2021 IL App (1st) 191820 No. 1-19-1820 Opinion filed December 27, 2021 First Division
______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 11 CR 22 ) DIEGO GARCIA, ) Honorable ) Ramon Ocasio III, Defendant-Appellant. ) Judge, presiding.
JUSTICE WALKER delivered the judgment of the court with opinion. Justices Pucinski and Coghlan concurred in the judgment and opinion.
OPINION
¶1 The trial court dismissed Diego Garcia’s postconviction petition without an evidentiary
hearing. Garcia argues on appeal that his postconviction attorney did not provide the reasonable
assistance required by Illinois Supreme Court Rule 651(c) (eff. July 1, 2017).
¶2 Where a postconviction petitioner asserts he received ineffective assistance of trial counsel
because trial counsel failed to file an appeal from a conviction entered on a plea of guilty,
postconviction counsel does not provide the reasonable assistance required by Rule 651 if No. 1-19-1820
postconviction counsel does not amend the petition to state grounds for withdrawing the guilty
plea. We hold that, because the attorney did not make all the amendments necessary for adequate
presentation of Garcia’s claims, the dismissal of the petition must be reversed and remanded for
appointment of new counsel to assist Garcia with his postconviction petition.
¶3 I. BACKGROUND
¶4 On July 9, 2013, Garcia pled guilty to charges of armed robbery and aggravated discharge
of a firearm. The trial court, in accord with the plea bargain, sentenced Garcia to 30 years in prison
for armed robbery and 15 years for aggravated discharge, with the sentences to run concurrently.
¶5 In January 2015, Garcia filed a postconviction petition. The court appointed the public
defender to assist Garcia, and the attorney filed an amended postconviction petition in May 2018.
The attorney filed a certificate under Rule 651, asserting that she spoke with Garcia, examined the
transcripts and the postconviction petition, and found the supplemental petition adequately
presented Garcia’s claims. Garcia argued that he received ineffective assistance of trial counsel
when his attorney told him, incorrectly, that in addition to good time credit Garcia could receive
one-half day credit against his sentence for every day he spent in a school program. When he
arrived at the prison, his counselor told him his Class X conviction for armed robbery made him
ineligible for school credit. Garcia said in an affidavit that, if he had known of the restriction on
school credit, he would not have pled guilty. He also claimed his trial counsel provided ineffective
assistance when she failed to file a notice of appeal, as he requested.
¶6 The trial court entered an order denying the postconviction petition. The court held that
incorrect advice about school credit concerned only a collateral consequence of the conviction and
that therefore it could not show ineffective assistance of counsel. The court dismissed the claim
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regarding the notice of appeal because Garcia “failed to include any supporting materials
whatsoever.” Garcia now appeals.
¶7 II. ANALYSIS
¶8 Garcia does not dispute the trial court’s rulings. Instead, he contends only that he did not
receive reasonable assistance from postconviction counsel. The Post-Conviction Hearing Act (725
ILCS 5/122-1 et seq. (West 2018)) entitles petitioners to a reasonable level of assistance from
counsel. People v. Perkins, 229 Ill. 2d 34, 42 (2007). Rule 651 imposes on counsel a duty to make
any amendments to the postconviction petition necessary for adequate presentation of the
petitioner’s claims. Id. Because postconviction counsel filed a Rule 651 affidavit, Garcia must
rebut the presumption that counsel provided reasonable assistance. People v. Jones, 2011 IL App
(1st) 092529, ¶ 23.
¶9 If a defendant who has pled guilty seeks to appeal, he must first file a motion to withdraw
the guilty plea or reconsider the sentence. People v. Flowers, 208 Ill. 2d 291, 300-01 (2003). In
the absence of such a motion, the appellate court must dismiss the appeal. Id. at 301. Thus, to state
a claim that his trial counsel provided ineffective assistance by failing to file an appeal, Garcia
needed to state grounds for withdrawing his guilty plea. See People v. Edwards, 197 Ill. 2d 239,
257-58 (2001); People v. Lamar, 2015 IL App (1st) 130542, ¶ 16. Postconviction counsel here did
not amend the petition to include grounds for withdrawal of the guilty plea, and counsel did not
supplement the petition with necessary supporting affidavits.
¶ 10 “[T]he duty to adequately or properly present defendant’s claims necessarily includes
attempting to overcome procedural bars that will otherwise defeat his claims.” (Internal quotation
marks omitted.) People v. Schlosser, 2017 IL App (1st) 150355, ¶ 38. Defendant’s counsel
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provided unreasonable assistance by failing to make all amendments necessary to ensure that the
petition adequately presented defendant’s claims. See People v. Guzman, 2014 IL App (3d)
090464, ¶¶ 38-40, aff’d, 2015 IL 118749.
¶ 11 The State argues that, because Garcia did not state adequate grounds for withdrawing the
guilty plea, Garcia has not overcome the presumption that counsel complied with Rule 651. The
argument echoes the State’s argument in Edwards, where Edwards, who pled guilty, argued that
his trial counsel provided ineffective assistance by failing to file an appeal. The State argued that
Edwards had not shown that he had adequate grounds for withdrawing the plea. Our supreme court
found Edwards’s postconviction petition sufficient to state the gist of a constitutional claim,
providing grounds to advance the case to the second stage of postconviction proceedings, despite
the absence of grounds for withdrawal of the plea. The Edwards court clarified that, at the second
stage of postconviction proceedings, the defendant, with the assistance of counsel, must provide
“some explanation of the grounds that could have been presented in the motion to withdraw the
plea.” Edwards, 197 Ill. 2d at 258. Counsel here failed to provide the explanation required.
¶ 12 If postconviction counsel determined that Garcia’s petition lacked merit because he had no
grounds for withdrawing the guilty plea, counsel should have sought leave to withdraw as counsel.
See People v. Shortridge, 2012 IL App (4th) 100663, ¶ 15. Because counsel did not provide the
assistance required by Rule 651, we reverse the order dismissing the postconviction petition and
“remand for the appointment of new counsel to amend the petition as necessary and provide the
proper verified affidavit[s].” Guzman, 2014 IL App (3d) 090464, ¶ 40.
¶ 13 III. CONCLUSION
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¶ 14 The trial court correctly dismissed the amended postconviction filed by Garcia’s attorney
because the attorney did not make the necessary amendments. The attorney also did not
supplement the petition with the documents needed to overcome procedural hurdles for
presentation of Garcia’s claims. Because counsel did not provide the reasonable assistance
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2021 IL App (1st) 191820 No. 1-19-1820 Opinion filed December 27, 2021 First Division
______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 11 CR 22 ) DIEGO GARCIA, ) Honorable ) Ramon Ocasio III, Defendant-Appellant. ) Judge, presiding.
JUSTICE WALKER delivered the judgment of the court with opinion. Justices Pucinski and Coghlan concurred in the judgment and opinion.
OPINION
¶1 The trial court dismissed Diego Garcia’s postconviction petition without an evidentiary
hearing. Garcia argues on appeal that his postconviction attorney did not provide the reasonable
assistance required by Illinois Supreme Court Rule 651(c) (eff. July 1, 2017).
¶2 Where a postconviction petitioner asserts he received ineffective assistance of trial counsel
because trial counsel failed to file an appeal from a conviction entered on a plea of guilty,
postconviction counsel does not provide the reasonable assistance required by Rule 651 if No. 1-19-1820
postconviction counsel does not amend the petition to state grounds for withdrawing the guilty
plea. We hold that, because the attorney did not make all the amendments necessary for adequate
presentation of Garcia’s claims, the dismissal of the petition must be reversed and remanded for
appointment of new counsel to assist Garcia with his postconviction petition.
¶3 I. BACKGROUND
¶4 On July 9, 2013, Garcia pled guilty to charges of armed robbery and aggravated discharge
of a firearm. The trial court, in accord with the plea bargain, sentenced Garcia to 30 years in prison
for armed robbery and 15 years for aggravated discharge, with the sentences to run concurrently.
¶5 In January 2015, Garcia filed a postconviction petition. The court appointed the public
defender to assist Garcia, and the attorney filed an amended postconviction petition in May 2018.
The attorney filed a certificate under Rule 651, asserting that she spoke with Garcia, examined the
transcripts and the postconviction petition, and found the supplemental petition adequately
presented Garcia’s claims. Garcia argued that he received ineffective assistance of trial counsel
when his attorney told him, incorrectly, that in addition to good time credit Garcia could receive
one-half day credit against his sentence for every day he spent in a school program. When he
arrived at the prison, his counselor told him his Class X conviction for armed robbery made him
ineligible for school credit. Garcia said in an affidavit that, if he had known of the restriction on
school credit, he would not have pled guilty. He also claimed his trial counsel provided ineffective
assistance when she failed to file a notice of appeal, as he requested.
¶6 The trial court entered an order denying the postconviction petition. The court held that
incorrect advice about school credit concerned only a collateral consequence of the conviction and
that therefore it could not show ineffective assistance of counsel. The court dismissed the claim
-2- No. 1-19-1820
regarding the notice of appeal because Garcia “failed to include any supporting materials
whatsoever.” Garcia now appeals.
¶7 II. ANALYSIS
¶8 Garcia does not dispute the trial court’s rulings. Instead, he contends only that he did not
receive reasonable assistance from postconviction counsel. The Post-Conviction Hearing Act (725
ILCS 5/122-1 et seq. (West 2018)) entitles petitioners to a reasonable level of assistance from
counsel. People v. Perkins, 229 Ill. 2d 34, 42 (2007). Rule 651 imposes on counsel a duty to make
any amendments to the postconviction petition necessary for adequate presentation of the
petitioner’s claims. Id. Because postconviction counsel filed a Rule 651 affidavit, Garcia must
rebut the presumption that counsel provided reasonable assistance. People v. Jones, 2011 IL App
(1st) 092529, ¶ 23.
¶9 If a defendant who has pled guilty seeks to appeal, he must first file a motion to withdraw
the guilty plea or reconsider the sentence. People v. Flowers, 208 Ill. 2d 291, 300-01 (2003). In
the absence of such a motion, the appellate court must dismiss the appeal. Id. at 301. Thus, to state
a claim that his trial counsel provided ineffective assistance by failing to file an appeal, Garcia
needed to state grounds for withdrawing his guilty plea. See People v. Edwards, 197 Ill. 2d 239,
257-58 (2001); People v. Lamar, 2015 IL App (1st) 130542, ¶ 16. Postconviction counsel here did
not amend the petition to include grounds for withdrawal of the guilty plea, and counsel did not
supplement the petition with necessary supporting affidavits.
¶ 10 “[T]he duty to adequately or properly present defendant’s claims necessarily includes
attempting to overcome procedural bars that will otherwise defeat his claims.” (Internal quotation
marks omitted.) People v. Schlosser, 2017 IL App (1st) 150355, ¶ 38. Defendant’s counsel
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provided unreasonable assistance by failing to make all amendments necessary to ensure that the
petition adequately presented defendant’s claims. See People v. Guzman, 2014 IL App (3d)
090464, ¶¶ 38-40, aff’d, 2015 IL 118749.
¶ 11 The State argues that, because Garcia did not state adequate grounds for withdrawing the
guilty plea, Garcia has not overcome the presumption that counsel complied with Rule 651. The
argument echoes the State’s argument in Edwards, where Edwards, who pled guilty, argued that
his trial counsel provided ineffective assistance by failing to file an appeal. The State argued that
Edwards had not shown that he had adequate grounds for withdrawing the plea. Our supreme court
found Edwards’s postconviction petition sufficient to state the gist of a constitutional claim,
providing grounds to advance the case to the second stage of postconviction proceedings, despite
the absence of grounds for withdrawal of the plea. The Edwards court clarified that, at the second
stage of postconviction proceedings, the defendant, with the assistance of counsel, must provide
“some explanation of the grounds that could have been presented in the motion to withdraw the
plea.” Edwards, 197 Ill. 2d at 258. Counsel here failed to provide the explanation required.
¶ 12 If postconviction counsel determined that Garcia’s petition lacked merit because he had no
grounds for withdrawing the guilty plea, counsel should have sought leave to withdraw as counsel.
See People v. Shortridge, 2012 IL App (4th) 100663, ¶ 15. Because counsel did not provide the
assistance required by Rule 651, we reverse the order dismissing the postconviction petition and
“remand for the appointment of new counsel to amend the petition as necessary and provide the
proper verified affidavit[s].” Guzman, 2014 IL App (3d) 090464, ¶ 40.
¶ 13 III. CONCLUSION
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¶ 14 The trial court correctly dismissed the amended postconviction filed by Garcia’s attorney
because the attorney did not make the necessary amendments. The attorney also did not
supplement the petition with the documents needed to overcome procedural hurdles for
presentation of Garcia’s claims. Because counsel did not provide the reasonable assistance
required by Rule 651, we reverse and remand for further proceedings on the postconviction
petition.
¶ 15 Reversed and remanded.
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No. 1-19-1820
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 11-CR-22; the Hon. Ramon Ocasio III, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and S. Amanda Ingram, of for State Appellate Defender’s Office, of Chicago, for appellant. Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg, Clare Wesolik Connolly, and Hareena Meghani- Appellee: Wakely, Assistant State’s Attorneys, of counsel), for the People.
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