Appeal from the Circuit Court of Winnebago County. No. 93-CF-2567 Honorable Gerald F. Grubb, Judge, Presiding.
The opinion of the court was delivered by: Justice Byrne
Defendant, Deon L. Pearson, appeals from the dismissals of his petition for relief under section 2--1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2--1401 (West 2000)) and of his petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2000)). He contends that the dismissal of his section 2--1401 petition under the procedure set out in the Act was reversible error. We agree and thus reverse the dismissal of his section 2--1401 petition but affirm the dismissal of his petition under the Act.
On June 6, 1994, defendant pleaded guilty to first degree murder (720 ILCS 5/9--1(a)(2) (West Supp. 1993)) pursuant to a plea bargain in which the State agreed to recommend a sentence cap of 40 years. The admonishments the court gave defendant did not include the information that he would be subject to three years' mandatory supervised release. See 730 ILCS 5/5--8--1(d)(1) (West 1992). The court sentenced him to 34 years' imprisonment. On direct appeal, defendant argued that the court abused its discretion in imposing sentence by relying on "the gravity of the offense" as an aggravating factor. This court affirmed the sentence. People v. Pearson, No. 2--94--1299 (1996) (unpublished order under Supreme Court Rule 23).
On September 22, 1997, defendant mailed to the trial court a document entitled "petition for post-conviction relief and as an alternative for time cut." He argued, inter alia, that the court had failed to properly consider his rehabilitative potential in imposing sentence. The docket sheet states that the trial court "heard and denied" the petition on November 12, 1997, with no parties present, and that the clerk sent a copy of the docket entry to defendant. No written order is present in the record, and we find no entry for this day in the report of proceedings.
On August 12, 2002, defendant mailed to the trial court a document entitled "Petition for Relief from Judgment." The petition requested relief pursuant to section 2--1401 of the Code on the basis that the court had not adequately admonished defendant regarding his potential sentence because it did not inform him that he would have to serve 3 years' mandatory supervised release after his 34 years in prison. The trial court summarily dismissed the petition, finding, inter alia, that it was "in the nature of a Petition for Post-Conviction Relief," that defendant was precluded from filing a second petition, and that his total sentence including the mandatory supervised release did not exceed the agreed cap. This order was mailed to defendant by certified mail, and the signed receipt card was placed in the record. Defendant appeals (No. 2--02--1097), arguing that the summary dismissal was improper.
On January 21, 2003, defendant filed in the trial court a document entitled "Amended Petition for Post-Conviction Relief or in the Alternative for Sentence Reduction." He alleged that the court had lost his first petition, and he contended that the court had considered improper aggravating factors in imposing sentence. On January 30, 2003, the trial court "denie[d] the defendant's request for relief & str[uck] it as well as dismisse[d] it." Defendant appeals this order as well (No. 2--03--0205), but presents no argument for the reversal of the order. We thus affirm the trial court's judgment in that appeal, and we consider only the claim in appeal No. 2--02--1097.
There is no question but that the trial court erred in treating defendant's petition under section 2--1401 of the Code of Civil Procedure as one under the Post-Conviction Hearing Act. Whether the trial court complied with the applicable procedure is a question of law and our review is de novo. See Woods v. Cole, 181 Ill. 2d 512, 516 (1998). The Act provides for an initial review in which the trial court determines, without input from either party, whether the petition is frivolous or patently without merit. If the court so finds, it summarily dismisses the petition without opportunity for the defendant to answer the trial court's contentions or amend the petition. See People v. Bouzidi, 332 Ill. App. 3d 87, 90 (2002). In People v. Gaines, 335 Ill. App. 3d 292, 295-96 (2002), we held that summary dismissal is a procedure applicable only to petitions under the Act; it cannot be applied to petitions under section 2--1401 of the Code. No equivalent to summary dismissal exists in the Code.
In Gaines, we reversed the procedurally irregular dismissal of a prisoner's section 2--1401 petition. The trial court had appointed the public defender to represent the defendant and had set a hearing date. The State filed a "motion to reconsider," the body of which addressed the merits of the defendant's petition. Gaines, 335 Ill. App. 3d at 293. At the hearing on the motion, the State argued that the court could dismiss the petition sua sponte, and without opportunity for either party to respond, as if it were a post-conviction petition. The public defender stated he had no prior notice of the motion and was unprepared to respond, and, after argument from the State only, the trial court dismissed the petition. Gaines, 335 Ill. App. 3d at 294. Because the trial court's procedure denied the defendant any meaningful opportunity to respond to what was functionally a motion, we held that the dismissal was error. We noted the distinctness of petitions under section 2--1401 and the Act:
"Section 2--1401 and the Act both afford procedures for advancing a collateral challenge to a criminal conviction, but they are separate and distinct remedial provisions. Thus, for example, while only constitutional claims are cognizable in a post-conviction proceeding [citation], this limitation does not apply in proceedings under section 2--1401 [citation].
More importantly, the particular statutory procedures applicable to petitions under the Act do not apply to section 2--1401 proceedings. The Act instructs the trial court to independently examine a post-conviction petition within 90 days after it is filed. [Citation.] *** The court is directed to summarily dismiss the petition if the court finds that it is 'frivolous or is patently without merit.' [Citation.] *** The Act provides that after the court's summary review counsel may be appointed for indigent defendants. [Citation.] In contrast, section 2--1401 has no corresponding provision for independent examination by the trial court, nor is the trial court authorized to summarily dismiss a section 2--1401 petition. Moreover, unlike proceedings under the Act, there is no statutory basis for the appointment of counsel in a section 2--1401 proceeding." Gaines, 335 Ill. App. 3d at 295-96.
The process of judicial review of a petition under the Act--without comment by either party--is a significant and unusual departure from the adversary process. The legislature has mandated that departure in the specific context of the Act. We see no possible basis for importing such an unusual procedure into matters governed by the Code of Civil Procedure.
In Gaines, we noted that in proper proceedings on a section 2--1401 petition, the opponent of the petition must file a motion to dismiss or else answer it. Gaines, 335 Ill. App. 3d at 296. Further, "basic notions of fairness dictate that the defendant be afforded notice of, and an opportunity to respond to, any motion or responsive pleading by the State." Gaines, 335 Ill. App. 3d at 296. Here, since we reject the trial court's characterization of defendant's petition as a post-conviction petition, we must characterize the trial court's action as a sua sponte motion to dismiss. Basic notions of fairness dictate that defendant be afforded the same notice and opportunity to respond that he would have had if the State had filed the motion to dismiss. Peterson v. Randhava, 313 Ill. App. 3d 1, 12 (2000), citing English v. Cowell, 10 F.3d 434, 437 (7th Cir. 1993). The trial court's actions here resulted in a complete abrogation of the adversary process. The error could not be clearer.
The State contends that we can nevertheless affirm the dismissal of the section 2--1401 petition on the grounds that the petition was meritless and the dismissal thus did not prejudice defendant. We disagree. In Gaines, we were not faced with this issue because the record on appeal was insufficient to allow us to determine whether there was merit to the issue raised in the defendant's petition. Gaines, 335 Ill. App. 3d at 296-97. We now conclude that the proceedings by which defendant's ...