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People v. Cox





Appeal from the Circuit Court of Cook County; the Hon. John W. Crilly, Judge, presiding.


Following a plea of guilty to two separate indictments of theft defendant was convicted and was sentenced to concurrent terms of seven and four years. No direct appeal was taken but defendant filed a pro se petition for post-conviction relief which was denied and on the appeal therefrom, in which he is represented by the Public Defender of Cook County, it is contended that the trial court erred when it dismissed his petition without specifying its reasons in a written order as required by statute. Ill. Ann. Stat., ch. 38, par. 122-2.1(a) (Smith-Hurd Supp. 1985).

During a pretrial conference, defendant sought to withdraw his plea of not guilty and enter guilty pleas to two indictments of theft. The court informed him that the sentence for each could be anywhere from 2 to 10 years plus 1 year of mandatory supervisory release. When asked by the court whether he understood the possible sentences, defendant replied that he did. He was also given a lengthy explanation of his right to a jury trial and told that, by pleading guilty, he would be admitting the commission of the crimes and would not have a trial. After the prosecutor set forth the stipulated factual basis for the guilty pleas, defendant stated that he was pleading guilty voluntarily; that he had not been threatened or forced into pleading guilty; and that there were no other promises made to him to induce his pleas. The court, after stating that defendant had been advised and understood his rights with respect to the pleas, found that he had waived them by voluntarily pleading guilty and that a factual basis existed for them. Defendant was then sentenced as set forth above with the court specifically stating that "these two sentences are concurrent with each other * * *." Defendant's pro se petition for post-conviction relief was dismissed without an evidentiary hearing and this appeal followed.


Defendant contends that reversal and remandment is required because the order dismissing his petition for post-conviction relief did not specify the court's reasons therefor as required by statute. The order in question was as follows: "Whereas: the court being advised in the premises and having been supplied with a transcript of the plea of guilty before Judge Heyda on July 2, 1982, the court denies petitioner's allegations I thru VIII. *fn1 Therefore: The petition for post-conviction relief is denied." Defendant argues that the order did not sufficiently comply with the statute requiring in pertinent part that: "If the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order specifying the findings of fact and conclusions of law it made in reaching its decision." Ill. Ann. Stat., ch. 38, par. 122-2.1(a) (Smith-Hurd Supp. 1985).

It is the position of defendant that this provision mandated that the court set forth findings of fact and conclusions of law in its dismissal order, but the State maintains that it should be interpreted as directory or permissive rather than mandatory.

We note in this regard that whether a statutory provision is interpreted as mandatory or directory depends upon the intent of the drafters. (People v. Youngbey (1980), 82 Ill.2d 556, 413 N.E.2d 416.) One indication of such intent is the language used, and, although as a general rule the use of the word "shall" is regarded as indicative of mandatory intent, such a rule is not inflexible and the interpretation also depends upon the purpose and context of the provision. People v. Youngbey (1980), 82 Ill.2d 556, 413 N.E.2d 416.

"Generally those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly and prompt conduct of the business, and by the failure to obey no prejudice will occur to those whose rights are protected by the statute, are not commonly considered mandatory. Likewise, if the act is performed but not in the time or in the precise manner directed by the statute, the provision will not be considered mandatory if the purpose of the statute has been substantially complied with and no substantial rights have been jeopardized." (Emphasis added.) (1A A. Sutherland, Statutory Construction sec. 25.03, at 300 (1984); see also Carrigan v. Liquor Control Com. (1960), 19 Ill.2d 230, 166 N.E.2d 574; Village of Mundelein v. Hartnett (1983), 117 Ill. App.3d 1011, 454 N.E.2d 29.)

Additionally, it has been stated that statutes intended to be mandatory will prescribe the result that will ensue if the specified procedure is not followed whereas directory statutes are limited to what is required to be done. Walker v. Cronin (1982), 107 Ill. App.3d 1053, 438 N.E.2d 582, citing 2A A. Sutherland, Statutory Construction sec. 57.08 (1984).

Our research here has disclosed no legislative history with respect to this provision, but it is our view that the language itself does not provide strong support for a mandatory construction. The statute does not say "shall not dismiss the petition unless the written order specifies," nor does it say "shall dismiss the petition in a written order which shall contain its findings of fact and conclusions of law." Thus, any mandatory effect which may have been intended by the legislature with respect to the dismissal itself does not necessarily apply to that part of the statute which refers to the content of the order. Rather, it is our belief that the provision requiring findings is not of the essence of the thing to be done — the dismissal of the petition — but was a direction given merely as a view to the prompt, orderly and proper conduct of the court's business. Thus, under the reasoning of Carrigan v. Illinois Liquor Control Com. (1960), 19 Ill.2d 230, 166 N.E.2d 574, the provision would be directory. This interpretation is further supported by the lack of prejudice suffered by petitioner. During oral argument before us, his counsel could not point out the manner in which a defendant would be harmed where specific findings are not made. He suggested only that the findings were mandated for the benefit of the reviewing court. We find no merit in this suggestion. It should be noted that while the reasoning of the trial court might be helpful upon appeal, the reviewing court must determine whether there is record support for the trial court's reasoning, and even if there is not, it may affirm on any proper basis appearing in the record (see Shanahan v. Schindler (1978), 63 Ill. App.3d 82, 379 N.E.2d 1307; People v. Gardner (1977), 56 Ill. App.3d 606, 371 N.E.2d 1164). A reviewing court could, of course, if it was deemed necessary, remand for a specification of the trial court's findings, but because we see no such necessity here, we believe reversal would be inappropriate solely because they were not included in the court's dismissal order.

• 1 It should be noted also that the substantial rights of a petitioner are not affected since the dismissal of a post-conviction petition is subject to review. It would be a final judgment (Ill. Ann. Stat., ch. 38, par. 122-2.1(a) (Smith-Hurd Supp. 1985)), and "[a]ny final judgment entered upon such petition shall be reviewed in a manner pursuant to the rules of the Supreme Court." (Ill. Rev. Stat. 1983, ch. 38, par. 122-7.) In the light of the foregoing, we find that the statutory provision in question here is directory rather than mandatory.

Moreover, even if we were to interpret the statute as mandatory, a flexible interpretation of the content requirement itself would be more appropriate. In the context of frivolous petitions, we believe it would be sufficient for the trial court to give some indication of the basis for its decision, and we note that counsel for petitioner suggested at oral argument that an appropriate order might have merely stated that, upon review, there was no basis for the allegations. Here, then, where the trial court order stated that it denied the allegations in the petition after being provided with the transcript of the change of plea proceeding which effectively negated all of petitioner's allegations, it is our view that the order substantially complied with the statutory directive.

We note the additional argument of the State that an interpretation of the statute as mandatory rather than directory would cause it to run afoul of the constitutional principle of separation of powers. (See People v. Davis (1982), 93 Ill.2d 155, 442 N.E.2d 855; see also People v. Flores (1984), 104 Ill.2d 40, 470 N.E.2d 307; see generally 2A A. Sutherland, Statutory Construction sec. 57.16 (1984), because the General Assembly has the power to enact laws governing judicial practice only where they do not unduly infringe upon the inherent powers of the judiciary (People v. Flores (1984), 104 Ill.2d 40, 470 N.E.2d 307).) However, in the light of our finding that the pertinent part of the statute is directory, it is not necessary to reach the constitutional question.

• 2 Although defendant fashions his appeal to be solely a procedural one involving the sufficiency of the trial court order, he also argues that his petition was based on evidence outside the record and that, because he made a substantial showing that his constitutional rights were violated, he should have had an evidentiary hearing. It is well established, however, that "[m]ere conclusory allegations that constitutional rights have been violated are insufficient to entitle petitioner to an evidentiary hearing. [Citation.] The petition or accompanying affidavits must identify with reasonable certainty the sources, character and availability of the alleged evidence supporting the petitioner's allegations. [Citations.]" (People v. Graham ...

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