
On appeal, defendant argued that the circuit court erred in denying his petition.3 He claimed that his convictions violated the double jeopardy clause and that all of his attorneys, including the one appointed in the collateral proceeding, had rendered constitutionally infirm assistance by failing to raise the issue. The State raised three arguments in support of the circuit court’s judgment. The State first argued that defendant’s section 2 — 1401 petition was untimely. The State further argued that, under Strickland, counsel was not ineffective for either failing to argue the vacatur of the convictions on the lesser-included offenses or failing to move to reduce sentence.
The appellate court began its opinion by noting that the State’s contention, raised for the first time in its appellate brief, that defendant’s section 2 — 1401 petition was untimely, was waived. 331 Ill. App. 3d at 986. The appellate court then noted that defendant’s contentions concerned ineffective assistance of counsel claims at the sentencing, appeal, and petition stages of this case because none of the attorneys raised certain sentencing issues. 331 Ill. App. 3d at 986. The court did not consider any of these arguments, however, because “the ineffectiveness of counsel is not appropriate for review in a proceeding under section 2 — 1401.” 331 Ill. App. 3d at 986-87. The appellate court, however, agreed with defendant that his section 2 — 1401 attorney was ineffective for failing to raise the lesser-included offense issue. 331 Ill. App. 3d at 987.
In today’s opinion, this court explains that the appellate court correctly refused to consider the claims raised in the section 2 — 1401 petition regarding the ineffective assistance of trial and appellate counsel. The court points out that such claims are more properly raised in proceedings under our Post-Conviction Hearing Act. 207 Ill. 2d at 564-66. I agree. The Act is the proper vehicle in which to raise collateral constitutional challenges to a conviction. The court goes on to note, however, that the appellate court erred in holding that defendant received ineffective assistance of counsel from his section 2 — 1401 attorney.
As an initial matter, it must be remembered that our Post-Conviction Hearing Act (725 ILCS 5/122 — 1 et seq. (West 2002)) was developed in response to criticisms regarding the collateral procedures available under Illinois law to prisoners who wished to attack their convictions. See People v. Slaughter, 39 Ill. 2d 278 (1968). As we explained in Slaughter, “[t]he available methods by which a judgment of conviction could be attacked in Illinois were writ of error, habeas corpus, and coram nobis. The Supreme Court of the United States was troubled, because no matter which method a prisoner pursued, he appeared always to be met by a claim that he should have pursued a different remedy.” Slaughter, 39 Ill. 2d at 284. As the court correctly points out, under the Post-Conviction Hearing Act counsel are appointed to represent postconviction petitioners “ ‘not to protect them from the prosecutorial forces of the State, but to shape their complaints into the proper legal form and to present those complaints to the court.’ ” (Emphasis added.) 207 Ill. 2d at 568, quoting People v. Owens, 139 Ill. 2d 351, 365 (1990). However, this court has also recognized that “the same lack of legal knowledge which causes a prisoner to draft an inadequate post-conviction petition might result in his selecting the wrong method of collaterally attacking his conviction. A salutary result, consistent with the intent of the Post-Conviction Hearing Act *** would be achieved if the circuit court, upon finding that a pro se petition, however labeled, and however inartfully drawn, alleged violations of the petitioner’s rights cognizable in a post-conviction proceeding, would thereafter, for all purposes, treat it as such.” People ex rel. Palmer v. Twomey, 53 Ill. 2d 479, 484 (1973).
My review of the transcripts in this case reveals that the circuit court attempted to treat defendant’s section 2 — 1401 petition as a postconviction pleading in conformity with this court’s directive in Twomey. My conclusion is supported by several facts which are established by the record. First, defendant’s pro se claims were couched in terms of a constitutional violation — ineffective assistance of both trial and appellate counsel, which would serve as the constitutional predicate necessary for pleading an action under the Act. Second, the trial judge appointed counsel to defendant because she believed that defendant’s claims of error were substantial enough to warrant professional legal assistance. I note that section 2 — 1401 does not provide for the appointment of counsel, but the Act does. Third, the trial judge referred to the Act on several occasions as evinced by her comments in the transcripts, in one instance going so far as to cite the standard necessary to survive dismissal under the Act.4 Taken together, these facts demonstrate to me that the circuit court attempted to help defendant by having an appointed attorney take over the case and shape defendant’s complaints into the proper legal form.
In this appeal, however, the court dismisses the relevance of Twomey by stating that any argument based on Twomey would fail because
“although [defendant’s] initial petition was pro se, his amended petition, which is the subject of this appeal, was prepared by an attorney and clearly brought under section 2 — 1401.” 207 Ill. 2d at 566.
Thus, according to the court, because defendant received the benefit of counsel, we need not treat the section 2 — 1401 petition as a postconviction petition.
Having concluded that the presence of counsel in this case renders unnecessary our viewing defendant’s section 2 — 1401 petition as a postconviction petition, the court goes on to discuss whether the appellate court erred in holding that defendant received ineffective assistance of counsel at the section 2 — 1401 proceedings. The court notes correctly that a petitioner seeking relief pursuant to the Post-Conviction Hearing Act is guaranteed only the level of assistance provided under the Act, which this court has ruled is a “reasonable” level of assistance. 207 Ill. 2d at 567. The court points out that defendant here is not proceeding under the Act, but rather is proceeding pursuant to section 2 — 1401. The court states:
“Section 2 — 1401 does not specify any level of assistance, and the appellate court erroneously applied the Strickland standard to the defendant’s claim that his section 2 — 1401 attorney was ineffective. Assuming that the defendant was entitled to the same level of assistance on his section 2 — 1401 petition as on a postconviction petition, the defendant did not receive unreasonable assistance. The defendant’s attorney was not unreasonable for failing to raise a putative legal error in a proceeding where only fact errors are cognizable.” 207 Ill. 2d at 568.
I agree that the appellate court was incorrect in applying a Strickland analysis to defendant’s claim. However, I cannot agree that defendant received “reasonable” assistance of counsel under these facts.
The claims asserted by defendant in his pro se petition clearly form the basis of relief under a postconviction proceeding. The trial court clearly recognized as much and sought to appoint counsel to aid defendant in the presentation of his claims. Under the court’s ruling today, however, defendant would have been better off without the appointment of counsel because then each court at every level would have been obligated to treat his allegations as a postconviction petition filed under the Act. Defendant’s pro se petition contained claims of ineffective assistance of both trial and appellate counsel, based on (i) the failure to raise the lesser-included offenses issue and (ii) the failure to seek reduction of the 30-year sentence. Today’s opinion does not address whether appointed counsel was reasonable in her representation where she neglected to redraft these obvious constitutional contentions into the proper legal form, i.e., a petition under the Post-Conviction Hearing Act. In my view, any assessment of reasonableness must turn on whether there is any merit to either argument. Instead, the court states that it was not unreasonable for counsel to not include the lesser-included offense issue in her amended section 2 — 1401 petition because such an assertion of error is one of law, and section 2 — 1401 constitutes a proceeding where only fact errors are cognizable. 207 Ill. 2d at 568. Such a response misses the mark in my view. I believe counsel rendered no assistance to defendant when she failed to recognize that defendant’s initial pro se petition contained two bases for relief. Counsel failed in “shaping] [defendant’s] complaints into the proper legal form and *** presenting] those complaints to the court” (People v. Owens, 139 Ill. 2d at 364-65) by neglecting to raise defendant’s lesser-included offense issue as a separate claim under the Post-Conviction Hearing Act and by neglecting to redraft the ineffective assistance of counsel claims under the Act as well. Ironically, had the circuit court not appointed counsel to defendant, this court, as well as the appellate court, would have been obligated to treat defendant’s pro se section 2 — 1401 petition as a postconviction petition (see Twomey, 53 Ill. 2d at 484) and, as such, would be required to examine, in the course of determining whether defendant’s trial and appellate counsel were ineffective, the merits of defendant’s lesser-included offenses argument. Under these circumstances, I cannot join in the court’s conclusion that counsel appointed during these collateral proceedings provided “reasonable” representation when her so-called “reasonable” actions are what prevents this court from addressing the sum and substance of defendant’s pro se allegations.
I am disturbed that my colleagues are content to say that counsel’s representation was not unreasonable under these facts and that, because of this, we need not concern ourselves with the substance of defendant’s claims. I would posit that an attorney who makes such a fundamental mistake has not provided any level of assistance to his or her client, let alone a “reasonable” level of assistance. In my view, appointed counsel should have recognized that defendant’s claims of ineffective assistance of counsel had to be redrafted in the form of a petition under the Post-Conviction Hearing Act. Moreover, any determination regarding the reasonableness of counsel’s actions would require this court to review the merits of defendant’s claim, i.e., whether his contention regarding the lesser-included offenses was meritorious. If that claim is not meritorious, then counsel could not be faulted for failing to raise or redraft a nonmeritorious claim in postconviction form. Therefore, I disagree with the court’s decision, “declin[ing] to reach” the issue regarding whether illegal delivery is a lesser-included offense of narcotics racketeering. 207 Ill. 2d at 565.
Today’s decision is notable in that defendant is told that he chose the wrong legal forum to raise his challenge, but that the lawyer was reasonable for ignoring the claim because it was not cognizable under section 2 — 1401. Ironically, this is the same lawyer to whom defendant, in the circuit court, presciently characterized as having had no understanding of this case. By its actions today, the court confirms defendant’s suspicions.
II
The resolution of defendant’s cross-appeal is necessarily impacted by the conclusion reached on the lesser-included offenses issue. The State concedes that if the convictions for illegal delivery are reinstated, then defendant’s extended-term sentence for narcotics racketeering cannot stand. As I stated above, I do not join in the court’s decision as to that issue because I believe that this court must first assess the merits of defendant’s lesser-included offenses issue in order to resolve whether appointed counsel provided “unreasonable” representation in this collateral proceeding. The court does not do that and, as a result of its treatment of that issue, the court reinstates defendant’s illegal delivery charges. Given that fact, I accept the State’s concession, and join only in that portion of the opinion which reduces the sentence.
Ill
In this case, defendant attempted to raise several constitutional challenges to his sentences for illegal delivery and narcotics racketeering. Unfortunately for defendant, he erroneously utilized the wrong legal vehicle to raise these challenges. Notwithstanding the circuit court’s appointment of counsel, defendant’s claims are still out of our reach because his attorney failed to shape his contentions into the proper legal form and that failure is deemed “reasonable” by my colleagues. This conclusion is reached without first assessing whether defendant’s constitutional challenges have merit. This is troubling since two appellate justices believe that defendant’s convictions violated the single act rule, which has its basis in the double jeopardy clause of the United States Constitution. See People v. King, 66 Ill. 2d 551 (1977) (and cases cited therein). Under these circumstances, our inquiry into whether appointed counsel rendered “reasonable” representation to defendant in these proceedings should consist of more than the court’s single sentence, which concludes that counsel was not ineffective for failing to raise the legal argument in the section 2 — 1401 petition. See 207 Ill. 2d at 568. The proper inquiry, in my view, is whether counsel acted reasonably in declining to redraft defendant’s pro se contention regarding the lesser-included offenses issue into the proper legal form. Such an inquiry is particularly apt in this case where the record affirmatively demonstrates that defendant was so dissatisfied with his attorney that he sought leave to proceed pro se.
CHIEF JUSTICE McMORROW joins in this partial concurrence and partial dissent.
In his written motion for dismissal of appointed counsel, defendant stated that it was clear to him that his appointed counsel “did not have the time, desire, or understanding of this cause to adequately represent” him. (Emphasis added.) Defendant specifically took issue with the amended petition that counsel filed in his behalf.
Defendant was represented by a different attorney on appeal.
I would point out that counsel, in response to the court, agreed with the court on this point.