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May 16, 1995


Appeal from Circuit Court of DeWitt County. No. 90CF83. Honorable John P. Shonkwiler, Judge Presiding.

Petition for Rehearing Denied June 6, 1995. As Corrected July 19, 1995.

Honorable Frederick S. Green, J., Honorable Robert W. Cook, J., Concurring, Honorable Robert J. Steigmann, J., Specially Concurring

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

In June 1991, a jury convicted defendant Ronald W. Sturgeon of first degree murder, and the trial court later sentenced him to 50 years in prison. Defendant appealed, challenging only his sentence, and in February 1992 this court affirmed. People v. Sturgeon (1992), 224 Ill. App. 3d 1113, 205 Ill. Dec. 978, 644 N.E.2d 534 (unpublished order under Supreme Court Rule 23).

In July 1992, defendant filed a pro se petition pursuant to section 2-1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2-1401), seeking to vacate his conviction and sentence. After the State moved to dismiss, defendant obtained leave of court to file an amended section 2-1401 petition. In June 1993, the court conducted a hearing on the amended pro se petition, heard arguments from the parties (defendant appearing pro se), and denied it. In its written order, the court explained its denial as follows:

"Defendant failed to show coercion, duress, mistake or ignorance of any material fact which was unknown [but discoverable] to defendant or his counsel at trial *** by the exercise of due diligence and [which would provide the basis upon] which the conviction would not have been entered."

Defendant appeals but does not challenge the trial court's rejection of his section 2-1401 petition on its merits. Instead, defendant argues that "the trial court erred in considering [his] petition as it was styled rather than determining that the substance of the petition indicated that it was arguable under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.)." For reasons we explain, we affirm.

We agree with defendant to the extent that he contends that the circuit court should have given some consideration to the provisions of the Act. Although that requirement is not readily apparent, we conclude that the decision in People ex rel. Palmer v. Twomey (1973), 53 Ill. 2d 479, 292 N.E.2d 379, from which the supreme court has never receded, the history behind the enactment of the Act, and an amendment to the Act creating section 122-2.1 of the Act (see Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122-2.1) make that requirement when an uncounseled person seeks to attack his or her criminal conviction under section 2-1401 of the Code (writ of error coram nobis) or section 10-101 of the Code (habeas corpus) (735 ILCS 5/10-101 (West 1992)).

Section 122-1 of the Act (725 ILCS 5/122-1 (West 1992)) explains that the Act concerns only claims of violations of constitutional rights and section 122-2.1(a)(2) of the Act permits a circuit court to summarily dismiss a petition filed under the Act which "is frivolous or *** patently without merit" (725 ILCS 5/122-2.1 (a)(2) (West 1992)). Thus, we conclude that the consideration under the Act which a circuit court must give to a petition under section 2-1401 of the Code or a habeas corpus petition ends when the circuit court determines that the petition does not allege a violation of a constitutional right or that any such allegation "is frivolous or patently without merit."

Here, the petition made general allegations of violations of various of defendant's constitutional rights and recited the evidence at trial. The only specific claim defendant made was that he was under the influence of Valium when he testified. The record at trial, which was properly before the circuit court and is now before us, indicates that defendant's use of Valium at that time was discussed in his testimony. The record thus shows that this issue could not be used again under the Act. ( People v. Valadez (1974), 17 Ill. App. 3d 499, 502, 308 N.E.2d 253, 254-55.) The petition was both "frivolous" and "patently without merit" as a matter of law. No relief could have been obtained under the Act. As no contention is made that the petition was otherwise sufficient under section 2-1401 of the Code, the circuit court properly dismissed the petition. See People v. Berland (1978), 74 Ill. 2d 286, 313-14, 385 N.E.2d 649, 661-62, 24 Ill. Dec. 508.

In Twomey, a person convicted of two counts of felony theft and sentenced to prison filed a pro se petition for a writ of habeas corpus (Ill. Rev. Stat. 1971, ch. 65, par. 22) alleging deprivation of his constitutional right to counsel at a preliminary hearing and arraignment. He also alleged that the indictment upon which he was convicted was defective. In addition, he filed a motion for leave to appeal as a poor person, supported by affidavit, alleging he could not afford counsel. Without responding to the motion, the circuit court struck the complaint upon the State's motion.

On appeal to the supreme court, the parties disputed whether the circuit court should have tendered the petitioner counsel before ruling upon his habeas corpus petition. The supreme court noted that the petitioner was no longer incarcerated and that the dismissal of the petition for writ of habeas corpus was not res judicata. Accordingly, the court affirmed but entered into a substantial discussion as to how the circuit court should have handled the petition.

The Twomey court first noted that in People ex rel. Haven v. Macieiski (1967), 38 Ill. 2d 396, 398, 231 N.E.2d 433, 434, and People ex rel. Lewis v. Frye (1969), 42 Ill. 2d 58, 60, 245 N.E.2d 483, 484-85, it had held that trial courts faced with pro se petitions for writs of habeas corpus could have treated the documents presented as petitions under the Act but were not required to do so. ( Twomey, 53 Ill. 2d at 482-83, 292 N.E.2d at 381-82.) The court then decided that those decisions were "not in harmony" with its decision in People v. Slaughter (1968), 39 Ill. 2d 278, 235 N.E.2d 566, which "dealt with the question of ...

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