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People v. Shipp

September 5, 2007

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JAMIE L. SHIPP, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Mason County No. 95CF44 Honorable Thomas L. Brownfield, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Steigmann

Published opinion

In December 1995, defendant, Jamie L. Shipp, pleaded guilty to first degree murder and three counts of aggravated arson (720 ILCS 5/9-1(a)(1), 20-1.1 (West 1994)). The trial court later sentenced him to 50 years in prison on the first degree murder conviction and 25 years in prison on each of the aggravated arson convictions, with those sentences to be served concurrently.

In December 2005, defendant pro se filed a petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-8 (West 2004)). In March 2006, the trial court dismissed the petition, upon finding that it was frivolous and patently without merit. Defendant appeals, and we affirm.

I. BACKGROUND

In exchange for defendant's guilty plea, the State dismissed the other counts of first degree murder that were based upon the deaths of the two other victims who died in the trailer fire defendant pleaded guilty to setting. Although in March 1996 defendant filed pro se a motion to withdraw his guilty plea and vacate sentence, he later withdrew that motion and never filed an appeal.

In May 1997, defendant pro se filed a "petition for relief from judgment" that he described as "pursuant to the Illinois Post-Conviction Act of the Illinois Revised Statutes." In that petition, defendant alleged that he had been denied his right to effective assistance of counsel because his attorney had failed to investigate the terms of the plea agreement before advising him to plead guilty.

In July 1997, defendant pro se filed a second "petition for relief from judgment" that he again characterized as "pursuant to the Illinois Post-Conviction Act of the Illinois Revised Statutes." This petition also alleged that his trial counsel was ineffective for failing to investigate the terms of the plea agreement before advising defendant to plead guilty. Later in July 1997, the trial court dismissed defendant's petitions, upon finding that they were frivolous and patently without merit. Defendant did not appeal.

In December 2005, defendant pro se filed a petition for relief "pursuant to the Illinois Post-Conviction Act, 725 ILCS 5/122-1, et seq." In March 2006, the trial court dismissed defendant's petition, upon finding that it was frivolous and patently without merit. In so finding, the court noted that defendant had previously filed post-conviction petitions under the Act, which the court had previously dismissed.

This appeal followed.

II. DEFENDANT'S FAILURE TO COMPLY WITH SECTION 122-1(f) OF THE ACT

Defendant argues that the trial court erred by dismissing his December 2005 post-conviction petition at the first stage of the post-conviction proceedings because (1) the petition presented a gist of a meritorious claim of actual innocence; (2) the court applied the wrong standard to judging at this stage whether defendant's petition made a substantial showing of a violation of constitutional rights; (3) the petition should not be considered as a successive post-conviction petition because the two previous petitions were labeled motions for relief from judgment; and (4) waiver and res judicata should not apply or, alternatively, those principles should yield to a doctrine of fundamental fairness. We need not consider any of defendant's arguments because his petition fails to comply with section 122-1(f) of the Act.

In People v. DeBerry, 372 Ill. App. 3d 1056, 1059, 868 N.E.2d 382, 383-84 (2007), this court recently addressed section 122-1(f) of the Act, which the legislature added to the Act on January 1, 2004. The first sentence of subsection (f) reads as follows: "Only one petition may be filed by a petitioner under this [a]rticle without leave of the court." 725 ILCS 5/122-1(f) (West 2004). We explained the import of this language in DeBerry, as follows:

"[S]section 122-1(f) unequivocally requires that a defendant must obtain leave of court before filing a successive petition, and if a defendant fails to do so, the court, whether sua sponte or on the State's motion, should dismiss any such petition. In taking this action, the court need not--and should not--concern itself with the merits of any claims, contentions, or arguments that the petition contains. Section 122-1(f) constitutes a procedural hurdle to ...


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