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People v. Shevock

November 12, 2004

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
PAUL A. SHEVOCK, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Champaign County. No. 00CF78. Honorable Jeffrey B. Ford, Judge Presiding.

The opinion of the court was delivered by: Justice Appleton

PUBLISHED

Defendant, Paul A. Shevock, filed a pro se petition for post-conviction relief, and on the authority of People v. Collins, 202 Ill. 2d 59, 782 N.E.2d 195 (2002), the trial court summarily dismissed the petition as "frivolous and patently without merit." See 725 ILCS 5/122-2.1(a)(2) (West 2002). Simultaneously, the court sent a letter to Centralia Correctional Center, where defendant was incarcerated, notifying the warden of its finding that the petition was frivolous. See 730 ILCS 5/3-6-3(d) (West 2002). After a hearing before the adjustment committee, the Department of Corrections (DOC) revoked six months of good-conduct credit as punishment for the offense of "frivolous pleading" (20 Ill. Adm. Code §504, app. A, No. 212 (2003) (see 27 Ill. Reg. 6214, 6295, eff. May 1, 2003)). See 730 ILCS 5/3-6-3(d) (West 2002).

Defendant appeals on two grounds. First, he argues that in People v. Boclair, 202 Ill. 2d 89, 789 N.E.2d 734 (2002), the supreme court overruled Collins sub silentio (see Boclair, 202 Ill. 2d at 127, 789 N.E.2d at 756 (McMorrow, J., specially concurring)) and that by the standards of Boclair and People v. Edwards, 197 Ill. 2d 239, 757 N.E.2d 442 (2001), his petition passes muster in the first stage of a post-conviction proceeding. Second, he argues the trial court deprived him of due process by mailing the finding of frivolity to DOC without first giving him an opportunity to contest the finding.

We need not decide whether Boclair overruled Collins, for defendant's post-conviction petition is so vague, so conclusory, and so utterly bereft of any factual detail whatsoever that it falls short of the liberal pleading standards of Boclair and Edwards. Due process gave defendant a right to a hearing before DOC, not the trial court, and if the hearing before DOC fell short of due process, defendant should have sued DOC. Therefore, we affirm the trial court's judgment.

I. BACKGROUND

Defendant filed his petition for post-conviction relief on October 3, 2003. All of the alleged constitutional violations are in paragraph 5 of the petition, which states:

"Petitioner[']s constitutional rights were violated under the [f]ourth, [s]ixth[,] and [f]ourteenth [a]mendment[s] [(U.S. Const., amends. IV, VI, XIV)]. In that petitioner did not receive the effective assistance of trial counsel[;] in that said counsel refused to challenge the [S]tate's knowing use of perjured affidavits to obtain search warrants; the [S]tate's introduction of evidence which had been unlawfully obtained; and [trial counsel] further refused to cross-examine a key prosecution witness[,] in direct and willful violation of the petitioner's confrontation rights; and refused to challenge the [S]tate's tender of jury instructions which unlawfully shifted the burden of proof to the defendant. Petitioner was further denied the effective assistance of appellate counsel, in that said counsel refused to raise the foregoing meritorious issues, despite her awareness of the same and despite petitioner's insistence that she do so."

The petition elaborates no further.

The affidavit reads as follows:

"I, Paul Shevock, being first duly sworn, under oath, do hereby depose and state that I am in [sic] the petitioner in the above entitled cause, that I have read the foregoing petition for [post-conviction] relief and have knowledge of its contents, that I am competent to testify and if called would so testify, and that all statements set forth herein are true and correct in substance and in fact."

On October 30, 2003, the trial court held the affidavit was merely "a verification and *** not a true affidavit under the laws of the State of Illinois." "Each and every allegation in *** paragraph [5 of the petition] is a conclusion," the court said, with "nothing attached" to the petition and no explanation. Defendant never explained, for example, whom his trial counsel should have cross-examined and what the cross-examination might have accomplished. He never specified which jury instructions were incorrect. Finding defendant's "claims [to be] frivolous and patently without merit," the court summarily dismissed the post-conviction petition.

Also on October 30, 2003, the trial court mailed the warden a letter stating that plaintiff's post-conviction petition "was determined to be frivolous ***. I am informing you of this pursuant to [section 3-6-3(d) of the Unified Code of Corrections (730 ILCS 5/3-6-3(d) (West 2002))] with regard to the inmate[']s[] good[-]conduct credits." The adjustment committee found defendant guilty of offense No. 212, "Frivolous Lawsuit" (20 Ill. Adm. Code §504, Appendix A, No. 212 (2003) (see 27 Ill. Reg. 6214, 6295, eff. May 1, 2003)) and recommended the maximum penalty of revocation of six months' good-conduct credits (20 Ill. Adm. Code §504, Table A, No. 212 (2003) (see 27 Ill. Reg. 6214, 6307, eff. May 1, 2003)).

On November 14, 2003, defendant filed a "Motion for Rehearing" (actually, a motion for reconsideration, since there had never been a hearing), in which he argued that Boclair had overruled Collins and the trial court had therefore erred in summarily dismissing his post-conviction petition. On November 17, 2003, the court denied the motion on the ground that reconsideration of the ...


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