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0532 (May 10, 1999) (unpublished order under Supreme Court Rule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.
- 2 - 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
- 3 - 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
- 4 - 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:
- 5 - "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
Free access — add to your briefcase to read the full text and ask questions with AI
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.
- 2 - 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
- 3 - 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
- 4 - 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:
- 5 - "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
- 6 - 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.
- 7 - 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.
- 9 -