People v. McDonald ( 2007 )

SECOND DIVISION
May 29, 2007
No. 1-04-0320
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
HARRY MCDONALD, ) Honorable
) Stanley J. Sacks,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
Defendant Harry McDonald appeals the summary dismissal of
his pro se petition for relief under the Post-Conviction Hearing
Act (Act) (725 ILCS 5/122-1 et seq. (West 2002)). Defendant
contends the circuit court erroneously dismissed his petition on
the grounds that the petition failed to assert it was filed under
section 122-1 of the Act. That is, failed to use the section
number. Defendant also contends the circuit court clerk’s
failure to “promptly” docket his petition, as required by the
Act, precluded the circuit court from summarily dismissing the
petition. We reverse and remand.
FACTS
On June 21, 2002, defendant filed a pro se post-conviction
petition with Dorothy Brown, Clerk of the Circuit Court for Cook
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County. At the top of pages one, two, and three were the words:
“Ill. Post-Conviction Petition.” The words “Post-Conviction
Petition” were at the top of pages four, five, six, seven, and
eight. The Appendix to the petition was headed “Illinois Post-
Conviction Petition.” In the body of the one-page Appendix were
references to “725 ILCS 5/122-6,” “122-4,” and “122-5&6.”
The petition was stamped “Received” by the clerk’s office on
June 28, 2002. No further action was taken on the petition. On
July 1, 2003, defendant filed a federal lawsuit seeking to compel
action on his petition. The petition finally was docketed on
October 30, 2003. After the petition was docketed, defendant’s
federal action was dismissed as moot.
On November 14, 2003, the circuit court, relying on section
122-1(d) of the Act, summarily dismissed defendant’s petition.
The court found defendant failed to specify his petition had been
filed under the section pertaining to the Act, holding:
“As I said before, on June 28th, he filed a
stack of documents which are basically
illegible, incomprehensible, hardly
understandable at all and the clerk’s office
sent them –- kept these documents, whatever
they are until they sent them up to the
courtroom within the last few weeks. After
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reviewing the documents in consideration, as
I said before, 5 slash 122 dash 1 D, whatever
he filed is dismissed. Defendant to be
notified.”
The circuit court did not discuss the petition’s merits or lack
of them. Nor did it use the words “frivolous” or “merit.”
On January 31, 2005, defendant filed a motion for summary
remand in this court, contending the circuit court failed to
enter its order within 90 days of the filing and docketing of the
petition. Defendant also contended the circuit court erred in
finding he failed to properly designate his pleading as a post-
conviction petition in a way required by section 122-1(d) of the
Act. We granted defendant’s motion on March 4, 2005. On
September 27, 2006, our supreme court entered a supervisory order
directing us to vacate the summary remand and consider the appeal
in light of People v. Brooks, 221 Ill. 2d 381, 851 N.E.2d 59(2006). We vacated our order and set a briefing schedule.
DECISION
I. Section 122-1(d)’s pleading requirement
Defendant contends the trial court erred in summarily
dismissing his petition under section 122-1(d) of the Act.
Defendant contends the captions “Ill. Post-Conviction Petition”
and “Post-Conviction Petition” written across the pages of the
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pleading and the express citations to the Act contained in the
Appendix to the petition established compliance with section 122-
1(d).
The issue before us requires us to interpret the statute, a
question of law we review de novo. People v. Donoho, 204 Ill. 2d
159, 172, 788 N.E.2d 707 (2003). Our primary goal in
interpreting a statute is to give effect to the intent of the
legislature. People v. Phelps, 221 Ill. 2d 1, 15, 809 N.E.2d
1201 (2003). The most reliable indication of legislative intent
is the language of the statute, given its plain and ordinary
meaning. Phelps, 221 Ill. 2d at 15. "We will not depart from
the plain language of the statute by reading into it exceptions,
limitations, or conditions that conflict with the express
legislative intent." People v. Blair, 215 Ill. 2d 427, 443, 831
N.E.2d 604 (2005).
Section 122-1(d) provides:
“A person seeking relief by filing a petition
under this Section must specify in the
petition or its heading that it is filed
under this Section. A trial court that has
received a petition complaining of a
conviction or sentence that fails to specify
in the petition or its heading that it is
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filed under this Section need not evaluate
the petition to determine whether it could
otherwise have stated some grounds for relief
under this Article.” 725 ILCS 5/122-1(d)
(West 2002).
The controversy in this case arises from the legislature’s
use of the word “Section.” The State contends the word section
never is used in the Post-Conviction Act to describe the Act in
its entirety, indicating the legislature’s use of the word means
a post-conviction petition must expressly state it is filed under
section 122-1 of the Act. The State contends defendant failed to
meet this plainly-stated requirement.
The long-held view is that the Act must be " ‘liberally
construed to afford a convicted person an opportunity to present
questions of deprivation of constitutional rights.’ " People v.
Paleologos, 345 Ill. App. 3d 700, 708, 803 N.E.2d 108 (2003),
quoting People v. Correa, 108 Ill. 2d 541, 546, 485 N.E.2d 307(1985). To survive summary dismissal, a post-conviction petition
need only present the gist of a constitutional claim. People v.
Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102 (1996). This is
intended to be a low threshold and a defendant need only present
a limited amount of detail. Gaultney, 174 Ill. 2d at 418. "At
this stage, a defendant need not make legal arguments or cite to
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legal authority." Gaultney, 174 Ill. 2d at 418.
In People v. Purnell, 356 Ill. App. 3d 524, 528-29, 825
N.E.2d 1234 (2005), the court held that "[b]ecause [defendant’s]
petition did not indicate in any way that he sought relief under
the Act, under the plain meaning of section 122-1(d), the trial
court was not required to treat his petition as a postconviction
petition." (Emphasis added.) Purnell did not hold the section
number of the Act had to be on the petition. The holding in
Purnell is broad enough to authorize acceptance of the
defendant’s petition in this case.
In People v. Holliday, 369 Ill. App. 3d 678, 681, __ N.E.2d
__ (2007), the court held the legislature’s intent in enacting
section 122-1(d) seemed clear: "The legislature wished to undo
the line of Illinois cases (including Sturgeon) holding that a
trial court was required to recharacterize a defendant’s pleading
as a postconviction petition if such recharacterization could
fairly be done based upon the contents of the pleading, even
though the pleading made no reference to the Act." Holliday, 369
Ill. App. 3d at 681.
In People v. Edwards, 197 Ill. 2d 239, 245, 757 N.E.2d 442(2001), the supreme court considered whether, under the "gist"
standard, a pro se defendant must "plead sufficient facts from
which the trial court could find a valid claim of deprivation of
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a constitutional right." (Emphasis in original.) The court held
the "sufficient facts" test imposed too heavy a burden on the pro
se defendant. Edwards, 197 Ill. 2d at 245. "While in a given
case the pro se defendant may be aware of all the facts
pertaining to his claim, he will, in all likelihood, be unaware
of the precise legal basis for his claim or all the legal
elements of that claim." Edwards, 197 Ill. 2d at 245.
In this case, defendant made it clear his petition was
intended to be a post-conviction petition when he wrote "Ill.
Post-Conviction Petition" or “Post-Conviction Petition” at the
top of every page. Similar to rejection of the "sufficient
facts" test in Edwards, we find requiring a defendant to
specifically cite section 122-1 of the Act by number in his
petition in order to satisfy section 122-1(d)’s pleading
requirements would undermine the intent of the legislature to
provide a "low threshold" during the first stage of a post-
conviction proceeding. The State’s interpretation of section
122-1(d) would impose "too heavy a burden on a pro se defendant."
See Edwards, 197 Ill. 2d at 245. Requiring a pro se defendant to
expressly cite section 122-1, rather than simply refer to the Act
itself, would not advance the legislature’s intent when it
adopted section 122-1(d)--to eliminate the need to recharacterize
a pleading as a post-conviction petition even though the pleading
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made no reference to the Act itself. See Holliday, 369 Ill. App.
3d at 681.
In support of our conclusion, we note all post-conviction
petitions are necessarily filed under section 122-1 of the Act.
See 725 ILCS 5/122-1 (West 2002). There is no other way to do
it. A pro se defendant’s notation in the heading that a petition
is an Illinois post-conviction petition adequately informs the
circuit court that the petition is being filed pursuant to
section 122-1 of the Act.
The language of section 122-1(d) of the Act does not
persuade us the legislature intended petitioners to specifically
cite section 122-1 in their petitions. Accordingly, we find the
trial court erred in summarily dismissing defendant’s petition
under section 122-1(d).
II. Nature of remand
Our conclusion that the trial court erred when it dismissed
the petition for failure to cite section 122-1 by number entitles
the defendant to reversal and remand. The question then becomes
whether we remand this case for a stage-one or a stage-two
proceeding under the Act.
The Act provides a three-stage process for the adjudication
of post-conviction petitions. People v. Boclair, 202 Ill. 2d 89,
99, 789 N.E.2d 734 (2002). In the first stage, the circuit court
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considers whether the petition is “frivolous or patently without
merit.” See 725 ILCS 5/122-2.1(a)(2) (West 2002); Boclair, 202
Ill. 2d at 99. If the petition is not dismissed pursuant to
section 122-2.1, the petition advances to stage two. The circuit
court must then appoint legal counsel to represent an indigent
defendant; counsel will have an opportunity to amend the
petition. See 725 ILCS 5/122-4 et seq. (West 2002); Boclair, 202
Ill. 2d at 99. If the petition is not dismissed at stage two, it
proceeds to stage three where the circuit court conducts an
evidentiary hearing. See 725 ILCS 5/122-6 (West 2002); People v.
Makiel, 358 Ill. App. 3d 102, 104, 830 N.E.2d 731 (2005).
Even if we take the October 30, 2003, docketing date as our
starting point, the circuit court did not dismiss the petition as
“frivolous or patently without merit” within 90 days of
docketing, as required by section 122-2.1(a). See 725 ILCS
5/122-2.1(a) (West 2002). Instead, the circuit court summarily
dismissed defendant’s petition based solely on defendant’s
failure to refer to section 122-1 by number–-a decision we now
reverse. No reported decision authorizes us to turn back the
clock on the 90-day requirement.
Because the circuit court failed to address whether the
petition was “frivolous or patently without merit” within the 90-
day period, we find the petition must be remanded for stage-two
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proceedings. See 725 ILCS 5/122-2.1(b) (West 2002) (“If the
petition is not dismissed pursuant to this Section, the court
shall order the petition to be docketed for further consideration
in accordance with Sections 122-4 through 122-6.”)
Our disposition of this appeal does not require us to
address a serious issue raised by the defendant: whether the
clerk’s 16-month delay between filing the petition and docketing
it violates the spirit and purpose of the 90-day rule, requiring
us to remand the petition for second-stage review. Hopefully, we
will not again be faced with so substantial a failure by the
clerk to perform her statutory duty to “promptly” docket the
petition.
CONCLUSION
We reverse the circuit court’s summary dismissal of the
defendant’s post-conviction petition and remand the cause for
further consideration as a stage-two proceeding in accord with
sections 122-4 through 122-6 of the Act.
Reversed and remanded.
HOFFMAN, and HALL, JJ., concur.
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