Appeal from the Circuit Court of Lake County. No. 90-CF-2176 Honorable James K. Booras, Judge, Presiding.
The opinion of the court was delivered by: Justice Kapala
Defendant, Theodore Knox, appeals from the denial of his "motion to vacate unconstitutional and void judgments." On appeal, he argues that his motion was in substance a petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2000)) and that the trial court erred in considering the State's argument before deciding whether the "post-conviction petition" was frivolous or patently without merit. We affirm.
Defendant's convictions stemmed from the shooting deaths of Santos Escobedo and Domingo Garcia, Jr. A jury found defendant guilty of two counts of first-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9--1(a)(3) (now 720 ILCS 5/9--1(a)(3) (West 2000))) and two counts of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A--2 (now 720 ILCS 5/ 33A--2(a) (West 2000))). The trial court vacated the armed violence convictions and on the murder convictions imposed a mandatory life sentence pursuant to section 5--8--1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005--8--1(a)(1)(c) (now 730 ILCS 5/5--8--1(a)(1)(c)(ii) (West 2000))). Defendant appealed, and this court affirmed. People v. Knox, 241 Ill. App. 3d 205 (1993).
In 1993, defendant filed a pro se petition seeking relief under section 2--1401 of the Code of Civil Procedure (735 ILCS 5/2--1401 (West 1992)) or alternatively under the Act. The petition alleged that the State and its key occurrence witness misled the jury about the plea agreement that led to the witness's testimony. The trial court dismissed the petition as frivolous and patently without merit, and this court affirmed. People v. Knox, No. 2--93--0763 (1995) (unpublished order under Supreme Court Rule 23).
On June 21, 2001, defendant filed a "motion to vacate unconstitutional and void judgments" alleging that his mandatory life sentence violated the rule in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Defendant's motion did not cite or refer to the Act. During the preliminary hearing, the trial court stated, "Defendant has filed a motion. I will continue it *** to give the State an opportunity to review it." During the hearing on the motion the following exchange occurred:
"THE COURT: I don't think this is a post-conviction petition. I have not seen anything with respect to that. It's just a motion.
MR. NEWSOME [assistant State's Attorney]: Just a motion, Judge. I think it would be not timely.
THE COURT: What's the State's position?
MR. NEWSOME: Judge, we would say it is not a recognized motion of any type. It's past the two-year time limit, and as a post-conviction petition, he hasn't done the necessary required conditions for filling [sic] *** under  ILCS 5/122-1(b), which would be filing a petition with a copy verified by affidavit and serving that copy on the State's Attorney's Office, and he must specify in the petition heading that it's filed under the post-conviction petition section. He has not done that.
THE COURT: Even so, I don't think Apprendi applies. The defendant received a life sentence for killing two persons, and that fact was considered by the jury.
MR. NEWSOME: That would also be correct.
THE COURT: Even so, I am not saying it is the right motion. I will dismiss it based upon that."
The trial court denied the motion, and defendant timely appealed.
The Act provides a remedy for defendants whose convictions are tainted by a substantial denial of their constitutional rights. People v. Cheeks, 318 Ill App. 3d 919, 921 (2001). It prescribes a three-step process for adjudicating post-conviction petitions. During the first step, the trial court must determine, within 90 days after the petition is filed and docketed, whether the petition is frivolous or patently without merit. 725 ILCS 5/122--2.1(a)(2) (West 2000). The trial court evaluates the ...