People v. Hood

Opinion

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

- 2 - 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

- 3 - 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-

- 4 - 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

- 5 - 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

- 6 - (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

- 7 - 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,

- 8 - 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

- 9 - 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.

- 10 -