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02/10/87 the People of the State of v. Jerome White

February 10, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JEROME WHITE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

504 N.E.2d 520, 152 Ill. App. 3d 404, 105 Ill. Dec. 420 1987.IL.151

Appeal from the Circuit Court of Champaign County; the Hon. John R. DeLaMar, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. McCULLOUGH and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

After a trial by jury in the circuit court of Champaign County, defendant, Jerome White, was convicted of murder and conspiracy to commit murder and subsequently sentenced to a term of natural-life imprisonment. On direct appeal, this court affirmed. (People v. White (1984), 122 Ill. App. 3d 24, 460 N.E.2d 802.) On September 23, 1985, defendant filed a verified petition for post-conviction relief in the circuit court of Champaign County. (Ill. Rev. Stat. 1985, ch. 38, par. 122-1.) The petition was comprehensive and supported by various documents, but defendant appeared pro se. Without holding a hearing, that court dismissed the petition on October 11, 1985, pursuant to the summary procedures provided by section 122-2.1(a) of the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1985, ch. 38, par. 122-2.1(a)). Defendant has appealed. We reverse and remand with directions that the circuit court proceed pursuant to the provisions of sections 122-4 through 122-6 of the Act (Ill. Rev. Stat. 1985, ch. 38, pars. 122-4 through 122-6).

Section 122 -- 2.1 of the Act states:

"(a) Within 30 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section. 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. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry.

(b) If the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration in accordance with Sections 122 -- 4 through 122 -- 6.

(c) In considering a petition pursuant to this Section, the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding." Ill. Rev. Stat. 1985, ch. 38, par. 122-2.1.

This court has previously explained in People v. Dredge (1986), 148 Ill. App. 3d 911, 500 N.E.2d 445, and People v. Cooper (1986), 142 Ill. App. 3d 223, 491 N.E.2d 815, that the enactment of section 122-2.1 changed the procedure under the Act from a two-step to a three-step procedure. Previously, the procedure was somewhat similar to that in most civil cases. The State could either attack the sufficiency of the petition or answer requiring proof. If the attack on the sufficiency of the petition failed, the State could deny the allegations and obtain an evidentiary hearing. Now, the court first determines whether the petition is "frivolous" or "patently without merit" and, if so, summarily dismisses it. If no such finding is made, sections 122-4 through 122-6 of the Act (Ill. Rev. Stat. 1985, ch. 38, pars. 122-4 through 122-6) are applicable. They provide for (1) a determination whether the petitioner is entitled to appointed counsel, (2) an opportunity for the petitioner to amend, (3) an opportunity for the State to challenge the sufficiency of the petition, and (4) an evidentiary hearing if the petition is deemed sufficient. The procedures set forth in sections 122-4 through 122-6 are similar to the previous two-phased procedures whereby no summary dismissal without a hearing was possible. The first phase was to determine the sufficiency of the petition and the second phase, if necessary, was to hold an evidentiary hearing on the petition.

The major thrust of defendant's petition was that he was denied due process because the indictment was based in part on perjured testimony. (United States v. Samango (9th Cir. 1979), 607 F.2d 877; United States v. Serubo (3d Cir. 1979), 604 F.2d 807.) Even though this issue was not raised on direct appeal, defendant alleged that he was not estopped to raise it because counsel on that appeal had incompetently refused his request that the issue be raised. (People v. Hamby (1965), 32 Ill. 2d 291, 205 N.E.2d 456.) In addition, defendant maintained that trial counsel was incompetent in failing (1) to adequately investigate and prepare for trial due to his failure to secure the testimony of codefendant Bernice Caldwell; (2) to explicitly advise defendant of his right to testify on his own behalf; and (3) to discuss defense strategies with him. Another contention of defendant's petition is very difficult to comprehend but apparently is based on a theory that he was entitled to discovery at the time of the grand jury's consideration of the charges against him.

On appeal, defendant maintains that his petition, as supported by the record, is sufficient to entitle him to an evidentiary hearing thereon. Clearly, we would have no authority to order that even if we agreed with him. The issue is whether the circuit court erred in finding that the petition was "frivolous" or "patently without merit" and in failing to advance the proceedings to the second stage as described in Dredge and Cooper. The State would be entitled to attack the sufficiency of the petition and to be heard on that point in the circuit court before the court could properly order an evidentiary hearing. Defendant does assert, in the alternative, that the circuit court should have advanced the proceedings to the second stage, thus requiring the State to respond. In addition to alleging that the petition was not "frivolous" or "patently without merit," he also contends that section 122 -- 2.1 providing for a summary dismissal is unconstitutional. Because we agree with defendant as to his first allegation, we need not pass upon defendant's contention of unconstitutionality. We have upheld the constitutionality of section 122 -- 2.1 in People v. Farmer (1986), 148 Ill. App. 3d 723, 499 N.E.2d 710, and People v. Baugh (1985), 132 Ill. App. 3d 713, 477 N.E.2d 724, but the first district has held to the contrary in People v. Mason (1986), 145 Ill. App. 3d 218, 494 N.E.2d 1176, appeal allowed (1986), 112 Ill. 2d 587, consolidated with People v. Porter (1986), 141 Ill. App. 3d 208, 490 N.E.2d 47, appeal allowed (1986), 112 Ill. 2d 589, and with People v. Singleton (1986), 143 Ill. App. 3d 1159 (Rule 23 order), appeal allowed (1986), 112 Ill. 2d 591.

In Dredge and Cooper we made clear that the first-phase determination in regard to frivolity and patent lack of merit is not the same determination as the decision as to whether an evidentiary hearing is necessary. In Dredge, we said that the petition "need only contain a simple statement which presents the gist of a claim for relief which is meritorious when considered in view of the record of the trial court proceedings." (People v. Dredge (1986), 148 Ill. App. 3d 911, 913, 500 N.E.2d 445, 446.) We noted that requiring greater detail might prevent those convicted of a meaningful opportunity to present claims of constitutional deprivation. The Mason court, in finding section 122-2.1 invalid, noted that, by the terms of section 122-3 of the Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-3), even the summary dismissal of a post-conviction petition is res judicata on questions of post-conviction relief, while the summary dismissal of a Federal habeas corpus petition ordinarily does not bar the filing of a subsequent petition. (People v. Mason ...


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