People v. Hood

Filed 10/22/09 NO. 4-08-0788
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
RICHARD L. HOOD, ) No. 01CF236
Defendant-Appellant. )
) Honorable
) Jennifer H. Bauknecht,
) Judge Presiding.
_________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
In September 2008, defendant, Richard L. Hood, filed a
pro se pleading entitled "habeas corpus petition." Also in
September 2008, the trial court dismissed defendant's pleading
after recharacterizing it as a postconviction petition. In this
appeal, defendant alleges the trial court erred by not giving him
the admonishments required by our supreme court in People v.
Shellstrom, 216 Ill. 2d 45, 57, 833 N.E.2d 863, 870 (2005)
(finding the trial court can recharacterize a pro se pleading as
a postconviction petition if the court gives certain admonitions
to the defendant). We vacate the trial court's judgment and
remand with directions.
I. BACKGROUND
On June 11, 2002, defendant entered a negotiated guilty
plea to four counts of aggravated battery (720 ILCS 5/12-4(b)(6)
(West 2000)). Pursuant to the plea agreement, the trial court
sentenced defendant to concurrent four-year terms of imprisonment
on each count to be served consecutive to terms of imprisonment
defendant was already serving for offenses he committed in Brown
and Adams Counties.
On September 8, 2008, defendant filed a pro se "habeas
corpus petition." Defendant alleged his guilty plea was not
knowingly and intelligently made because the trial court did not
inform him that his consecutive sentences would be treated as one
sentence for purposes of revoking his good-time credit. Further,
defendant claimed he was innocent of the instant charges.
On September 14, 2008, the trial court issued a "sum-
mary order dismissing petition for post-conviction relief." In
its order, the court stated that although defendant entitled his
petition as a "habeas corpus petition," defendant was seeking to
withdraw his guilty plea and therefore the court treated defen-
dant's petition as a postconviction petition. The court then
dismissed defendant's petition after finding it was frivolous and
without merit because defendant (1) had been properly admonished
of his appeal rights at the time he pleaded guilty, (2) did not
file a timely motion to withdraw his guilty plea or otherwise
appeal his conviction, (3) did not file his petition in time, and
(4) failed to set forth any basis to withdraw his guilty plea.
This appeal followed.
II. ANALYSIS
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On appeal, defendant's sole contention is that this
case must be remanded because the trial court erred in treating
his pro se habeas corpus petition as a postconviction petition
without first admonishing him in accordance with Shellstrom, 216
Ill. 2d at 57, 833 N.E.2d at 870. The State concedes the trial
court failed to comply with the procedures set forth in Shellstr-
om, but maintains that this case need not be remanded and urges
this court to follow the Third District's approach in People v.
Higginbotham, 368 Ill. App. 3d 1137, 859 N.E.2d 634 (2006). The
Higginbotham court affirmed the trial court's decision to
recharacterize the defendant's habeas corpus petition as a first
postconviction petition even though the trial court did not give
the defendant the admonishments set forth in Shellstrom. How-
ever, the court also stated "the pleadings cannot be considered
to have become a postconviction petition for purposes of applying
the restrictions on successive postconviction petitions contained
in the Post-Conviction Hearing Act [(Act) (725 ILCS 5/122-1
through 122-8 (West 2002))]to any later pleadings." Higginbotha-
m, 368 Ill. App. 3d at 1142, 859 N.E.2d at 638. We agree with
defendant.
In Shellstrom, our supreme court reaffirmed "that,
where a pro se pleading alleges a deprivation of rights cogniza-
ble in a postconviction proceeding, a trial court may treat the
pleading as a postconviction petition, even where the pleading is
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labeled differently." Shellstrom, 216 Ill. 2d at 52-53, 833
N.E.2d at 868. However, the court also noted that the "obstacles
standing in the way of filing a successive postconviction peti-
tion are not easy to overcome." Shellstrom, 216 Ill. 2d at 55,
833 N.E.2d at 869-70. This is because the Act only contemplates
the filing of one postconviction petition without receiving leave
from the trial court. 725 ILCS 5/122-1(f) (West 2008). In order
to be given leave to file a subsequent (or successive)
postconviction petition, a defendant must satisfy the cause-and-
prejudice test codified in section 122-1(f) of the Act. See 725
ILCS 5/122-1(f) (West 2008) (the defendant must show (1) cause
why the new claim or claims were not raised in the initial
postconviction petition and (2) resulting prejudice). This
standard is difficult to meet. Shellstrom, 216 Ill. 2d at 55-56,
833 N.E.2d at 870. Therefore, the Shellstrom court held that if
a trial court is going to recharacterize a pro se pleading
labeled as a different action cognizable under Illinois law as a
first postconviction petition, the trial court must do the
following:
"(1) notify the pro se litigant that the
court intends to recharacterize the pleading,
(2) warn the litigant that this recharacter-
ization means that any subsequent postcon-
viction petition will be subject to the re-
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strictions on successive postconviction peti-
tions, and (3) provide the litigant an oppor-
tunity to withdraw the pleading or to amend
it so that it contains all the claims appro-
priate to a postconviction petition that the
litigant believes he or she has." Shellstro-
m, 216 Ill. 2d at 57, 833 N.E.2d at 870.
In Shellstrom, the defendant had "not been given an
opportunity to withdraw his pleading or to amend it to include
whatever additional postconviction claims he [thought] fit."
Shellstrom, 216 Ill. 2d at 57-58, 833 N.E.2d at 871. Accord-
ingly, the supreme court vacated the circuit court's judgment
summarily dismissing the defendant's pleading entitled "'Motion
to Reduce Sentence, Alternatively, Petition for Writ of Mandamus
to Order Strict Compliance with Terms of Guilty Plea,'" and
remanded with directions to the circuit court to provide defen-
dant the opportunity to withdraw his pleading, or in the alterna-
tive, to amend it to include any additional postconviction claims
the defendant believed he had. Shellstrom, 216 Ill. 2d at 58,
833 N.E.2d at 871.
In Higginbotham, the defendant filed a pro se pleading
entitled "'Petition for Habeas Corpus.'" Higginbotham, 368 Ill.
App. 3d at 1140, 859 N.E.2d at 637. The trial court
recharacterized the pleading as a postconviction petition and
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dismissed it as frivolous and patently without merit.
Higginbotham, 368 Ill. App. 3d at 1140, 859 N.E.2d at 637. On
appeal, the defendant argued the trial court erred by dismissing
his pleading because the court never gave him the admonishments
required by Shellstrom. Higginbotham, 368 Ill. App. 3d at 1141,
859 N.E.2d at 637. The State argued that Shellstrom merely held
"that if the trial court fails to give the Shellstrom notifica-
tions to the pro se litigant prior to recharacterization, then
the recharacterized pleading cannot be considered to have become
a postconviction petition for purposes of applying restrictions
on successive postconviction petitions to later pleadings."
Higginbotham, 368 Ill. App. 3d at 1141, 859 N.E.2d at 638. The
Higginbotham court sided with the State and held it was not error
to recharacterize and dismiss the defendant's pleading.
Higginbotham, 368 Ill. App. 3d at 1141, 859 N.E.2d at 638.
However, the court also stated "that since the trial court did
not notify as required by Shellstrom, the pleadings cannot be
considered to have become a postconviction petition for purposes
of applying the restrictions on successive postconviction peti-
tions contained in the [Act] to any later pleadings."
Higginbotham, 368 Ill. App. 3d at 1142, 859 N.E.2d at 638.
In People v. Caliendo, 391 Ill. App. 3d 847, 847, 910
N.E.2d 598, 600 (2009), the defendant filed a petition under
section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401
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(West 2006)). The trial court summarily dismissed the pleading
after recharacterizing it as a postconviction petition without
giving the defendant the admonishments required by Shellstrom.
Caliendo, 391 Ill. App. 3d at 847-48, 910 N.E.2d at 600. The
Second District declined to follow the Higginbotham court's view
that remand was not the appropriate remedy "because [the
Higginbotham court] failed to explain why, if remand is unneces-
sary, our supreme court" remanded Shellstrom to the trial court
for the proper admonitions. Caliendo, 391 Ill. App. 3d at 853,
910 N.E.2d at 604. The court stated, "[h]ad our supreme court
meant that a recharacterized petition would simply not count as a
first petition, it could have said so, without remanding the case
to the trial court." Caliendo, 391 Ill. App. 3d at 853, 910
N.E.2d at 604. The court then determined that remand is the
proper remedy to correct the trial court's failure to give the
recharacterization admonishments required by Shellstrom. Calien-
do, 391 Ill. App. 3d at 853, 910 N.E.2d at 605.
We agree with the Caliendo court's analysis that if the
supreme court thought the appropriate remedy to correct the trial
court's failure to give the Shellstrom admonishments when
recharacterizing a pro se pleading as a postconviction petition
was to simply not count it as a first postconviction petition
there would have been no reason for the Shellstrom court to
remand that case to the trial court. Further support for this
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decision is the First District's decision in People v. Escobedo,
377 Ill. App. 3d 82, 878 N.E.2d 767 (2007), a case cited by the
Caliendo court. In Escobedo, the State argued the trial court's
failure to provide the defendant with the Shellstrom admonish-
ments was harmless error. Escobedo, 377 Ill. App. 3d at 88, 878
N.E.2d at 773. The court rejected the State's argument that a
trial court's decision to dismiss a pleading it recharacterized
as a postconviction petition without giving the defendant the
Shellstrom admonishments is subject to a harmless-error analysis
and concluded the admonishments are mandatory. Escobedo, 377
Ill. App. 3d at 88, 878 N.E.2d at 773.
III. CONCLUSION
For the reasons stated, the trial court's judgment
dismissing defendant's recharacterized habeas corpus petition is
vacated. This matter is remanded to the trial court with in-
structions to afford the defendant an opportunity to withdraw his
pro se pleading or, in the alternative, to amend it to include
any additional postconviction claims he believes he has. Nota-
bly, while trial courts have the authority to recharacterize a
defendant's pro se pleading as a postconviction petition, "trial
courts should be hesitant to use this authority and do so only in
'unusual and compelling circumstances.'" People v. Holliday, 369
Ill. App. 3d 678, 681, 867 N.E.2d 1016, 1019 (2007), quoting
People v. Purnell, 356 Ill. App. 3d 524, 529, 825 N.E.2d 1234,
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1238 (2005).
Vacated and remanded with directions.
APPLETON, J., concurs.
STEIGMANN, J., specially concurs.
JUSTICE STEIGMANN, specially concurring:
Although I agree with the majority, I write specially
to point out that this case constitutes yet another instance of
"no good deed going unpunished." The trial court no doubt
thought it was accommodating defendant's real intent, which was
to challenge the legitimacy of his guilty plea, by turning his
habeas corpus petition into a postconviction petition. The court
took this action because it was aware that defendant's claims
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about the legitimacy of his guilty plea were not cognizable in a
habeas corpus petition. Nonetheless, as this court's opinion
shows, the trial court's recharacterization of defendant's habeas
corpus petition was unwise, although well-intentioned.
Since the enactment of section 122-1(d) of the Act,
which became effective January 1, 1997, "no case has held that a
trial court erred by failing to recharacterize a defendant's
petition as a postconviction petition." Holliday, 369 Ill. App.
3d at 681, 867 N.E.2d at 1019. Yet, in this case and several
others, including Shellstrom, reversals have occurred because
trial courts recharacterized defendants' pleadings into
postconviction petitions but did so inappropriately.
Trial courts would be well advised to rethink the
wisdom of ever recharacterizing a pleading into a postconviction
petition under the Act and, as this court emphasizes yet again,
should "'do so only in "unusual and compelling circumstances."'
[Citations.]" Slip op. at 8.
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