NOS. 4-08-0026, 4-08-0260 cons. F: 12/19/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Jersey County SAMUEL L. PACE, ) No. 96CF35 Defendant-Appellant. ) ) Honorable ) Tim P. Olson, ) Judge Presiding. _________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
In April 2007, counsel for defendant, Samuel Pace,
moved for the voluntary dismissal without prejudice of a pro se
petition filed pursuant to the Post-Conviction Hearing Act (Act)
(725 ILCS 5/122-1 through 122-8 (West 1998)). Approximately nine
months later, defendant sought reinstatement of his entire
petition. In March 2008, the trial court concluded defendant was
not entitled to reinstatement and refused defendant's request.
Defendant appeals, arguing he had an absolute right to reinstate
his postconviction petition. We need not explore whether a right
to reinstate was absolute, because we find the petition should
have been reinstated whether the decision was required or a
matter of discretion.
I. BACKGROUND
In June 1997, defendant, Samuel Pace, was convicted of
first-degree murder (720 ILCS 5/9-1(a)(1) (West Supp. 1995)). He was sentenced to a term of natural life imprisonment. Defendant
pursued a direct appeal. We affirmed his conviction and sen-
tence. People v. Pace, No. 5-97-0467 (December 1, 1998) (unpub-
lished order under Supreme Court Rule 23).
In July 1999, defendant filed his pro se postconviction
petition. In his petition, defendant made numerous allegations
of error, including 28 allegations of trial-counsel error, 17
allegations of appellate-counsel error, and 17 allegations of
prosecutorial misconduct. In September 1999, the trial court
determined three allegations were "of concern": (1) defense
counsel forced defendant to testify; (2) the sheriff gave false
testimony, as indicated by his conflicting testimony from the
guilty-plea hearing and the suppression hearing; and (3) a juror
told the sheriff she was forced to vote "guilty." The court
found the other claims frivolous or patently without merit and
appointed counsel. At least one other issue, concerning an
Apprendi-based argument (Apprendi v. New Jersey, 530 U.S. 466,
147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)), was also raised.
On April 2, 2007, counsel for defendant petitioned for
voluntary dismissal without prejudice. Counsel stated he re-
viewed defendant's petition, met with defendant, conducted
interviews of witnesses, and solicited affidavits related to the
petition. Counsel concluded "currently there is no colorable
argument for a post-conviction petition." Counsel further
- 2 - requested the dismissal "with leave to re-file in the future if
appropriate evidence along with affidavits become available."
On June 12, 2007, the court dismissed defendant's petition.
On January 26, 2008, defendant asked the trial court to
reconsider the dismissal of his postconviction petition. In his
motion to reconsider the voluntary dismissal, defendant sought
reinstatement of the petition. Defendant argued his public
defender, Todd Parish, did not notify him "either before or after
filing" the motion for voluntary dismissal of defendant's
postconviction petition. Defendant also maintained Parish, when
filing the motion for voluntary dismissal, also sought to be
removed from defendant's case. According to defendant, Parish
should have been removed and should not have been allowed to seek
the dismissal of his postconviction petition.
In March 2008, the trial court held a hearing on
defendant's motion to reconsider. At this hearing, counsel
stated he researched and considered the three arguments of
concern as identified by the trial court. Counsel stated he read
the entire court record and did not find any inconsistencies that
had merit. Counsel stated he twice spoke with the juror who
denied defendant's allegations she was coerced into finding
defendant guilty. As for the argument defendant was forced to
plead guilty, counsel twice spoke with defendant's trial counsel
and received copies of two letters trial counsel wrote to defen-
- 3 - dant. Counsel believed no colorable argument could be made on
this ground as well.
Appointed counsel further stated the following about
his conversation with defendant and the decision to withdraw his
petition:
"And consequently, I told [defendant]
that in a meeting here in the courthouse. At
first he was, I think he was a bit frustrated
with my conclusions and continued to make the
same statements about well, these, I still
think these are issues. I told him I don't
believe there is any issue, that I had an
obligation to research those issues, speak to
those people, read the court record, there
were not any issues, and I told him I was
going to file a voluntary petition to dis-
miss, and at that time he said yes, that was,
if that's what I thought was best, then
that's what I should do. And that's what I
did, Your Honor."
The trial court denied defendant's request to recon-
sider the dismissal of his postconviction petition and to rein-
state. This appeal followed.
II. ANALYSIS
- 4 - The parties agree a trial court may grant leave to a
petitioner under the Act to withdraw his or her petition. 725
ILCS 5/122-5 (West 2006) ("The court may in its discretion grant
leave, at any stage of the proceeding prior to entry of judgment,
to withdraw the petition"). The parties disagree as to when or
how a motion to reinstate may or should be granted.
Defendant argues the reinstatement of his voluntarily
withdrawn petition is required. Defendant cites the Third
District decision of People v. English, 381 Ill. App. 3d 906,
909, 885 N.E.2d 1214, 1217 (2008), and maintains when a trial
court permits a defendant to withdraw his petition voluntarily,
"the defendant can refile and reinstate the petition and have it
treated as the original." Defendant contends as long as the
petitioner who voluntarily withdrew his petition requests rein-
statement within one year of the dismissal or before the expira-
tion of the applicable statute of limitations, whichever is
later, reinstatement is mandated. Defendant reasons section 122-
5 of the Act authorizes a trial court to enter orders in
postconviction cases "as is generally provided in civil cases."
725 ILCS 5/122-5 (West 2006). Defendant argues, in civil cases,
section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217
(West 1994) (as the section read before enactment of Public Act
89-7 (Pub. Act 89-7, §15, eff. March 9, 1995), which was declared
unconstitutional in Best v. Taylor Machine Works, 179 Ill. 2d
- 5 - 367, 689 N.E.2d 1057 (1997))) applies and authorizes reinstate-
ment within one year of the voluntary dismissal, even if the
limitations period expired:
"In *** any other act *** where the time
for commencing an action is limited, if ***
the action is voluntarily dismissed by the
plaintiff, *** the plaintiff *** may commence
a new action within one year or within the
remaining period of limitation, whichever is
greater, *** after the action is voluntarily
dismissed by the plaintiff."
The State first contends "nowhere in section 122-5, or
anywhere in the Act, is there a provision that allows reinstate-
ment of a voluntarily withdrawn petition." The State maintains
the decision in English is wrong because, it contends, the court
lifted the "civil cases" language from the end of section 122-5
and used the language to find the rules of the Code of Civil
Procedure apply to petitions filed pursuant to the Act.
The State argues the Code of Civil Procedure does not
apply to the Act except where it is explicitly mentioned. The
State contends the Act refers to civil cases or the Code of Civil
Procedure in two sentences, indicating a legislative intent not
to apply civil practice law generally to procedures under the
Act. The first appears in section 122-4, which discusses how to
- 6 - calculate filing fees and court costs for prisoners who file
frivolous petitions. 725 ILCS 5/122-4 (West 2006). The second
is in section 122-5. The State argues the "civil cases" language
can only be applied to the sentence in which it appears. The
State further argues the General Assembly did not provide for a
means to reinstate a voluntarily withdrawn petition because
section 122-1 of the Act allows the filing of a petition at any
time if the delay was not due to the petitioner's culpable
negligence (see 725 ILCS 5/122-1 (West 2006)).
The Third District in a similar case determined rein-
statement was required. English, 381 Ill. App. 3d at 910, 885
N.E.2d at 1218. In 1999, the English defendant filed a
postconviction petition with a request for the appointment of
counsel while his appeal was pending. English, 381 Ill. App. 3d
at 907, 885 N.E.2d at 1215. Appointed counsel amended the
petition and added new grounds. On August 6, 2003, defendant
moved for the voluntary dismissal "without prejudice" of his
postconviction petition. The trial court granted defendant's
motion. English, 381 Ill. App. 3d at 907, 885 N.E.2d at 1215.
In January 2004, the English defendant filed a
postconviction petition alleging a new error. The State re-
sponded with a motion to dismiss, arguing this was a successive
petition and defendant did not satisfy the cause-and-prejudice
test. English, 381 Ill. App. 3d at 907, 885 N.E.2d at 1215. In
- 7 - May 2004, the trial court granted the State's motion upon con-
cluding the defendant did not show cause for the failure to raise
the claim in the earlier petition. English, 381 Ill. App. 3d at
907, 885 N.E.2d at 1215-16. On August 5, 2004, defendant moved
to reinstate and amend the postconviction petition he had volun-
tarily dismissed. The State moved to dismiss defendant's motion.
The trial court refused to reinstate defendant's petition.
English, 381 Ill. App. 3d at 907, 885 N.E.2d at 1216.
On appeal, the defendant argued the trial court should
have reinstated his petition because his request to reinstate was
filed within one year of the voluntary dismissal. English, 381
Ill. App. 3d at 909, 885 N.E.2d at 1217. The Third District
agreed. The English court reasoned while section 122-5 granted
courts discretion to allow a defendant to withdraw voluntarily an
initial postconviction petition, the Act failed to "address how
or when a trial court may reinstate a voluntarily withdrawn
postconviction petition." English, 381 Ill. App. 3d at 908, 885
N.E.2d at 1216.
Defendant contends this court should follow English.
In his reply brief, defendant argues the Illinois Supreme Court
denied the petition for leave to appeal the English decision.
See People v. English, 229 Ill. 2d 638, ___ N.E.2d ___ (No.
106529, appeal denied 2008). Defendant maintains "in keeping
with the [s]upreme [c]ourt's apparent approval of English, that
- 8 - case provides the correct framework and should be followed."
This argument has no merit. "[D]enials of leave to appeal ***
carry no connotation of approval or disapproval of the appellate
court action, and signify only that four members of this court,
for reasons satisfactory to them, have not voted to grant leave."
People v. Vance, 76 Ill. 2d 171, 183, 390 N.E.2d 867, 872 (1979).
We begin with the Act. Contrary to the State's argu-
ment, the Act is not silent on the issue of reinstatement. While
the Act does not use the term "reinstate" or explicitly refer to
the reinstatement of a voluntarily withdrawn petition, it does
grant authority to courts to "make such order as to amendment of
the petition or any other pleading, or as to pleading over, or
filing further pleadings." (Emphases added.) 725 ILCS 5/122-5
(West 2006). A petition is a pleading. See Black's Law Dictio-
nary 1191 (8th ed. 2004) (defining pleadings as "[a] formal
document in which a party to a legal proceeding (esp. a civil
lawsuit) sets forth or responds to allegations, claims, denials,
or defenses"); see also 725 ILCS 5/122-5 (West 2006) (allowing
the amendment of the "petition or any other pleading" (emphasis
added)). Asking the court to reinstate a voluntarily dismissed
or withdrawn petition is the same as asking the court to allow
"pleading over" or to permit the "filing [of] further pleadings."
725 ILCS 5/122-5 (West 2006). The last sentence of section 122-5
applies to defendant's reinstatement request.
- 9 - We note this conclusion renders irrelevant the State's
argument the "civil cases" language does not apply to the Act in
general. In making this argument, the State concluded "section
122-5 is only intended to give courts authority to use civil
procedure in those specific instances mentioned in that last
sentence." The flaw in the State's argument is the "civil cases"
language appears in the very sentence that gives the trial court
discretion to make orders regarding "pleading over" or "filing
further pleadings" or refiling withdrawn petitions.
The question remains whether the trial court has
discretion to allow reinstatement or a refiling of a voluntarily
withdrawn petition or whether the reinstatement is mandatory. We
turn to the relevant language of section 122-5:
"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 pro-
vided in civil cases." 725 ILCS 5/122-5
(West 2006).
The sentence begins with giving the trial court discre-
tion to determine when to allow parties to plead over or amend.
- 10 - The sentence ends with a reference to "civil cases." As we know
from defendant's argument, the "civil cases" authorize the
refiling of a voluntarily dismissed complaint within one year of
the voluntary dismissal. In this case, less than one year has
passed since the trial court authorized the voluntary dismissal.
Defendant's position, consistent with the holding in
English, is although the General Assembly gave the trial court
discretion to allow "pleading over" or "filing further plead-
ings," it then removed that discretion within the same sentence.
We need not decide whether this interpretation is the correct
one. Under the circumstances of this case, whether reinstatement
was mandatory or an act of discretion, defendant's request to
reconsider and reinstate should have been allowed.
The Act creates a remedy for prisoners who suffered "a
substantial violation of their constitutional rights at trial."
People v. Edwards, 197 Ill. 2d 239, 243-44, 757 N.E.2d 442, 445
(2001). Under the Act, there are three stages for proceedings
for those not sentenced to the death penalty. In the first
stage, after a prisoner files a petition, the circuit court must
review it within 90 days to ascertain whether "'the petition is
frivolous or patently without merit.'" Edwards, 197 Ill. 2d at
244, 757 N.E.2d at 445, quoting 725 ILCS 5/122-2.1(a)(2) (West
1998). A petition will survive this stage if it is not frivolous
or patently without merit or, in other words, sets forth the gist
- 11 - of a constitutional claim. See 725 ILCS 5/122-2.1(a)(2) (West
2004); People v. Ledbetter, 342 Ill. App. 3d 285, 286, 794 N.E.2d
1067, 1068-69 (2003).
If the petition succeeds in setting forth the gist of a
constitutional claim, it proceeds to the second stage. See 725
ILCS 5/122-2.1(b) (West 2004). At this stage, counsel may be
appointed for those defendants who allege they are "unable to pay
the costs of the proceeding." 725 ILCS 5/122-4 (West 2004).
Appointed counsel is required, under Supreme Court Rule
651(c) (134 Ill. 2d R. 651(c)), to (1) consult with the peti-
tioner "to ascertain his contentions of deprivation of constitu-
tional right"; (2) examine the record of the trial proceedings;
and (3) make amendments "necessary for an adequate presentation
of petitioner's contentions." Rule 651(c) does not require
counsel to amend the pro se petition. People v. Jennings, 345
Ill. App. 3d 265, 272, 802 N.E.2d 867, 873 (2003). Indeed,
ethical obligations prohibit counsel from doing so if the claims
are frivolous or spurious. People v. Greer, 212 Ill. 2d 192, 205,
817 N.E.2d 511, 519 (2004). The question remains what should
counsel do if counsel investigates the claims but finds them
without merit. The case law provides options. One is to stand
on the allegations in the pro se petition and inform the court of
the reason the petition was not amended. See, e.g., People v.
Wolfe, 27 Ill. App. 3d 551, 552, 327 N.E.2d 416, 417-18 (1975).
- 12 - Another is to withdraw as counsel. Greer, 212 Ill. 2d at 194-95,
212, 817 N.E.2d at 514, 523. In both of these scenarios, the
allegations in the pro se petition remained to proceed according
to the parameters of the Act. See Greer, 212 Ill. 2d at 195,
212, 817 N.E.2d at 514, 523; Wolfe, 27 Ill. App. 3d at 552, 327
N.E.2d at 417-18.
In addition to authorizing the appointment of counsel
and the amendment of a pro se petition, the second stage requires
State involvement. The State has the option of moving to dismiss
or answering the petition. 725 ILCS 5/122-5 (West 2006). If the
petition survives the second stage, it advances to the third
stage for an evidentiary hearing. See 725 ILCS 5/122-6 (West
2006).
In this case, the petition advanced to the second stage
after the trial court found three allegations "of concern" and
appointed counsel. Counsel did not amend the petition or ask to
withdraw as counsel. Instead, counsel pursued another option:
the voluntary dismissal of his client's petition "with leave to
re-file in the future if appropriate evidence along with affida-
vits become available." The trial court granted the dismissal.
When defendant asked for a reinstatement, he did so within the
time "civil cases" allow the refiling of a complaint. See 735
ILCS 5/13-217 (West 2006). The court denied his request.
The trial court should have granted defendant's request
- 13 - to reinstate his petition. The record does not firmly establish
what defendant knew when the motion for voluntary dismissal was
filed. At the hearing on the motion to reconsider the voluntary
dismissal, counsel stated he informed defendant he decided to
file the petition for voluntary dismissal. While counsel also
indicated defendant consented if counsel "thought it was best,"
counsel did not date the discussion or, more importantly, indi-
cate he gave defendant the option of proceeding on his pro se
petition. This latter information is significant because counsel
indicated when he told defendant his intentions to voluntarily
dismiss the case, defendant continued to believe his case had
merit.
Considering the established options available to
counsel, the choice of voluntary dismissal is troublesome under
these circumstances. If counsel and the trial court believed
defendant's case lacked merit, they should have allowed the pro
se petition to proceed with or without counsel. Instead, the
court allowed the voluntary dismissal upon defense counsel's
request for leave to amend if evidence became available. Defen-
dant's three remaining claims, however, were not of the type that
would have benefitted from a delay. The juror twice denied she
had been influenced, trial counsel and the record provided proof
defendant was aware of his right not to testify, and the record
did not divulge significant inconsistencies in the sheriff's
- 14 - testimony. The record shows no indication time would have
resulted in any evidence to counter these conclusions.
Ultimately, the combined actions of appointed counsel
and the trial court usurped the second stage of the proceedings
under the Act, denying defendant the very process he sought by
filing his pro se petition. The petition should have been
reinstated.
III. CONCLUSION
For the reasons stated, we find the trial court erred
in denying defendant's request to reinstate his pro se petition.
We reverse the order on defendant's motion to reconsider the
voluntary dismissal and remand for further proceedings.
Reversed and remanded.
STEIGMANN and APPLETON, JJ., concur.
- 15 -