Appeal from the Circuit Court of St. Clair County. No. 94-CF-529 Honorable Lloyd A. Karmeier and Honorable Robert P. LeChien, Judges, presiding.
The opinion of the court was delivered by: Presiding Justice Goldenhersh
Following a jury trial in the circuit court of St. Clair County, a jury convicted defendant, Keith L. Williams, of first-degree murder (720 ILCS 5/9-1(a) (2) (West 1992)). Defendant was sentenced to 50 years in the Department of Corrections. Defendant, through his appointed attorney, filed a timely notice of appeal from his conviction and sentence. While defendant's direct appeal was pending, defendant filed a pro se post-conviction petition, alleging, inter alia, that a photographic lineup was suggestive and prejudicial. Defendant's pro se post-conviction petition was dismissed with prejudice. Defendant filed a notice of appeal from the summary dismissal of his post-conviction petition, and an attorney was appointed to represent defendant in this appeal. The issues we are asked to address are (1) whether the trial court erred in summarily dismissing defendant's post-conviction petition with prejudice where it was filed prior to the filing of a brief on direct appeal and (2) whether the trial court further erred in summarily dismissing the pro se post-conviction petition which set forth a claim that defendant's rights had been violated with regard to the photographic lineup. We reverse and remand.
On June 25, 1994, defendant was charged by criminal complaint with the June 23, 1994, murder of Gary L. Triplett. Ultimately, defendant was tried and convicted in a jury trial that ended on August 9, 1995. On November 23, 1995, defendant filed a notice of appeal from his conviction for first-degree murder. The Office of the State Appellate Defender was appointed to represent defendant in his direct appeal.
On September 13, 1996, defendant filed a pro se post-conviction petition, alleging, inter alia, that he was denied a fair trial on the basis that the photographic lineup utilized in this case was suggestive and prejudicial. At the time defendant filed his post-conviction petition, a brief had yet to be filed in his direct appeal. On October 16, 1996, the circuit court summarily dismissed defendant's post-conviction petition, stating in pertinent part as follows:
"At this time an appeal is pending in the Appellate Court of Illinois, Fifth District, and the postconviction petition is pending therein. The Court finds that the petition is patently without merit and dismisses same with prejudice for the reason that the allegations in the petition relate to issues that should be addressed on appeal."
On November 7, 1996, defendant filed a timely notice of appeal from the above order.
While the instant appeal was pending, a panel attorney of the Appellate Defender's office filed a motion to withdraw from the direct appeal. However, that motion was later withdrawn and a brief was filed in the direct appeal. The issues in the direct appeal were (1) whether the trial court committed error by failing to appoint counsel to represent defendant during proceedings on his pro se posttrial motion, (2) whether the posttrial motion was given proper consideration by the trial court, and (3) whether defendant was given proper credit against his sentence for time served in Missouri prior to transfer to Illinois. We affirmed defendant's conviction in a Rule 23 order (166 Ill. 2d R. 23) but remanded for a recalculation of the sentence credit. People v. Williams, No. 5-95-0884 (December 31, 1997). In this appeal, we address the dismissal of defendant's pro se post-conviction petition.
The first issue we are asked to address is whether the trial court erred in summarily dismissing defendant's post-conviction petition with prejudice. Defendant contends that the trial court erred because it did so on the basis that a direct appeal was pending at the time the post-conviction petition was filed. Defendant argues that there is no procedural bar to filing a post-conviction petition prior to the filing of the brief on direct appeal. Defendant asserts that instead of dismissing his petition with prejudice, the trial court should have either held it in abeyance pending the direct appeal or dismissed it without prejudice, which would have allowed him to refile once the brief on direct appeal was filed. The State responds that the trial court did not dismiss defendant's post-conviction petition on the basis that a direct appeal was pending but rather dismissed it because it found that it was "patently without merit." According to the State, since defendant's post-conviction petition raised an issue that could have been raised on direct appeal, the trial court correctly dismissed the petition as being without merit because the appellate decision on direct appeal would have been res judicata if the issue were raised in the direct appeal or the issue would have been waived if not raised. Moreover, the State contends that the lineup issue lacked merit and that defendant has failed to show prejudice because there were witnesses at trial who identified defendant as the person who shot the victim. After careful consideration, we agree with defendant.
Initially, we must decide whether the summary dismissal order incorrectly terminated defendant's post-conviction petition. The summary dismissal order is subject to plenary review by this court. See People v. Coleman, 183 Ill. 2d 366, 701 N.E.2d 1063 (1998). After reviewing the recent history of the standard of review, the court concluded that the question of the sufficiency of a petition's allegations is a question of law at this initial stage and, as such, is a "legal inquiry requiring plenary appellate review." Coleman, 183 Ill. 2d at 388, 701 N.E.2d at 1075.
The Post-Conviction Hearing Act (the Act) sets forth the following time requirements for filing a petition:
"(c) No proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or more than 45 days after the defendant files his or her brief in the appeal of the sentence before the Illinois Supreme Court (or more than 45 days after the deadline for filing of the defendant's brief with the Illinois Supreme Court if no brief is filed) or 3 years from the date of conviction, whichever is sooner, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence." 725 ILCS 5/122-1(c) (West 1996).
The Act (725 ILCS 5/122-1 et seq. (West 1996)) does not contain a provision barring a trial court from considering a post-conviction petition while a direct appeal of a defendant's criminal conviction is pending. It has been held that in the absence of such a provision barring consideration of a post-conviction petition while a direct appeal is pending, a trial court's dismissal of a petition without an evidentiary hearing must be based upon ...