Appeal from the Circuit Court of Williamson County. No. 98-CF-460. Honorable John Speroni, Judge, presiding.
The opinion of the court was delivered by: Justice Welch
Rule 23 order filed August 31, 2004; Motion to publish granted September 30, 2004.
Following a bench trial in the circuit court of Williamson County, the defendant, Anthony Newbolds, was convicted of home invasion and, on April 11, 2000, was sentenced to a term of imprisonment of 22 years. His conviction and sentence were affirmed by this court on direct appeal. People v. Newbolds, 325 Ill. App. 3d 192 (2001). In that appeal, the defendant raised a single issue-the applicability of Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435, 120 S.Ct. 2348 (2000), to truth in sentencing.
On May 31, 2002, the defendant, acting pro se, filed the first of two petitions pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2000)). The petition was 72 pages long and raised a myriad of issues. It was subsequently amended, pro se, adding an additional argument.
On July 1, 2002, the circuit court of Williamson County dismissed the petition as frivolous and patently without merit, pursuant to section 122-2.1(a)(2) of the Act (725 ILCS 5/122-2.1(a)(2) (West 2000)). The trial court specifically found that the defendant had not "met his burden of making a substantial showing" of a denial of his constitutional rights and that the issues raised in the petition either were raised and decided in the defendant's direct appeal and were therefore res judicata or could have been raised in the direct appeal but were not and were therefore waived. After the denial of his motion to reconsider the dismissal of his post-conviction petition, the defendant filed a notice of appeal.
While the appeal from the dismissal of his first post-conviction petition was pending, the defendant filed, on January 22, 2003, a second pro se post-conviction petition, asserting, among other things, that the dismissal of the first petition on waiver and res judicata grounds had been improper. This second petition was 152 pages long and, like the first one, was verified.
On February 5, 2003, the circuit court of Williamson County dismissed the second post-conviction petition as frivolous and patently without merit. The trial court specifically found that the defendant had not "met his burden of making a substantial showing" of a deprivation of his constitutional rights. After the denial of his motion to reconsider, the defendant also appealed the dismissal of his second post-conviction petition.
On this court's own motion the two appeals have been consolidated for review. In his brief on appeal, the defendant points out that the second post-conviction petition raises no substantive claims independent of those contained in the first petition. Accordingly, the defendant states that on appeal he challenges only the dismissal of the first post-conviction petition, urging that both bases for the trial court's dismissal were erroneous.
Our review of the circuit court's dismissal of a post-conviction petition pursuant to section 122-2.1(a)(2) of the Act is de novo. People v. Edwards, 197 Ill. 2d 239, 247 (2001). We are free to substitute our own judgment for that of the circuit court in order to formulate the legally correct answer. Edwards, 197 Ill. 2d at 247.
A post-conviction petition is properly dismissed pursuant to section 122-2.1(a)(2) of the Act if the petition is found to be "frivolous" or "patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2000). A post-conviction petition is considered frivolous or patently without merit only if the allegations of the petition, taken as true and liberally construed, fail to present the " 'gist of a constitutional claim.' " Edwards, 197 Ill. 2d at 244 (quoting People v. Gaultney, 174 Ill. 2d 410, 418 (1996)). The "gist" standard is a low threshold, and to set forth the gist of a constitutional claim, the post-conviction petition need only present a limited amount of detail and need not set forth the claim in its entirety. Edwards, 197 Ill. 2d at 244. Further, the petition need not include legal arguments or citations to legal authority. Edwards, 197 Ill. 2d at 244. Accordingly, at this first stage of proceedings, the defendant need not make a substantial showing of a constitutional violation but need only present the gist of a constitutional claim without legal argument or citation to legal authority. Edwards, 197 Ill. 2d at 246-47. If the defendant passes this initial hurdle of presenting the gist of a constitutional violation, he is entitled to the appointment of counsel, who can amend the petition to meet the higher hurdle of making a substantial showing of a constitutional violation. 725 ILCS 5/122-4 (West 2000).
In Edwards, 197 Ill. 2d at 246-47, the Illinois Supreme Court made it clear that, at the first stage of post-conviction proceedings, the petition need only present the gist of a constitutional claim in order to proceed to the second stage of proceedings, at which the State is required to answer or move for a dismissal. 725 ILCS 5/122-5 (West 2000). At this second stage, the court must determine whether the petition and any accompanying documentation make a substantial showing of a constitutional violation. Edwards, 197 Ill. 2d at 246. If no such showing is made, the petition is dismissed; if the requisite showing is made, the petition is set for an evidentiary hearing. Edwards, 197 Ill. 2d at 246. The supreme court made it clear that at the first stage of proceedings it is inappropriate to consider whether a substantial showing of a constitutional violation has been made. Edwards, 197 Ill. 2d at 246. At this first stage, the trial court may only consider whether the petition states the gist of a constitutional claim. See also People v. Coleman, 183 Ill. 2d 366, 380-81 (1998).
Because in the instant case the circuit court appeared to have employed the inappropriate standard of a substantial showing of a constitutional claim, rather than the lighter burden of presenting a gist of a constitutional violation, we reverse the dismissal of the defendant's post-conviction petition on this basis.
We must still address the propriety of the trial court's dismissal based on the doctrines of waiver and res judicata. While the supreme court has not definitively spoken on this issue, this court has. In People v. McCain, 312 Ill. App. 3d 529 (2000), the defendant filed a post-conviction petition, which the trial court summarily dismissed on the grounds of untimeliness, waiver, and res judicata. We reversed on the ground that the trial court was limited to determining if the petition was frivolous or patently without merit and that, in dismissing on the basis of untimeliness, waiver, and res judicata, the trial court impermissibly had taken on the adversarial role of prosecutor. Timeliness, waiver, and res judicata are procedural bars to proceeding on the petition and are properly raised by the prosecutor in a motion to dismiss, not by the trial court at the first stage of post-conviction proceedings. As we stated: "A petition's untimeliness ...