People v. DeBerry ( 2007 )


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  •                            NO. 4-06-0543           Filed 5/4/07
    IN THE APPELLATE COURT
    OF ILLINOIS
    FOURTH DISTRICT
    THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
    Plaintiff-Appellee,          )    Circuit Court of
    v.                           )    Macon County
    JAMES T. DeBERRY,                      )    No. 96CF1460
    Defendant-Appellant.         )
    )    Honorable
    )    Theodore E. Paine,
    )    Judge Presiding.
    _________________________________________________________________
    PRESIDING JUSTICE STEIGMANN delivered the opinion of
    the court:
    In May 1997, a jury convicted defendant, James T.
    DeBerry, of attempt (first degree murder) (720 ILCS 5/8-4(a), 9-
    1(a)(1) (West 1996)) and home invasion (720 ILCS 5/12-11 (West
    1996)).   The trial court later sentenced him to 20 years in
    prison on each conviction, with those sentences to be served
    concurrently.
    In January 2000, defendant filed a petition under the
    Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-8 (West
    2000)), which the trial court dismissed in February 2000.   In May
    2003, defendant filed a second postconviction petition, and in
    March 2006, defendant amended it.   In May 2006, the court granted
    the State's motion to dismiss defendant's amended petition.
    Defendant appeals, arguing that the trial court erred
    by dismissing his March 2006 amended postconviction petition.     We
    disagree and affirm.
    I. BACKGROUND
    At defendant's June 1997 sentencing hearing, the trial
    court imposed concurrent 20-year prison sentences upon defendant
    and directed that the truth-in-sentencing provision of the
    Unified Code of Corrections (730 ILCS 5/3-6-3(a)(2)(ii) (West
    1996)) applied to him.   Defendant appealed, and this court
    affirmed and remanded with directions that the trial court amend
    the sentencing order to reflect that defendant was entitled to
    day-for-day credit on his sentences because the truth-in-sentenc-
    ing provision was unconstitutional.     People v. DeBerry, No. 4-97-
    0532 (May 10, 1999) (unpublished order under Supreme Court Rule
    23).
    Defendant filed his initial postconviction petition in
    January 2000, and the trial court dismissed it in February 2000.
    Defendant did not appeal that dismissal.
    In May 2003, defendant filed his second postconviction
    petition, and the trial court appointed counsel to represent him.
    In August 2004, the State filed a motion to dismiss defendant's
    second petition.   In response, defendant filed a motion in May
    2005 for an extension of time to file an amended postconviction
    petition.   The State did not object, and in March 2006, defendant
    filed his amended petition.
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    In April 2006, the State filed its amended motion to
    dismiss defendant's successive postconviction petition.    In May
    2006, the trial court dismissed defendant's petition.
    This appeal followed.
    II. DEFENDANT'S FAILURE TO COMPLY WITH
    SECTION 121-1(f) OF THE ACT
    Defendant argues that the trial court erred by dismiss-
    ing his March 2006 amended postconviction petition.    In so
    arguing, defendant concedes that (1) the amended petition consti-
    tuted his second postconviction petition and (2) it was untimely
    because it was filed well outside the time periods specified in
    section 122-1(c) of the Act (725 ILCS 5/122-1(c) (West 2004)).
    Nonetheless, he contends that these procedural hurdles did not
    justify the court's dismissal of his amended petition because (1)
    he purports to be advancing a claim of actual innocence (see
    section 122-1(c) of the Act) and (2) his delay in filing the
    petition was not due to his culpable negligence.   We disagree.
    A. Standard of Review
    The standard of review for a dismissal of a
    postconviction petition after counsel has been appointed and
    given an opportunity to amend a defendant's pro se petition is de
    novo.   People v. Whitfield, 
    217 Ill. 2d 177
    , 182, 
    840 N.E.2d 658
    ,
    662 (2005).
    When reviewing a trial court's dismissal of a
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    postconviction petition, we agree with the views expressed by the
    First District Appellate Court in People v. Lee, 
    344 Ill. App. 3d 851
    , 853, 
    801 N.E.2d 969
    , 972 (2003), that although the trial
    court's reasons for dismissing a petition may provide assistance
    to this court, we review the trial court's judgment and not the
    reasons given for that judgment.   Thus, we will affirm the trial
    court on any basis supported by the record even if the trial
    court did not mention its reasons or reasoned incorrectly.    See
    also People v. Sawczenko, 
    328 Ill. App. 3d 888
    , 897, 
    767 N.E.2d 519
    , 527 (2002) (a reviewing court may affirm the dismissal of a
    postconviction petition for any reason warranted by the record,
    regardless of the reasons stated by the lower court).
    B. The Application of Section 122-1(f) of the Act to This Case
    In describing the procedural history of this case, we
    have intentionally chosen not to discuss (1) the substance of the
    claims set forth in defendant's March 2006 amended postconviction
    petition, (2) the reasons advanced by the State for why that
    petition should be dismissed, or (3) the reasons given by the
    trial court for doing so.   We omitted those topics because none
    of them matters.
    Instead, the trial court properly dismissed defendant's
    amended petition because he failed to comply with section 122-
    1(f) of the Act (725 ILCS 5/122-1(f) (West 2004)), which sets
    forth a procedural hurdle for a defendant seeking to file a
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    second or successive postconviction petition.    Subsection (f),
    which the legislature added to the Act on January 1, 2004, reads
    as follows:
    "(f) Only one petition may be filed by a
    petitioner under this [a]rticle without leave
    of the court.    Leave of court may be granted
    only if a petitioner demonstrates cause for
    his or her failure to bring the claim in his
    or her initial post[]conviction proceedings
    and prejudice results from that failure.    For
    purposes of this subsection (f):    (1) a pris-
    oner shows cause by identifying an objective
    factor that impeded his or her ability to
    raise a specific claim during his or her
    initial post[]conviction proceedings; and (2)
    a prisoner shows prejudice by demonstrating
    that the claim not raised during his or her
    initial post[]conviction proceedings so in-
    fected the trial that the resulting convic-
    tion or sentence violated due process."    725
    ILCS 5/122-1(f) (West 2004).
    In People v. Brockman, 
    363 Ill. App. 3d 679
    , 688-89,
    
    843 N.E.2d 407
    , 415 (2006), the court discussed section 122-1(f)
    and wrote the following:
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    "The Act contemplates the filing of only one
    postconviction petition, and the General
    Assembly's purpose in enacting this statute
    [(section 122-1(f))] was an attempt to limit
    a defendant from filing frivolous petitions.
    Accordingly, we find the trial court could
    have properly dismissed defendant's succes-
    sive postconviction petition on the basis
    that defendant had failed to obtain leave of
    the court before filing the petition."
    Although we agree with the above, we note that the Fifth District
    in Brockman also wrote the following:    "[Section 122-1(f)] does
    not specifically state that a defendant must obtain leave of the
    court before filing a successive petition, but that is the
    implication of the statute."    (Emphasis in original.)    
    Brockman, 363 Ill. App. 3d at 688
    , 843 N.E.2d at 415.    We take the Brockman
    decision one step further and now hold that section 122-1(f)
    unequivocally requires that a defendant must obtain leave of
    court before filing a successive petition, and if a defendant
    fails to do so, the court, whether sua sponte or on the State's
    motion, should dismiss any such petition.    In taking this action,
    the court need not--and should not--concern itself with the
    merits of any claims, contentions, or arguments that the petition
    contains.    Section 122-1(f) constitutes a procedural hurdle to
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    any such consideration that the legislature has intentionally
    chosen to impose regarding such petitions.     See also People v.
    LaPointe, 
    365 Ill. App. 3d 914
    , 921, 
    850 N.E.2d 893
    , 899 (2006)
    ("Until the trial court grants such leave [to a defendant under
    section 122-1(f) of the Act], a second or subsequent petition is
    not properly on file and may not be considered on its merits.       To
    hold otherwise would be to treat section 122-1(f) as though it
    did not exist").
    Just as trial courts should not consider anything
    contained within a postconviction petition that violates section
    122-1(f) of the Act, courts of review should be so limited as
    well.   Accordingly, when, as here, we are reviewing the dismissal
    of defendant's postconviction petition and we conclude that
    section 122-1(f) has been violated, we have nothing further to
    discuss or review.      That conclusion trumps anything that defen-
    dant's petition may contain.
    III. CONCLUSION
    For the reasons stated, we affirm the trial court's
    judgment.
    Affirmed.
    KNECHT, J., concurs.
    COOK, J., dissents.
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    JUSTICE COOK, dissenting:
    I respectfully dissent.   The trial court effectively
    granted defendant leave to file the petition when it went ahead
    and heard it.   See Fischer v. Senior Living Properties, L.L.C.,
    
    329 Ill. App. 3d 551
    , 
    771 N.E.2d 505
    (2002).   Also, the second
    postconviction petition was filed in May 2003.   Section 122-1 was
    not amended to add subsection (f) until January 2004.   725 ILCS
    122-1(f) (West 2004).
    An appellate court may affirm on the basis of an issue
    not raised in the trial court, but we should be careful in doing
    - 8 -
    so.   "[T]he appellate court should not consider different theo-
    ries or new questions not raised in the trial court if they might
    have been refuted or overcome had they been presented below."
    Geaslen v. Berkson, Gorov & Levin, Ltd., 
    155 Ill. 2d 223
    , 230,
    
    613 N.E.2d 702
    , 705 (1993).    "[T]he appellate court should take
    care that litigants are not deprived of an opportunity to present
    argument."   
    Geaslen, 155 Ill. 2d at 230
    , 613 N.E.2d at 705.    The
    State gains an advantage by raising these issues for the first
    time in the reviewing court.   If the State had raised the issue
    in the trial court, the trial court may have granted leave to
    file the petition or allowed it to be amended.
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