Appeal from the Circuit Court of Cook County. Honorable Michael B. Bolan, Judge Presiding.
The opinion of the court was delivered by: Justice Burke
Defendant Terrance Mack appeals from an order of the circuit court summarily dismissing his "Motion for Reconsideration of Denial of Post-conviction Petition/Successive Petition for Relief" brought pursuant to the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq. (West 1998). On appeal, defendant contends that procedural bars, such as untimeliness and the fact that this is a successive post-conviction petition, should not bar his claim, that his petition set forth the gist of a constitutional claim based on newly discovered evidence showing his actual innocence, and that Public Act 83-942 (Pub. Act. 92-942, eff. November 23, 1983) violates the single subject rule of article IV, section 8, of the Illinois Constitution (Ill. Const. 1970, art. IV, §8). For the reasons set forth below, we reverse and remand.
Defendant, along with Richard Terrell and Adrian Hennon, were charged with first degree murder, attempted first degree murder, armed violence, and aggravated battery following a drive-by shooting that resulted in the death of one individual and injury to a second. The facts of the incident are set out in our opinion affirming defendant's convictions and sentences on direct appeal (People v. Mack, 238 Ill. App. 3d 97, 606 N.E.2d 165 (1992)) and only those facts relevant to our decision in the instant case are recited here.
Defendant and Hennon were tried simultaneously by separate juries. At defendant's trial, the State maintained that defendant had fired the shots, Terrell was in the backseat of the car, and Hennon was driving the car from which the shots were fired. Defendant maintained that he was not in the car at the time of the incident. Defendant called Hennon to testify on his behalf, but Hennon refused to testify, invoking his right to remain silent pursuant to the fifth amendment. Hennon had previously given an oral statement to the police following his arrest in which he stated that Terrance Hill was the shooter and that he had told the police that defendant was not the shooter. Defendant attempted to admit Hennon's oral statement at his trial, but the trial court denied his request, concluding that the statement was unreliable. Defendant testified on his own behalf and stated that he was not in the car at the time of the shooting and he only entered the car subsequent to the shooting, at which time the group was stopped and arrested.
Defendant was found guilty of all charges and, on November 3, 1989, he was sentenced to concurrent terms of 60 years' imprisonment for first degree murder, 30 years' imprisonment for armed violence, and 30 years' imprisonment for attempted murder. Hennon was also found guilty and sentenced to 40 years' imprisonment for first degree murder, 20 years' imprisonment for attempted murder, and 20 years' imprisonment for armed violence. Subsequent to defendant's trial, on January 12, 1990, Terrell pled guilty to first degree murder and attempted murder in exchange for a sentence of 22 years' imprisonment and 10 years' imprisonment for the respective offenses.
On direct appeal, defendant contended that the trial court erred in refusing to introduce Hennon's oral statement. We affirmed the trial court (Mack, 238 Ill. App. 3d at 103) and the supreme court denied defendant's petition for leave to appeal (People v. Mack, 148 Ill. 2d 649, 610 N.E.2d 1271 (1992)). Subsequently, defendant filed for habeas corpus relief in the federal district court, which the court denied (Mack v. Peters, No. 93 C 2053 (N.D. Ill. 1994)), and the Seventh Circuit Court of Appeals affirmed (Mack v. Peters, 80 F.3d 230 (7th Cir. 1996)).
On November 4, 1996, a post-conviction petition was filed on behalf of defendant by attorney James Payonk, Jr. On December 6, the trial court summarily dismissed the petition on the bases that it was untimely and raised issues that were barred under principles of res judicata since they had been addressed on direct appeal. On July 1, 1997, counsel's subsequent motion to vacate the summary dismissal was denied and, on September 19, counsel filed a "Motion for Leave to Appeal." On February 17, 1999, defendant was advised by the clerk of the appellate court, in response to his request as to the status of his appeal, that no appeal had been filed on his behalf.
On October 12, 1999, defendant filed the pro se successive post-conviction petition currently before this court, alleging newly discovered evidence in the form of a March 9, 1998, affidavit of Terrell that demonstrated defendant's actual innocence because Terrell averred that defendant was not present at the time of the shooting. Defendant also alleged that his delay in filing this post-conviction petition was not due to his culpable negligence, but rather due to the failure of his attorneys to do things correctly and timely. Defendant further alleged that he was placed in segregation from December 1997 until June 1998. At this time, he was transferred to another facility where he remained in 24-hour isolation until December 1998. Defendant maintained that because of the segregation and the fact he did not receive adequate assistance from the prison's legal staff, the delay in filing this petition should not have been held against him. Specifically, defendant stated that he was denied access to the court by the failure of the Illinois Department of Corrections to provide him with the meaningful assistance of trained personnel. Lastly, with respect to procedural matters, defendant alleged that any tardiness in filing his post-conviction petition would have been avoided if his counsel on direct appeal had exhausted state remedies before proceeding in the federal court. Based on the above, defendant asked the trial court to consider his successive petition.
The trial court summarily dismissed defendant's petition without stating any reason or basis for doing so and this appeal followed.
I. Propriety of Summary Dismissal
There are three levels or stages of review under the Act. People v. Coleman, 183 Ill. 2d 366, 379-82, 701 N.E.2d 1063 (1998). At the first stage, referred to as summary dismissal, the trial court reviews only the allegations of the post-conviction petition, without any additional input from the State or the defendant. People v. Scullark, 325 Ill. App. 3d 876, 879, 759 N.E.2d 565 (2001). At this stage,
"[i]f *** the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order." ...