People v. Mares

2018 IL App (2d) 150565

Opinion

2018 IL App (2d) 150565

No. 2-15-0565

Opinion filed January 26, 2018

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Boone County. ) Plaintiff-Appellee, ) ) v. ) No. 10-CF-76 ) JEREMY R. MARES, ) Honorable ) C. Robert Tobin III, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justice McLaren specially concurred, with opinion. Justice Jorgensen dissented, with opinion.

OPINION

¶1 Defendant, Jeremy R. Mares, appeals from an order of the circuit court of Boone County

granting the State’s motion to dismiss his amended petition under the Post-Conviction Hearing

Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)) for relief from his conviction of armed

violence (720 ILCS 5/33A-2(a) (West 2010)). Defendant argues that he is entitled to relief on the

basis that the disposition of his direct appeal violated Anders v. California, 386 U.S. 738 (1967),

and People v. Jones, 38 Ill. 2d 384 (1967). We affirm.

¶2 Defendant was convicted following a bench trial. The armed-violence conviction was

based on evidence that defendant committed the offense of aggravated battery while armed with 2018 IL App (2d) 150565

a “Category II weapon,” namely a box cutter. See 720 ILCS 5/33A-1(c)(2) (West 2010).

Defendant was also found guilty of several counts of aggravated battery based on the same

incident, but the trial court did not enter a judgment of conviction on those counts. The trial court

sentenced defendant to a 10-year prison term for armed violence. Defendant appealed, and the

Office of the State Appellate Defender was appointed to represent him. Appointed counsel did

not file an appellate brief. Instead, counsel filed an “Unopposed Motion for Summary

Disposition,” contending that the amount of court costs imposed by the trial court was excessive.

The motion sought a refund of the overcharge. The motion stated that “counsel has read the

complete record and has found no other issues to raise on appeal.” On July 12, 2013, we granted

the motion and refunded defendant $162. People v. Mares, No. 2-12-0493 (July 12, 2013)

(minute order). Six days later we vacated that order and increased the refund to $200. Mares, No.

2-12-0493 (July 18, 2013) (minute order). The order stated, “THIS ORDER IS FINAL AND

SHALL STAND AS THE MANDATE OF THIS COURT.” On January 15, 2014, defendant

filed a pro se petition under the Act. The trial court appointed counsel to represent defendant,

and counsel amended the petition. The State successfully moved to dismiss the amended petition,

and this appeal followed.

¶3 Defendant now argues that, by doing nothing more than moving for a summary

disposition of his direct appeal, appellate counsel failed to act as an advocate for him. According

to defendant, if there were no meritorious issues that could be raised on appeal, counsel should

have moved to withdraw in accordance with the dictates of Anders and Jones. Otherwise,

defendant argues, counsel was obligated to submit an appellate brief (as opposed to a motion for

summary disposition). Defendant also argues that proper advocacy in a criminal appeal entails

raising some error pertaining to either the adjudication of the defendant’s guilt or the sentence

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imposed. According to defendant, an error in the computation of costs pertains to neither of those

subjects. Defendant contends, in essence, that we should reopen the judgment on direct appeal so

that he may raise a new, supposedly meritorious issue: whether a box cutter is a dangerous

weapon within the meaning of the armed-violence statute. Defendant also argues that, in the

interest of judicial economy, we should decide that issue now, rather than granting defendant

another appeal.

¶4 We preface our analysis of these arguments with a brief review of the legal principles

governing proceedings under the Act:

“The Act provides a three-stage process for adjudicating postconviction petitions.

At the first stage, the circuit court determines whether the petition is ‘frivolous or is

patently without merit.’ [Citation.] The court makes an independent assessment as to

whether the allegations in the petition, liberally construed and taken as true, set forth a

constitutional claim for relief. [Citation.] The court considers the petition’s ‘substantive

virtue’ rather than its procedural compliance. [Citation.] If the court determines the

petition is frivolous or patently without merit, the court dismisses the petition. [Citation.]

If the petition is not dismissed, it will proceed to the second stage.

At the second stage, the court may appoint counsel to represent an indigent

defendant, and counsel may amend the petition if necessary. [Citation.] The State may

then file a motion to dismiss the petition. [Citation.] If the State does not file a motion to

dismiss or if the court denies the State’s motion, the petition will proceed to the third

stage and the court will conduct an evidentiary hearing on the merits of the petition.

[Citation.]” People v. Hommerson, 2014 IL 115638, ¶¶ 7-8.

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To survive a second-stage motion to dismiss, the petition must make a substantial showing of a

constitutional violation. People v. Domagala, 2013 IL 113688, ¶ 35.

¶5 To determine whether defendant’s petition should have survived the State’s motion to

dismiss—i.e., whether the petition should have proceeded to the third stage—we first examine

the salient principles governing an indigent defendant’s right to counsel in a criminal appeal. In

Douglas v. California, 372 U.S. 353 (1963), the United States Supreme Court reiterated an

earlier holding that “a State may not grant appellate review in such a way as to discriminate

against some convicted defendants on account of their poverty.” Id. at 355 (citing Griffin v.

Illinois, 351 U.S. 12 (1956)). Applying this principle, the Court invalidated a California rule of

criminal procedure that made the appointment of counsel on appeal contingent upon a

determination by the appellate court whether, upon a preliminary review of the record, the

appointment of counsel would be helpful to the defendant or to the court. Id. The Court reasoned:

“[U]nder [California’s] present practice the type of an appeal a person is afforded in the

District Court of Appeal hinges upon whether or not he can pay for the assistance of

counsel. If he can the appellate court passes on the merits of his case only after having the

full benefit of written briefs and oral argument by counsel. If he cannot the appellate

court is forced to prejudge the merits before it can even determine whether counsel

should be provided. At this stage in the proceedings only the barren record speaks for the

indigent, and, unless the printed pages show that an injustice has been committed, he is

forced to go without a champion on appeal. Any real chance he may have had of showing

that his appeal has hidden merit is deprived him when the court decides on an ex parte

examination of the record that the assistance of counsel is not required.” Id. at 355-56.

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The Douglas Court explained that “[t]here is lacking that equality demanded by the Fourteenth

Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s

examination into the record, research of the law, and marshalling of arguments on his behalf,

while the indigent, already burdened by a preliminary determination that his case is without

merit, is forced to shift for himself.” Id. at 357-58.

¶6 In Anders the Court relied, in part, on this principle as a basis for defining appointed

counsel’s role on appeal. The question arose where appointed counsel advised the appellate

court, by letter, that he had concluded that there was no merit to the appeal and that he would not

file a brief on the defendant’s behalf. The appellate court refused the defendant’s request for new

counsel, leaving him to file a pro se brief. The Anders Court held that “[t]he constitutional

requirement of substantial equality and fair process can only be attained where counsel acts in

the role of an active advocate in behalf of his client, as opposed to that of amicus curiae.”

Anders, 386 U.S. at 744. The Court concluded that counsel was not acting as an active advocate

when he submitted a “no-merit letter” to the appellate court. According to the Court:

“[Appointed counsel’s] role as advocate requires that he support his client’s appeal to the

best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a

conscientious examination of it, he should so advise the court and request permission to

withdraw. That request must, however, be accompanied by a brief referring to anything in

the record that might arguably support the appeal. A copy of counsel’s brief should be

furnished the indigent and time allowed him to raise any points that he chooses; the

court—not counsel—then proceeds, after a full examination of all the proceedings, to

decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to

withdraw and dismiss the appeal insofar as federal requirements are concerned, or

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proceed to a decision on the merits, if state law so requires. On the other hand, if it finds

any of the legal points arguable on their merits (and therefore not frivolous) it must, prior

to decision, afford the indigent the assistance of counsel to argue the appeal.

This requirement would not force appointed counsel to brief his case against his

client but would merely afford the latter that advocacy which a nonindigent defendant is

able to obtain. It would also induce the court to pursue all the more vigorously its own

review because of the ready references not only to the record, but also to the legal

authorities as furnished it by counsel. The no-merit letter, on the other hand, affords

neither the client nor the court any aid. The former must shift entirely for himself while

the court has only the cold record which it must review without the help of an advocate.

Moreover, such handling would tend to protect counsel from the constantly increasing

charge that he was ineffective and had not handled the case with that diligence to which

an indigent defendant is entitled. This procedure will assure penniless defendants the

same rights and opportunities on appeal—as nearly as is practicable—as are enjoyed by

those persons who are in a similar situation but who are able to afford the retention of

private counsel.” Id. at 744-45.

See also Jones, 38 Ill. 2d at 385 (restating Anders’s requirements). When counsel is permitted to

withdraw from an appeal without complying with Anders, reversal is automatic. Penson v. Ohio,

488 U.S. 75, 85-86 (1988). In this regard, an Anders-based claim of error differs from a claim of

ineffective assistance of counsel based on the failure to raise a particular issue on appeal; the

latter requires a showing that “ ‘the failure to raise that issue was objectively unreasonable, as

well as a reasonable probability that, but for this failure, [the defendant’s] sentence or conviction

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would have been reversed.’ ” People v. Mack, 167 Ill. 2d 525, 532 (1995) (quoting People v.

Caballero, 126 Ill. 2d 248, 270 (1989)).

¶7 Mindful of these principles, we consider defendant’s argument that, in order to function

as an advocate, appellate counsel must either submit an appellate brief or file a motion

complying with Anders and Jones. Defendant contends that, because counsel here did neither,

counsel did not function as an advocate. We disagree with the implied premise of defendant’s

argument: that a motion for summary disposition is a categorically unacceptable substitute for an

appellate brief. Illinois Supreme Court Rule 23(c) (eff. July 1, 2011) authorizes the summary

disposition of appeals without full briefing. That rule provides, in pertinent part, as follows:

“The court may dispose of a case by summary order at any time after the case is

docketed in the Appellate Court. The disposition may provide for dismissal, affirmance,

remand, reversal or any combination thereof as appropriate to the case. A summary order

may be entered after a dispositive issue has been fully briefed, or if the issue has been

raised by motion of a party or by the court, sua sponte, after expiration of the time for

filing a response to the motion or rule to show cause issued by the court.” (Emphasis

added.) Id.

Thus, in an appropriate case, counsel may use such a motion to achieve the full measure of relief

that would be available in a fully briefed appeal. Would counsel in such a case be less of an

advocate simply because he or she pursued summary relief via a motion under Rule 23(c) as

opposed to filing a brief? Clearly, the answer is no.

¶8 We next consider defendant’s argument that, unless counsel complies with Anders and

Jones, he or she must raise some issue bearing on either the adjudication of guilt or the sentence

imposed. Costs are considered a “ ‘collateral consequence’ ” of a conviction and are not punitive.

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People v. Jones, 223 Ill. 2d 569, 581-82 (2006). Thus, in defendant’s view, because the only

error counsel raised on direct appeal related to costs, counsel did not act as an advocate.

Certainly it seems fair to say that counsel does not act as an advocate if he or she raises an issue

pertaining to costs (or some similar “collateral consequence” of a conviction) but neglects to

raise a meritorious issue bearing on the adjudication of guilt or the sentence. But what is counsel

to do if there is no such meritorious issue? Defendant would apparently have counsel withdraw

pursuant to Anders and Jones. That would imply two things: (1) that, despite the existence of a

meritorious issue pertaining to costs, such an appeal is “wholly frivolous” (Anders, 386 U.S. at

744) and (2) that the failure to challenge the adjudication of guilt or the sentence is tantamount to

withdrawing from the appeal and thus requires compliance with Anders and Jones.

¶9 As we understand defendant’s argument, both these propositions seem to flow from the

definition of “judgment” set forth in section 102-14 of the Code of Criminal Procedure of 1963

(the Code) (725 ILCS 5/102-14 (West 2014)). According to section 102-14, “ ‘[j]udgment’

means an adjudication by the court that the defendant is guilty or not guilty and if the

adjudication is that the defendant is guilty it includes the sentence pronounced by the court.” Id.

Defendant’s argument, as we understand it, is that appellate advocacy entails challenging the

“judgment” as defined in this provision and that costs are outside the ambit of the judgment. We

disagree. Section 102-14 makes clear that when there is an adjudication of guilt the judgment

includes the defendant’s sentence. It does not follow, however, that only the sentence is included.

But even if it did, the Code’s definition of “judgment” is applicable “except when a particular

context clearly requires a different meaning.” 725 ILCS 5/102-1 (West 2014). In the relevant

context here, defendant’s interpretation of “judgment” is untenable. Section 124A-5 of the Code

expressly provides that “[w]hen a person is convicted of an offense *** the court shall enter

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judgment that the offender pay the costs of the prosecution.” (Emphasis added.) 725 ILCS

5/124A-5 (West 2014). In this context, “judgment” clearly includes not only the adjudication of

guilt and the sentence pronounced by the court, but the costs of the prosecution as well.

Inasmuch as defendant’s argument rests on the proposition that appellate counsel did not

challenge the judgment—and thus did not act as an advocate—the argument fails.

¶ 10 We thus decline to hold that appellate counsel does not act as an advocate unless he or

she either (1) files a brief challenging the adjudication of guilt or the sentence imposed or

(2) withdraws in accordance with Anders and Jones. In so holding, we reject the idea that raising

only issues unrelated to the adjudication of guilt or the sentence is tantamount to withdrawing

from the appeal. In cases where appellate counsel’s advocacy is nonetheless wanting—i.e.,

where the defendant does not receive the effective assistance of appellate counsel—the defendant

may obtain relief under the Act by filing a postconviction petition (1) identifying a particular

issue that could have been raised on direct appeal, (2) showing that the failure to raise that issue

was objectively unreasonable, and (3) further showing a reasonable probability that, had the

issue been raised, the defendant’s conviction or sentence would have been reversed. See Mack,

167 Ill. 2d at 532; Caballero, 126 Ill. 2d at 270.

¶ 11 Because we reject defendant’s Anders-based claim, we need not consider whether a box

cutter is a “Category II weapon” for purposes of the armed-violence statute (720 ILCS 5/33A­

1(c)(2) (West 2010)). We note that, even if the issue were directly before us, we would likely not

resolve it in defendant’s favor. The statute in question explains that a “Category II weapon”

includes sundry firearms and spring guns, as well as any “knife with a blade of at least 3 inches

in length, dagger, dirk, switchblade knife, stiletto, axe, hatchet, or other deadly or dangerous

weapon or instrument of like character.” (Emphasis added.) Id. As the statute’s residual clause

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indicates, a knife with a blade that is not at least three inches long can still be a deadly weapon.

See People v. Samier, 129 Ill. App. 3d 966, 968-69 (1985). So, too, can a one-inch utility blade.

See People v. Westefer, 169 Ill. App. 3d 59, 62 (1988). The box cutter defendant used was never

recovered, but the statutory definition allows that an ordinary box cutter is just as deadly as any

other knife or switchblade and therefore qualifies as a “Category II weapon.” But more to the

point, defendant’s request that we consider the issue assumes that the asserted Anders violation

(1) occurred and (2) requires that we reopen the judgment on direct appeal to consider new

arguments. Because we conclude that there was no Anders violation, we reject defendant’s

request.

¶ 12 We acknowledge the concerns raised by our dissenting colleague; however, we disagree

with the dissent’s two core premises. First, an attorney cannot be expected to file both a motion

to withdraw and a motion for summary disposition in the same case, as the two are mutually

exclusive. Per Anders and Jones, a motion to withdraw invites the court to discharge appointed

counsel from the burdens of advocacy on counsel’s suggestion that there is no sound legal basis

on which the defendant may seek any relief. A motion for summary disposition, however, is an

attempt by counsel to secure at least some relief on defendant’s behalf, which necessarily is

advocacy.

¶ 13 We also disagree with the dissent’s distinction between “primary” and “collateral”

judgments, or rather the primary and collateral aspects of judgments. The distinction certainly

advances the dissent’s argument, but its overall utility is uncertain, perhaps even problematic.

For example, if we summarily grant cost-only relief at the defendant’s request and do not address

the underlying conviction or sentence, have we failed to dispose of the appeal? Of course not.

We trust that parties, especially represented parties, know what is best for them and how to ask

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for it—and, as we have been repeatedly admonished, it is not our place to interfere with the

attorney-client relationship or to say otherwise. See, e.g., People v. Givens, 237 Ill. 2d 311, 323­

24 (2010) (citing Greenlaw v. United States, 554 U.S. 237, 244 (2008)). Instead, we adhere to

the traditional approach that a judgment is a singular and largely indivisible judicial order. That

is, in our view, just as a “[r]ose is a rose is a rose is a rose” (Gertrude Stein, Sacred Emily, in

Geography and Plays 178, 187 (1922)), a judgment is a judgment is a judgment.

¶ 14 For the foregoing reasons, the judgment of the circuit court of Boone County is affirmed.

As part of our judgment, we grant the State’s request that defendant be assessed $50 as costs for

this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178

(1978).

¶ 15 Affirmed.

¶ 16 JUSTICE McLAREN, specially concurring:

¶ 17 I specially concur because I wish to comment on the dissent.

¶ 18 In paragraph 31, the dissent posits:

“Under the guidance of Evitts, I submit that it is appropriate to review whether an appeal

is wholly frivolous based on whether counsel can raise any nonfrivolous challenge as to

the defendant’s liberty interests; if he cannot, the appeal is wholly frivolous and counsel

must abide the requirements of Anders.” Infra ¶ 31.

The dissent has raised a counterfactual conditional as the foundation for its assertion that a

motion for summary disposition is improper in this case, where a liberty interest in not involved.

The dissent’s assertion that the appeal is wholly frivolous is based upon a distinction regarding

primary and collateral judgments on appeal. See infra ¶ 32. The dissent must acknowledge that

the collateral claim raised in defendant’s motion for summary disposition was not frivolous,

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because, if it was, defendant would not have been given relief on the claim. This disregard of

reality is evident in the dissent’s equating of a no-merit letter with a motion for summary

disposition. A no-merit letter, in the context of Anders, meant no merit in any aspect of a

potential appeal. However, the dissent determines that Anders applies only to the “primary

judgment” that deals in liberty interests. There is nothing in Anders that enunciates or implies

such a distinction. Furthermore, by attempting to make the distinction, the dissent is severing the

collateral issues from the need to be considered in the context of Anders. Following the dissent’s

logic to its rational conclusion, if counsel determines that the “primary judgment” is wholly

frivolous, there is no need to review the collateral issues, as Anders applies only to the primary

judgment and “its liberty interests.”

¶ 19 The dissent concludes in the same paragraph, “Whether the appeal is ‘wholly frivolous’ is

a determination to be made by the court upon counsel’s motion to withdraw.” Infra ¶ 31.

Historically, the motion to withdraw was to be reviewed in the context of the entire record

(“anything in the record that might arguably support the appeal” (emphasis added) (Anders, 386

U.S. at 744)). The dissent would limit review to the record concerning “liberty interests.”

¶ 20 The dissent differentiates between the “primary” and “collateral” components of the

appeal based upon statutes. See infra ¶¶ 32-33. I find it intriguing that those statutes have never

been considered for purposes of an Anders review. Apparently, all these years appellate counsel

have been ineffective for failing to differentiate between primary and collateral aspects of the

judgment. Likewise, apparently this court has been remiss because, in denying prior Anders

motions, we have required counsel to brief the collateral aspects of an appeal.

¶ 21 This differentiation is arbitrary and incomplete and implies that collateral issues are

inconsequential. The dissent never explains why the “collateral judgment” is limited to “only the

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costs and fees assessed after and as a consequence of the judgment of conviction and sentence.”

Infra ¶ 32. There is no statutory definition of “collateral judgment”; the dissent distorts

“Judgment for costs of prosecution” (725 ILCS 5/124A-5 (West 2014)) into “collateral

judgment” and precludes any other collateral issue from its purview, as if no other collateral

issues can arise from a trial court’s judgment. This is not the case. For but one example,

immigration consequences are not direct consequences of a criminal conviction. See People v.

Guzman, 2015 IL 118749 ¶ 25. They are, rather, collateral to the trial court’s judgment.

However, this “collateral” issue is of such importance that “to be constitutionally effective

criminal defense counsel must ‘advise a noncitizen client that pending criminal charges may

carry a risk of adverse immigration consequences’ ” and “noncitizen defendants who do not

receive that advice from criminal defense counsel may be entitled to relief based on counsel’s

ineffective assistance if they can make the requisite showing of prejudice.” Id. ¶ 33. Is this

collateral issue not truly part of the “collateral judgment”? Further, is a challenge to “only” a

collateral issue such as this a denial of a defendant’s constitutional right to a direct appeal if no

Anders brief is filed regarding the “primary appeal”? The dissent (see infra ¶¶ 29, 31) apparently

would say yes.

¶ 22 I submit that this novel approach creates appeals within appeals. According to the dissent,

there is an appeal from the primary judgment and an appeal from the collateral judgment, both

contained in an overarching appeal. This supernumerary appeal, until now, was simply called

“the appeal.” In order to ensure that the supernumerary appeal is resolved, future dispositions

would have to set forth that both primary and collateral issues have been disposed of.

¶ 23 The dissent claims that addressing only collateral issues precludes the court from

considering any challenge to the curtailment of a defendant’s liberty. See infra ¶ 39. I am not

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aware of anything that precludes a defendant from seeking to appear pro se and attempting to

raise any such challenge. The dissent applies Anders in such a manner that collateral issues are

not covered, essentially removing the protection of Anders from portions of a defendant’s right

to a direct appeal.

¶ 24 The dissent submits its ideal resolution to the factual situation here:

“As a final point, I submit that the debate between the majority and the dissent

might have been avoided if appellate counsel, in the unopposed motion for summary

disposition, had averred that defendant agreed to resolve his appeal by a motion for

summary disposition raising only costs and without raising any challenge to his

conviction or sentence—the primary judgment. *** Any defendant may file a motion to

voluntarily dismiss his appeal. And, in the context of a motion for relief only as to a

collateral issue, the defendant’s consent to dispose of the remainder of the appeal without

raising any challenge to the primary judgment is, effectively, a motion to voluntarily

dismiss his appeal of the primary judgment. Alternatively, where the defendant does not

consent to the voluntary dismissal of the appeal as to the primary judgment, counsel is

left to file a motion to withdraw with the accompanying safeguards in Anders and, as an

advocate for his client, the obligation to raise the error in costs through some means.

Based on the record before us, it cannot be determined whether defendant consented to

dispose of the appeal without raising a challenge to the primary judgment.” (Emphasis

omitted.) Infra ¶ 51.

I submit that this suggestion is fraught with problems. First, the statement is an enthymeme: it

assumes that counsel has fully informed the client and that the client has made a fully informed

consent. Second, it assumes that the consent given is given only as to what the dissent has

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characterized as the “primary judgment” rather than the entire appeal. Third, it is an oxymoron:

the defendant is essentially dismissing his appeal while receiving relief from the court. It would

be more accurate to say that the defendant is waiving his right to a direct appeal of all other

possible issues and seeking only the relief requested, regardless of any characterization. And

here is the rub: if the defendant has the authority to do as the dissent proposes, and Anders does

not apply to collateral issues (as the dissent must be read to hold), then counsel could relate what

the dissent has proposed in a motion to withdraw, and there would be no Anders requirement at

all. Counsel could file a motion to dismiss the appeal because counsel has conferred with the

defendant and the defendant has consented to dismissing the appeal. And with that, there is no

appellate review of the advocacy by counsel. With the defendant “effectively dismissing his

appeal,” the Anders requirement may be subverted without any appellate review. According to

the dissent, even a no-merit letter is unnecessary, because the defendant has been informed that

the case regarding the primary judgment lacks merit and the defendant does not object.

¶ 25 Additionally, the dissent leaves unsaid what counsel must disclose to a defendant in such

a situation. If consent is to be meaningful, it must be an informed consent. The dissent would

assist the bar if it would define what information must be conveyed to the defendant in order for

the defendant to make an informed consent to dismiss the remainder of the supernumerary

appeal. The dissent’s proposal is an enthymeme where the premise that is not related, but

presumed, is that the advice of counsel has satisfactorily informed the client. As with Anders

motions, the benefit derived from informing the client is apprising the client of the status of his

case. If the client decides that he wants to represent himself in his “primary” appeal, he may do

so.

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¶ 26 In conclusion, I believe that the dissent’s ratio decidendi is based upon a counterfactual

conditional. Anders was a decision wherein no matters were raised on appeal. The document

filed in Anders was a no-merit letter that stated that there was no issue of merit to raise on

appeal. The document filed in this case was an unopposed motion for summary disposition. The

former sought no relief and asserted that there was no merit to the appeal. The latter sought and

obtained relief on a ground contained in the appeal. The collateral issue, regardless of its nature

and extent, was not “wholly frivolous” and, thus, the supernumerary appeal was not wholly

frivolous. To decide, as the dissent would, that Anders applied here is to redefine the holding in

Anders to say “otherwise wholly frivolous” or “wholly frivolous as to non-collateral matters.”

The dissent would literally bifurcate an appeal and all the underlying orders in support of the

judgment into two classes. It would also relegate collateral issues to some unknown status

beyond the purview of Anders. If that were done, the dissent would effectively change the

definition of an appeal to “review of the primary judgment.” In defining the appeal as relating

only to the “primary judgment,” the dissent would sever advocacy of collateral issues from

appellate review. If a defendant consents to the “dismissal” of an appeal, it would be interesting

to see how collateral issues are ever resolved if there is error or plain error.

¶ 27 JUSTICE JORGENSEN, dissenting:

¶ 28 I agree with the majority that an agreed motion for summary disposition pursuant to Rule

23(c) can be an acceptable, even a preferred, substitute for appellate briefing. Supra ¶ 7. When

proper procedures are followed and safeguards in place, a summary disposition without formal

briefing conserves resources and leads to a prompt resolution of the appeal. In fact, it has been a

customary practice in this district for some time and such use is not what this case is about.

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¶ 29 Rather, the heart of this case is whether counsel fulfills his obligation as effective

appellate counsel where he challenges only a collateral issue. In other words, has a defendant

been denied his constitutional right to a direct appeal where counsel challenges only the

collateral judgment, avers that there are no other issues, thus implying that the appeal is

otherwise wholly frivolous, and does not file an Anders motion? I believe that he has.

¶ 30 In order to satisfy the constitutional right to a direct appeal with effective assistance of

counsel set forth in Evitts v. Lucey, 469 U.S. 387, 403-04 (1985), and in order to satisfy the

advocacy requirements set forth in Anders, counsel must champion at least one nonfrivolous

issue pertaining to the primary judgment, whether by brief or by (agreed) motion, or move to

withdraw pursuant to Anders, thereby securing for his client all of the procedural safeguards that

are inherent in a direct appeal of the primary judgment or that accompany an Anders motion.

¶ 31 There is no dispute that the application of Anders is triggered when counsel believes that

the appeal is “wholly frivolous.” The issue is, “When is an appeal ‘wholly frivolous?’ ” Under

the guidance of Evitts, I submit that it is appropriate to review whether an appeal is wholly

frivolous based on whether counsel can raise any nonfrivolous challenge as to the defendant’s

liberty interests; if he cannot, the appeal is wholly frivolous and counsel must abide the

requirements of Anders. In other words, an appeal is “wholly frivolous” when counsel is unable

to articulate any nonfrivolous issue challenging the defendant’s conviction or sentence. A viable

challenge to erroneously assessed costs does not render an otherwise “wholly frivolous” appeal

meritorious. Challenging only the collateral judgment, whether by brief or by (agreed) motion,

simply does not satisfy the defendant’s right to a direct appeal or counsel’s duties as an advocate.

Whether the appeal is “wholly frivolous” is a determination to be made by the court upon

counsel’s motion to withdraw.

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¶ 32 I agree with the majority that the primary judgment (conviction and sentence (725 ILCS

5/102-14 (West 2014))) and collateral judgment (costs (725 ILCS 5/124A-5 (West 2014))) are

components of the same appealed-from case. I disagree, however, that the appealed-from

judgment cannot or should not be separated into its primary and collateral components in the

context of considering whether the defendant’s rights to a direct appeal and appellate advocacy

have been satisfied. In my view, a direct appeal is a determination of whether the judgment of

conviction and subsequent sentence was entered properly. As described below, the primary

judgment is the judgment of conviction and sentence, as a result of which the defendant’s liberty

has been curtailed. The collateral judgment includes only the costs and fees assessed after and as

a consequence of the judgment of conviction and sentence.

¶ 33 Primary and collateral judgments have been identified and labeled separately by the

legislature and viewed discretely by the courts. These judgments have been given separate

designations: “ ‘Judgment’ ” (725 ILCS 5/102-14 (West 2014)) lies under the heading for article

102, “General Definitions,” and includes the “adjudication by the court that the defendant is

guilty *** [and] the sentence pronounced by the court.” “Judgment for costs of prosecution”

(725 ILCS 5/124A-5 (West 2014)) lies under the heading for article 124A, “Liens and Costs,”

and discusses the costs of prosecution: “[w]hen a person is convicted *** the court shall enter

judgment that the offender pay the costs of the prosecution.” This separation by title and

substance is an indication of the legislature’s intent that the two components of a judgment on

appeal are different types of judgments, entered for different purposes. 725 ILCS 5/102-14,

124A-5 (West 2014).

¶ 34 Primary and collateral judgments have been given different terminology and

characterization by the supreme court, specifically, that a judgment for costs is collateral to, or a

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consequence of, the judgment. Jones, 223 Ill. 2d at 581. Calling a judgment collateral, or

consequential, indicates that the supreme court appreciates the difference between a primary

judgment and its collateral components and has created a practical break between the primary

judgment (conviction and sentence) and the remaining components of the judgment (fees and

costs).

¶ 35 There is also a rudimentary difference here that cannot be overemphasized. Conceptually,

the primary judgment is of a markedly different character than the collateral judgment, both at

trial and on review. At trial, the primary judgment is reached following deliberation of facts and

application of law by judge or jury, followed by further deliberation and the imposition of

sentence. The collateral judgment is entered automatically, imposed by rote checking of

prescribed boxes on a form, and in this context is limited to court costs and fees. Costs and fees

represent the State’s attempt to recoup the expenses of the prosecution as opposed to the penal

nature of a fine. Id. at 582. On review, counsel’s assessment of the former requires reading the

entire record and analyzing complex legal considerations; counsel’s assessment of the latter

requires little more than reading a few pages of the record and engaging in a basic accounting

exercise.

¶ 36 The primary and collateral judgments not only can, but should, be considered separately

when examining whether a defendant’s rights to a direct appeal and appellate advocacy have

been satisfied. The primary judgment implicates a defendant’s liberty interests, and the collateral

judgment does not. There is a conscience-shocking disparity between the liberty interests

implicated by a judgment of conviction and sentence of years in the Illinois Department of

Corrections versus a judgment for costs (again, if a judgment for costs can be said to implicate

liberty interests at all). At issue here, for example, is a Class X conviction of armed violence and

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a 10-year sentence to the Department of Corrections versus less than a $200 overpayment in

costs. A meritorious issue challenging the conviction or sentence addresses defendant’s liberty

interests and is of far more import than reckoning the ledger of costs.

¶ 37 Defendant is entitled to a review of the propriety of his conviction and sentence. In other

words, defendant is entitled to a review of the deprivation of his liberty interests, not merely his

debt for costs. “In establishing a system of appeal as of right [with effective assistance of

counsel], the State had implicitly determined that it was unwilling to curtail drastically a

defendant’s liberty unless a second judicial decision maker, the appellate court, was convinced

that the conviction was in accord with law.” (Emphases added.) Evitts, 469 U.S. at 403-04. This

sentence contains two important points: (1) a defendant’s right to a direct appeal with effective

assistance of counsel derives from the curtailment of his liberty and (2) the court, not counsel,

must decide on direct appeal whether the defendant’s liberty was rightfully curtailed. Indeed,

process requirements generally develop to guard against the wrongful deprivation of a right.

¶ 38 The procedure sanctioned by the majority subverts the Evitts policy underlying the right

to a direct appeal, specifically, that a second judicial decision-maker review whether the

curtailment of a defendant’s liberty was proper. Where counsel challenges only the collateral

judgment, he precludes the court from considering on direct appeal any challenge to the

curtailment of the defendant’s liberty. Here, for example, counsel challenged only the collateral

judgment, arguing an improper assessment of court costs. Counsel further stated in his

unopposed motion for summary disposition that “[u]ndersigned counsel has read the complete

record and he has found no other issues to raise on appeal.” Properly declining to act as an

advocate, this court reviewed only the collateral judgment to the exclusion of the primary or

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liberty-interest judgment. The flaw, as raised by defendant’s petition, is that under this process

this court has never reviewed any issue regarding defendant’s primary judgment.

¶ 39 Under our current procedure, this court accepted counsel’s conclusory statement that

there were no other issues to raise, which, taken at face value, meant that counsel had identified

no “nonfrivolous” issues regarding the primary judgment. In such a circumstance, the appeal as

to defendant’s liberty interests was, according to counsel, “wholly frivolous.” In a manner

analogous to the patently ineffective no-merit letter, counsel, not the court, determined that

defendant’s liberty was rightfully curtailed and that defendant was entitled to no further review

of his conviction or sentence. Counsel’s summary resolution of the appeal precluded the court

from considering on direct appeal any challenge to the curtailment of defendant’s liberty. In

contrast, requiring counsel to raise at least one challenge against the primary judgment, or move

to withdraw pursuant to Anders, ensures that a second judicial decision-maker, this court, will

review on direct appeal the curtailment of a defendant’s liberty. To hold otherwise is arguably to

follow the letter of the law but stands the spirit of the law on its ear.

¶ 40 The procedure approved by the majority also subverts the policy underlying Anders,

specifically that defendants receive effective appellate advocacy. Anders, 386 U.S. at 744-45.

Submitting an Anders motion is an act of advocacy. Id. Consider the appeals of two defendants

for whom there are no nonfrivolous issues regarding their liberty interests. The only difference

between them is that one was erroneously assessed costs. Under the majority position, the

defendant who has been assessed the correct costs, in other words who has no issues regarding

the collateral judgment, is given the benefit of the Anders procedure before counsel may

withdraw. In that case, the court, not counsel, will ultimately determine whether the appeal is

wholly frivolous and whether the motion to withdraw should be granted. The similarly-situated

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defendant who has been assessed erroneous costs, an easily-correctable overcharge, does not

receive the benefit of the Anders procedure. Rather, counsel may summarily aver that the

defendant is entitled to a correction of costs and that there are no nonfrivolous issues to be raised

challenging the primary judgment. This is no better than the no-merit letter outlawed in Anders.

¶ 41 Counsel secures significant procedural safeguards for his client when he moves to

withdraw pursuant to Anders. I name just a few of those safeguards: (1) the guarantee that a

“court—not counsel” will decide whether there are no nonfrivolous challenges to be made on

direct appeal against the judgment (id. at 744), which, pursuant to Evitts, in this context means

the primary judgment; (2) demonstrative evidence, presented to the court, that an attorney

thoroughly reviewed the record and understood the applicable law before he or she moved to

withdraw (see In re Brazelton, 237 Ill. App. 3d 269, 271 (1992) (the court denied an Anders

motion that demonstrated a superficial review of the record and a misunderstanding of the

applicable law); In re Alexa J., 345 Ill. App. 3d 985, 990 (2003) (where an attorney files an

inadequate Anders brief, the remedy is not to deny the Anders motion, but for the attorney to

rethink his position and either amend the Anders motion or file an appellate brief)); (3) notice of

counsel’s motion to withdraw and the basis thereof, together with the opportunity for the

defendant to object to the attorney’s position or move to proceed pro se; (4) the opportunity for

the defendant and the court to benefit from the attorney’s discussion of the case, which may aid

the defendant and the court in identifying a nonfrivolous issue (see Brazelton, 237 Ill. App. 3d at

272 (the defendant should have the benefit of a detailed memorandum that discusses all aspects

of the case with citation to correct law before objecting to the motion to withdraw or moving to

proceed pro se, and the court should have the benefit of legal argument before determining the

frivolity of potential claims)); and (5) the opportunity for timely access to justice and procedure,

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in other words, a review of the deprivation of the defendant’s liberty interests in the first

instance—on direct appeal.

¶ 42 It is worthy of note that this court does deny Anders motions where we disagree with

counsel’s assessment of “wholly frivolous.” It is troubling here that, where counsel did not place

a single issue regarding conviction and sentence before us, we are left to conclude on faith,

without more, that counsel understood the issues and the law and correctly concluded that the

appeal was wholly frivolous. By accepting counsel’s bald averment that there were no other

issues, we have failed to be the second judicial decision-maker to review the deprivation of

defendant’s liberty interests.

¶ 43 It is my position that, because counsel here violated Anders, there is no room to discuss

alternative procedures that may occur after the court’s disposition of the direct appeal. It is

disingenuous to suggest that, “even if counsel violated Anders, there are sufficient procedural

safeguards against the wrongful deprivation of defendant’s liberty available at later stages.”

Defendant had the right to a review of the deprivation of his liberty in the first instance, on direct

review. No subsequent procedure can ameliorate the denial of that right.

¶ 44 In contrast, the majority posits that counsel did not violate Anders, that defendant, who

was credited for the cost overage, received adequate resolution of his appeal, and that, if an issue

was missed by counsel and thus not reviewed by the court, procedural safeguards available at

later stages suffice.

¶ 45 I disagree and, in response, address the inadequacy of requiring a defendant to rely on

postconviction proceedings for the opportunity to raise his first challenge to the primary

judgment, as proposed by the majority (supra ¶ 10). That a defendant would have to fend entirely

for himself to craft a challenge to the primary judgment and wait years to do so makes a

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postconviction proceeding a poor safeguard against the wrongful deprivation of the defendant’s

liberty. In stark contrast to the benefit of the Anders procedure, no appellate court reviews any

aspect of the primary judgment, leaving the defendant with a broad, and likely overwhelming, set

of issues to consider. The defendant is not assured, in the form of a detailed memo, that an

attorney reviewed his conviction and sentence with an appropriate level of knowledge and

understanding of the law. The defendant must identify potential issues to initiate a postconviction

proceeding without the help of such a memo. Further, in this postappeal posture, he has the

additional obstacle of proving ineffective assistance of appellate counsel, making the avenue to

relief all the more arduous. Finally, and perhaps most compelling, assuming that the defendant

gets to stage two of postconviction proceedings, the defendant is entitled only to reasonable

assistance of counsel, not the higher level of advocacy—effective assistance—which he should

have enjoyed on direct appeal. In short, his access to justice and process is delayed, he is hobbled

by the lack of appellate review, he is at a distinct disadvantage with at most only reasonable

assistance of counsel in bringing for the first time any claim of error in his conviction and

sentence, and, if his argument is winning, he has lost years of his life in prison.

¶ 46 Reliance on a pro se petition for rehearing as an adequate guard against the wrongful

deprivation of a defendant’s liberty interests is equally misguided. This procedure also violates

the Anders dictate that a defendant should not shift for himself against the judgment, which, per

Evitts, in this context means the primary judgment. It is unlikely, if not impossible, that a

defendant, not given an invitation to challenge his attorney as in the Anders procedure, would

have the wherewithal to swiftly take such a creative approach. We cannot expect a defendant to

scour the record and craft, from inception, his own challenge to the primary judgment within 21

days.

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¶ 47 Further support for my position is found in what is required to prove ineffective

assistance of appellate counsel: “[a] defendant who contends that appellate counsel rendered

ineffective assistance, e.g., by failing to argue an issue, must show that the failure to raise that

issue was objectively unreasonable and that, but for this failure, defendant’s conviction or

sentence would have been reversed.” (Emphasis added.) People v. Richardson, 189 Ill. 2d 401,

412 (2000). This standard, turning on counsel’s handling of challenges to the conviction and

sentence, leads to the inescapable conclusion that counsel’s handling of costs cannot

conclusively establish the constitutional sufficiency of his advocacy. Counsel cannot fulfill his

constitutional duty to advocate for his client by challenging only costs; he must challenge the

primary judgment with an appellate brief or a motion for summary disposition or move to

withdraw pursuant to Anders.

¶ 48 I realize that in some cases this position might place an additional obligation on appellate

counsel. Counsel who notices an error as to costs, the collateral judgment, but believes that the

appeal is otherwise wholly frivolous will have to both (1) pursue a remedy as to costs,

presumably by an agreed motion, and (2) move to withdraw pursuant to Anders. I stress that the

extra burden here is the agreed motion concerning costs, not the Anders motion. Again, in my

view, the court, not counsel, must review the curtailment of the defendant’s liberty (Evitts), and

the defendant is not to shift entirely for himself in raising a challenge to the curtailment of his

liberty (Anders). This requires in every case the filing of one of three alternatives that address

the primary judgment—the defendant’s liberty interests: (1) a brief, (2) a motion for summary

disposition, or (3) an Anders motion. The extra burden of raising an easily-correctable collateral

error as to costs is a small one.

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¶ 49 In my view, the majority does not offer a satisfactory explanation as to why the primary

and collateral judgments must be treated as parts of an indivisible whole when considering

whether an appeal is wholly frivolous or whether appellate counsel fulfilled his duties as an

advocate. I infer that the majority’s concern lies in preserving the distinction between

noncompliance with Anders and a Strickland ineffective-assistance claim based on failure to

raise a meritorious issue. Supra ¶ 6. In fact, I agree with this distinction. We require counsel to

raise at least one nonfrivolous issue or file an Anders motion. We do not usurp counsel’s role to

choose which issues to raise. We do not proactively review the issues that counsel could have

raised. The majority creates a firm cutoff: so long as counsel champions at least one nonfrivolous

issue pertaining to either the primary or the collateral judgment, counsel need not file an Anders

motion and the court does not review the case for other issues of potential merit. If counsel

misses an issue of merit, then the defendant has a postconviction ineffective-assistance claim. I,

too, would create a firm cutoff: so long as counsel champions at least one nonfrivolous issue

pertaining to the primary judgment, that is at least one nonfrivolous issue other than costs and

fees, counsel need not file an Anders motion and the court does not review the case for other

issues of potential merit. If counsel misses an issue of merit, then the defendant has a

postconviction ineffective-assistance claim. Both approaches preserve the distinction between

noncompliance with Anders and a standard ineffective-assistance claim. However, only my

approach satisfies the Evitts policy that the court, not counsel, consider on direct appeal a

challenge to the curtailment of the defendant’s liberty.

¶ 50 In sum, I would review whether an appeal is wholly frivolous based on whether counsel

can raise a nonfrivolous challenge as to the defendant’s liberty interests; if he cannot, the appeal

is wholly frivolous and counsel must abide the requirements of Anders. This remains steadfast

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regardless whether there is an error in the judgment for fees and costs. Again, an error in costs

does not transform an otherwise wholly frivolous appeal into one in which a meritorious claim

exists under Evitts.

¶ 51 As a final point, I submit that the debate between the majority and the dissent might have

been avoided if appellate counsel, in the unopposed motion for summary disposition, had averred

that defendant agreed to resolve his appeal by a motion for summary disposition raising only

costs and without raising any challenge to his conviction or sentence—the primary judgment.

The defendant’s agreement is his consent to forgo a challenge to the deprivation of his liberty in

his direct appeal, not to the resolution of the collateral matter set forth in the motion for summary

disposition. Any defendant may file a motion to voluntarily dismiss his appeal. And, in the

context of a motion for relief only as to a collateral issue, the defendant’s consent to dispose of

the remainder of the appeal without raising any challenge to the primary judgment is, effectively,

a motion to voluntarily dismiss his appeal of the primary judgment. Alternatively, where the

defendant does not consent to the voluntary dismissal of the appeal as to the primary judgment,

counsel is left to file a motion to withdraw with the accompanying safeguards in Anders and, as

an advocate for his client, the obligation to raise the error in costs through some means. Based on

the record before us, it cannot be determined whether defendant consented to dispose of the

appeal without raising a challenge to the primary judgment.

¶ 52 I note that such language has recently been included in similar motions for summary

disposition. In People v. Lambert, No. 2-15-0925, counsel filed an unopposed motion for

summary disposition, seeking only the removal of a fee for a second DNA sample and stating

that “[c]ounsel has spoken to the defendant, and he has agreed to dispose of his appeal in this

summary motion without filing a brief [or motion] raising any other issues.” (Emphasis added.)

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This is a proper procedure. The portion of the unopposed motion for summary disposition

addressing the DNA fee, the collateral judgment, is resolved while this court retains jurisdiction.

The balance of the motion is, in effect, a motion to voluntarily dismiss the appeal as to the

primary judgment, which, if granted, ultimately divests this court of jurisdiction.

¶ 53 I briefly address the criticisms against my dissent. The majority states: “First, an attorney

cannot be expected to file both a motion to withdraw [as counsel] and a motion for summary

disposition in the same case, as the two are mutually exclusive.” (Emphasis added.) Supra ¶ 12.

The majority unfairly imposes a premise inconsistent with my position to attack the logic of my

position. Again, I believe that the case can be considered in two parts, primary and collateral, for

the limited purpose of evaluating a defendant’s right to a direct appeal and advocacy. Therefore,

under my view of the case, it is not illogical for an attorney to file a motion for summary

disposition as to the collateral judgment and a motion to withdraw as counsel as to the primary

judgment.

¶ 54 The special concurrence criticizes the practical break between primary and collateral

judgments, i.e., between the aspects of the judgment that implicate a defendant’s liberty interests

and those that reflect rote bookkeeping actions. Supra ¶ 21. It notes that some collateral matters,

such as immigration status, implicate a defendant’s constitutional rights. Supra ¶ 21. This point

is outside the scope of our present debate concerning de minimis costs. Future courts will have to

decide whether an issue, even if referred to as collateral, can satisfy an attorney’s duty to raise at

least one challenge to the deprivation of the defendant’s liberty. (Unlike a judgment for costs, a

defendant’s immigration status does implicate a liberty interest. Also unlike a judgment for costs,

it is not guaranteed to be noted in the trial record. Whether the issue may be challenged on direct

appeal, or in postconviction proceedings, depends on the trial record.)

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¶ 55 The special concurrence also criticizes the alternative solution set forth in paragraph 51.

Supra ¶¶ 24-25. I want to place in context that this is an alternative solution. Again, any

defendant may file a motion to voluntarily dismiss an appeal.

¶ 56 For the reasons stated, I would conclude that defendant has made a substantial showing

of a constitutional deprivation, reverse the second-stage dismissal, and remand for further

proceedings.

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