People v. English

No. 3--05--0688
_________________________________________________________________
Filed April 8, 2008
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 14th Judicial Circuit,
) Henry County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 95--CF--305
)
SCOTT ENGLISH, ) Honorable
) Larry S. Vandersnick,
Defendant-Appellant. ) Judge Presiding.
_________________________________________________________________
JUSTICE LYTTON delivered the Opinion of the court:
_________________________________________________________________
Defendant, Scott English, was convicted of first degree felony
murder and aggravated battery of a child in 1996. In 1999, he
filed a postconviction petition. He later filed a motion to
voluntarily dismiss the petition, which the trial court granted.
In 2004, defendant filed another postconviction petition. The
trial court treated it as a successive petition and dismissed it on
the State’s motion. Defendant then filed a motion to reinstate and
amend his original 1999 postconviction petition. The trial court
denied the motion. We reversed and remanded.
Thereafter, the Illinois Supreme Court entered a supervisory
order directing us to vacate our judgment and consider whether we
should review the trial court's decision to dismiss defendant's
postconviction petition for an abuse of discretion. Upon further
consideration, we believe that we properly applied the de novo
standard to review the trial court's dismissal of defendant's
postconviction petition.
BACKGROUND
Defendant, Scott English, was convicted of first degree felony
murder and aggravated battery of a child. The trial court
sentenced defendant to a mandatory term of life imprisonment.
On appeal, we affirmed defendant’s convictions but remanded
the case to the trial court for resentencing. People v. English,
No. 3--96--0767 (2001) (unpublished order under Supreme Court Rule
23). On remand, the trial court sentenced defendant to 50 years
imprisonment.
In 1999, while his appeal was pending, defendant filed a
postconviction petition alleging that (1) he was not read his
Miranda warnings prior to being questioned by police, (2) he was
denied a fair trial because of trial and pre-trial publicity, and
(3) his trial counsel was ineffective. Defendant also filed a
motion requesting counsel, which the trial court granted.
Defendant’s counsel filed an amended petition, alleging new
grounds supporting defendant’s ineffective assistance of trial
counsel claim. On August 6, 2003, defendant’s counsel filed a
motion for voluntary dismissal of the postconviction petition,
requesting that the court dismiss the petition “without prejudice.”
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The trial court granted the motion.
On January 16, 2004, defendant filed a postconviction
petition, arguing for the first time that aggravated battery of a
child could not form the basis for his felony murder conviction
under People v. Morgan, 197 Ill. 2d 404, 758 N.E.2d 813 (2001), and
People v. Pelt, 207 Ill. 2d 434, 800 N.E.2d 1193 (2003). The State
filed a motion to dismiss the petition, arguing that it was a
successive petition filed without leave of court and that defendant
could not satisfy the cause and prejudice test.
On May 24, 2004, the trial court granted the State’s motion to
dismiss, finding that defendant “failed to show cause for his
failure to bring these claims in his initial post-conviction
petition.” Defendant filed a motion to reconsider, which the
court denied on July 23, 2004.
On August 5, 2004, defendant filed a motion to reinstate and
amend the postconviction petition he filed in 1999. The State
filed a motion to dismiss. The trial court denied defendant’s
motion to reinstate on September 26, 2005.
On September 27, 2005, defendant appealed. In his notice of
appeal, defendant identified the trial court’s September 26, 2005
order as the order from which he was appealing.
ANALYSIS
The Post-Conviction Hearing Act (Act) provides defendants with
a means of challenging their convictions or sentences for
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constitutional violations. 725 ILCS 5/122--1 et seq. (West 2004).
The Act establishes a three-stage process for adjudicating
postconviction petitions. 725 ILCS 5/122--1 through 122--8 (West
2004); People v. Williams, 364 Ill. App. 3d 1017, 1022, 848 N.E.2d
254, 258 (2006).
At any stage prior to entry of judgment, the trial court may
grant leave to voluntarily withdraw the petition. 725 ILCS 5/122--
5 (West 2004). The trial court may also enter orders allowing
parties to amend petitions and other pleadings, file further
pleadings, or extend the time of filing pleadings “as shall be
appropriate, just and reasonable and as is generally provided in
civil cases.” 725 ILCS 5/122--5 (West 2004).
The Act contemplates the filing of only one postconviction
petition. People v. Spears, 371 Ill. App. 3d 1000, 864 N.E.2d 758,
762 (2007). A defendant may file a second postconviction petition
only if he receives leave of court. Spears, 371 Ill. App. 3d 1000,
864 N.E.2d at 762. When a trial court dismisses a postconviction
petition, the defendant must file a timely notice of appeal to vest
the appellate court with jurisdiction to review the dismissal. See
People v. Fikara, 345 Ill. App. 3d 144, 152, 802 N.E.2d 260, 266
(2003).
Generally, an appellate court reviews de novo a trial court’s
dismissal of a postconviction petition. See Williams, 364 Ill.
App. 3d at 1023, 848 N.E.2d at 258. Nevertheless, the supreme
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court has instructed us to consider whether we should apply an
abuse of discretion standard to review the trial court's dismissal
of defendant's petition, citing section 122-5 of the Code of
Criminal Procedure (Code) (725 ILCS 5/122-5 (West 2004)). Section
122-5 of the Code provides in pertinent part:
The court may in its discretion grant leave, at any stage
of the proceeding prior to entry of judgment, to withdraw
the petition. The court may in its discretion make such
order as to amendment of the petition or any other
pleading, or as to pleading over, or filing further
pleadings, or extending the time of filing any pleading
other than the original petition, as shall be
appropriate, just and reasonable and as is generally
provided in civil cases. 725 ILCS 5/122-5 (West 2004).
While section 122-5 gives a court discretion with respect to
several matters, including leave to withdraw a petition, it does
not address how or when a trial court may reinstate a voluntarily
withdrawn postconviction petition. Because our analysis of this
issue presents a question of law that we must decide through
statutory interpretation, we apply a de novo standard of review.
See Brown v. ACMI Pop Division, 375 Ill. App. 3d 276, 283, 873
N.E.2d 954, 959 (2007).
I. Trial Court’s May 24, 2004 Order
The State argues that we have no jurisdiction to review the
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trial court’s May 24, 2004 order because defendant’s notice of
appeal was untimely.
When a final order is entered, Supreme Court Rule 606(b)
requires that a notice of appeal be filed within 30 days of entry
of the order or disposition of a timely filed motion attacking the
judgment. 188 Ill. 2d R. 606(b). Here, defendant filed his notice
of appeal on September 2005, over a year after the trial court
denied his motion to reconsider the dismissal of his 2004
postconviction petition. Thus, defendant did not timely perfect
his appeal of the trial court’s May 2004 dismissal of his petition.
We do not have jurisdiction to review that order. See Fikara, 345
Ill. App. 3d at 152, 802 N.E.2d at 266.
II. Trial Court’s September 26, 2005 Order
Defendant contends that the trial court erred by denying his
motion to reinstate and amend his initial postconviction petition
filed in 1999 because the motion was filed within one year of his
voluntarily dismissal.
Section 122--5 of the Act gives a court discretion to allow
the voluntary withdrawal of a postconviction petition at any time
before judgment is entered. 725 ILCS 5/122-5 (West 2004); see
People v. Wright, 149 Ill. 2d 36, 54, 594 N.E.2d 276, 284 (1992);
People v. Partee, 85 Ill. App. 3d 679, 683, 407 N.E.2d 215, 219
(1980). Voluntary withdrawal of postconviction petition is
equivalent to a voluntary dismissal in a civil case. Cf. People v.
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McClure, 218 Ill. 2d 375, 843 N.E.2d 308 (2006) (voluntary
withdrawal of a petition to rescind summary suspension is
tantamount to a voluntary dismissal under section 13-217 of the
Code of Civil Procedure). When a court allows a defendant to
voluntarily withdraw an initial postconviction petition, the
defendant can refile and reinstate the petition and have it treated
as the original. See Partee, 85 Ill. App. 3d at 683, 407 N.E.2d at
219; People v. Johnson, 11 Ill. App. 3d 510, 514, 298 N.E.2d 346,
349 (1973). However, the Act does not state when a defendant may
refile a voluntarily withdrawn petition.
Because postconviction proceedings are “civil in nature”
(People v. Johnson, 191 Ill. 2d 257, 270, 730 N.E.2d 1107, 1115
(2000); People v. Clements, 38 Ill. 2d 213, 215, 230 N.E.2d 185,
187 (1967)), a court may enter an order in postconviction
proceedings “as is generally provided in civil cases.” 725 ILCS
5/122--5 (West 2004). This means applying the provisions of the
Code of Civil Procedure (Code) (735 ILCS 5/1 et seq. (West 2004)).
See McClure, 218 Ill. 2d at 383, 843 N.E.2d at 313. Of course, the
Code cannot conflict with provisions of the Act. See Clements, 38
Ill. 2d at 215-16, 230 N.E.2d at 187; People v. Deming, 87 Ill.
App. 3d 953, 957-58, 409 N.E.2d 352, 355 (1980). But the Code can
be looked to for guidance if the Act is silent concerning a
procedural matter. See 725 ILCS 5/122--5 (West 2004) (allowing
courts to enter orders in postconviction proceedings as in “civil
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cases”).
In McClure, the Illinois Supreme Court held that section 13-
217 of the Code allows a driver who voluntarily withdraws his
initial petition to rescind a statutory summary suspension to
refile the petition within one year because summary suspension
hearings are “civil in nature” and “shall proceed in the court in
the same manner as in other civil proceedings.” See McClure, 218
Ill. 2d at 382-85, 843 N.E.2d at 312-14 (citing People v. Moore,
138 Ill. 2d 162, 167, 561 N.E.2d 648 (1990); 625 ILCS 5/2-118.1(b)
(West 2002)). Similarly, since our supreme court has determined
that postconviction proceedings are civil in nature, the one year
savings clause set forth in section 13-217 of the Code applies to
this case. See Johnson, 191 Ill. 2d at 270, 730 N.E.2d at 1115;
Clements, 38 Ill. 2d at 215, 230 N.E.2d at 187.
Section 13-217 provides that a plaintiff who voluntarily
dismisses his action “may commence a new action within one year *
* * after the action is voluntarily dismissed by the plaintiff.”
735 ILCS 5/13--217 (West 2004). A postconviction petition timely
filed within one year of voluntarily withdrawing an initial
petition under section 13-217 should not be dismissed.
Here, the trial court granted defendant’s motion to
voluntarily dismiss his initial postconviction petition on August
6, 2003. On August 5, 2004, defendant moved to reinstate and amend
that petition. His motion was filed within one year of the
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voluntary withdrawal; it should have been allowed. We remand the
cause to allow the trial court to reinstate the original
postconviction petition, with amendments, and treat it as an
initial petition.
CONCLUSION
The order of the circuit court of Henry County is reversed and
remanded.
Reversed and remanded.
MCDADE, PJ., and O'BRIEN, J., concurring.
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