Appeal from Circuit Court of Champaign County No. 94CF783 Honorable John G. Townsend, Judge Presiding.
Steigmann, Justice Green and McCULLOUGH, JJ., concur.
The opinion of the court was delivered by: Justice Steigmann
In December 1994, defendant, Daniel B. Douglas, pleaded guilty to aggravated battery of a child (720 ILCS 5/12-4.3(a) (West 1992)). The trial court later sentenced him to 25 years in prison as a Class X offender pursuant to section 5-5-3(c)(8) of the Unified Code of Corrections (Code) (730 ILCS 5/5-5-3(c)(8) (West 1992)). Defendant appealed, and this court affirmed. People v. Douglas, No. 4-95-1003 (1997) (unpublished order under Supreme Court Rule 23).
In February 1997, defendant filed a pro se petition for post-conviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1996)), alleging that he was denied effective assistance of counsel when his trial counsel failed to advise him prior to the guilty plea hearing that he was eligible to be sentenced as a Class X offender. In March 1997, defendant filed an amended pro se petition, in which he reasserted all of the allegations set forth in his original petition and further alleged that (1) section 5-5-3(c)(8) of the Code subjected him to an impermissible double enhancement of his penalty; and (2) he was denied effective assistance of counsel when his counsel on appeal failed to challenge that section's constitutionality. The trial court subsequently dismissed defendant's petitions as frivolous and patently without merit, pursuant to section 122-2.1 of the Act (725 ILCS 5/122-2.1 (West 1996)). Defendant appeals, arguing that (1) because the court failed to rule upon his original petition within 90 days of its filing, the court lacked authority to dismiss the petition under section 122-2.1 of the Act; and (2) the court erred by ruling his petition was frivolous and patently without merit. We affirm.
I. THE TRIAL COURT'S TIMELINESS IN RULING ON DEFENDANT'S PETITION
Defendant first argues that the trial court's failure to rule on his original petition (filed February 19, 1997) within 90 days of its filing rendered the court's dismissal void. In response, the State argues that the statutory time period commenced running upon the March 6, 1997, filing of defendant's amended petition. We agree with the State.
Section 122-2.1(a) of the Act requires a trial court to which a post-conviction petition is directed, "[w]ithin 90 days after the filing and docketing of each petition[, to] examine such petition and enter an order thereon pursuant to [that] [s]section." 725 ILCS 5/122-2.1(a) (West 1996). The 90-day period set forth in section 122-2.1(a) is "mandatory and [a trial court's] order of dismissal after the end of that period must be set aside." People v. Dauer, 293 Ill. App. 3d 329, 332, 687 N.E.2d 1188, 1190 (1997).
The Act does not address the effect of a defendant's filing an amended or supplemental petition upon the 90-day period (725 ILCS 5/122-2.1 (West 1996)). Nor does it address limits on the number of amended or supplemental petitions a defendant may file. In our judgment, when, as here, a defendant files an amended or supplemental petition, the date on which the defendant filed his original petition cannot begin the running of the 90-day period under section 122-2.1(a) of the Act. To give full effect to a defendant's ability to file an amended or supplemental petition and to give the trial court the full time the legislature deemed necessary for the court to consider such petitions under section 122-2.1, we hold that a defendant's filing of any amended or supplemental petition starts the 90-day period anew, not only for the later-filed petition, but for any earlier petitions, as well. We agree with the State that to hold otherwise would allow a defendant to file an amended or supplemental petition and effectively shorten the 90-day period in which the trial court must examine and rule upon that petition. For example, under defendant's proposed construction of section 122-2.1(a), a defendant could file an amended petition on day 88 of the 90-day period, thus giving the trial court only two days to examine and rule upon the amended petition. Clearly, the legislature could not have intended such an absurd result. We note that the legislature has instead shown its intent to give trial courts more time to examine and rule upon post-conviction petitions when it amended section 122-2.1 of the Act (effective January 1, 1993) to increase the amount of time for such examination and ruling from 30 days to 90 days. See Pub. Act 87-904, eff. January 1, 1993 (1992 Ill. Laws 1747).
Contrary to defendant's contention, our decision in Dauer does not require us to reach a different result. In Dauer, this court held that the trial court violated section 122-2.1(a) of the Act when it failed to examine the defendant's petition within the 90-day statutory period. Defendant correctly points out that the defendant in Dauer filed an amended petition. However, he did so only after the State filed a motion to dismiss his petition and in response to the court's granting him an extension of time to respond to the State's motion. Dauer, 293 Ill. App. 3d at 330-31, 687 N.E.2d at 1188. Further, the precise issue we now resolve--the effect of multiple petitions upon the 90-day period of section 122-2.1 of the Act--was not even addressed in Dauer.
In the present case, the 90-day period began on March 6, 1997, the date defendant filed his amended petition. On May 27, 1997, the trial court summarily dismissed defendant's amended petition. (We note that the court, in an effort to be thorough, dismissed both defendant's original and amended petitions. Because defendant's amended petition incorporated his original petition, we refer to the court's ruling as a summary dismissal of defendant's amended petition.) No dispute exists that the court's order of dismissal was within 90 days of defendant's filing of his amended petition. Thus, we hold that the court did not violate section 122-2.1(a) of the Act (725 ILCS 5/122-2.1(a) (West 1996)).
II. POST-CONVICTION HEARING ACT
In People v. Henderson, 171 Ill. 2d 124, 131, 662 N.E.2d 1287, 1292 (1996), the supreme court discussed the general rules regarding post-conviction proceedings, as follows:
"The [Act] provides a remedy for defendants who have suffered a substantial violation of their constitutional rights at trial. [Citation.] A post-conviction proceeding is not an appeal of the underlying conviction; rather, it is a collateral attack on the trial court proceedings in which a defendant attempts to establish constitutional violations that have not been and could not have been previously adjudicated. [Citation.] The defendant bears the burden of establishing that a substantial violation of his constitutional rights occurred. [Citation.]"
For a post-conviction petition to withstand scrutiny and avoid dismissal under section 122-2.1 of the Act, it need only contain a simple statement presenting a gist of a claim for relief which is meritorious when considered in view of the record of trial court proceedings. People v. Dredge, 148 Ill. App. 3d 911, 913, 500 N.E.2d 445, 446 (1986). In People v. Lemons, 242 Ill. App. 3d 941, 946-47, 613 N.E.2d 1234, 1237-38 (1993), this court discussed analysis under section 122-2.1, as follows:
"A 'gist of a meritorious claim' is not a bare allegation of a deprivation of a constitutional right. Although a pro se defendant seeking post-conviction relief would not be expected to construct legal arguments, cite legal authority, or draft her petition as artfully as would counsel, the pro se defendant must still plead sufficient facts from which the trial court could find a valid claim of deprivation of a constitutional right. ***
*** [T]he trial court should consider the petition at the first stage [of the court's analysis] to determine whether it contains sufficient facts upon which a meritorious constitutional claim could be based." (Emphasis in original.)
It is within this context that we address defendant's claims.
III. DEFENDANT'S CLAIMS OF CONSTITUTIONAL ...