The opinion of the court was delivered by: Justice Burke
JUSTICE BURKE delivered the judgment of the court, with opinion.
Justices Freeman, Thomas, and Theis concurred in the judgment and opinion.
Justice Karmeier dissented, with opinion, joined by Chief Justice Kilbride and Justice Garman.
The primary issue presented in this case is whether, in light of section 122--1(d) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1(d) (West 2006)) and this court's decision in People v. Shellstrom, 216 Ill. 2d 45 (2005), a trial court's decision not to "recharacterize" a pleading filed by a pro se defendant as a post-conviction petition may be reviewed for error. The appellate court held that it may and, after so holding, reversed the judgment of the circuit court of Fayette County dismissing the defendant's pro se pleading and remanded the cause with instructions to recharacterize the pleading as a post-conviction petition. 389 Ill. App. 3d 238. We disagree with the appellate court's holding that a trial court's decision not to recharacterize a pro se pleading may be reviewed for error. However, we affirm the judgment of the appellate court, as modified, on other grounds.
Following a jury trial, the defendant, Jerry Stoffel, was found guilty of unlawful manufacture of a substance containing methamphetamine weighing between 400 and 900 grams, criminal synthetic drug manufacture conspiracy, and unlawful possession with intent to manufacture a controlled substance. Defendant was sentenced to 15 years' imprisonment on each offense, to run concurrently. On direct appeal, defendant's conviction and sentence for unlawful manufacture were affirmed, but his convictions and sentences for the remaining two offenses were vacated pursuant to People v. King, 66 Ill. 2d 551 (1977). People v. Stoffel, No. 5--05--0105 (2007) (unpublished order under Supreme Court Rule 23).
On October 27, 2006, while defendant's direct appeal was pending, defendant filed a "petition for relief from judgment," which was brought "pursuant to the Constitution of the United States, the Constitution of the State of Illinois," and section 2--1401 of the Code of Civil Procedure (735 ILCS 5/2--1401 (West 2006)). In this pleading, defendant contended that "waste product is not intended to be considered part of the 'substance containing methamphetamine,' and *** including the weight of such waste products to set the penalties results in an unconstitutional penalty." Defendant alleged that, in his case, waste product was improperly included in determining the weight of the substance containing methamphetamine that he was convicted of manufacturing and, therefore, his sentence was unconstitutional and void. On November 28, 2006, counsel was appointed for defendant.
On December 11, 2006, a status hearing was held before Judge Daniel Hartigan. Defendant's attorney advised the court: "This is another post-conviction petition. It's going to take considerably more work on my part." Counsel requested a continuance. In response, the State commented: "Hang on a second, until we have a little more specific information about what's going on here. My experience in the past is if we just blindly continue it for a status, nothing gets done and we waste a court appearance." The case was passed for later in the day. No further transcript of the proceedings exists but a docket entry states that the case was set for status on February 5, 2007.
On December 19, 2006, the State filed a "motion to summarily dismiss the defendant's petition for relief from judgment." In this motion, the State argued that defendant failed to allege there was newly discovered evidence or any "errors of fact" which would warrant relief under section 2--1401.
On February 5, 2007, the scheduled status hearing was held before a second judge, Judge Michael McHaney. During this hearing, the following exchange occurred:
"THE COURT: It looks like December 19, 2006, the State filed a motion to summarily dismiss defendant's petition for relief from judgment. Is this a petition for habeas corpus or a petition for post-conviction?
[Defense counsel]: Post-conviction relief, Your Honor. THE COURT: Instead, the defendant's requesting time to respond to the State?
[Defense counsel]: We are, Your Honor, and I would expect that we are probably going to be doing some fairly substantial renovations on Mr. Stoffel's post-conviction petition, which may take care of the motion to strike."
The State did not challenge defense counsel's description of defendant's filing as a post-conviction petition. The case was continued to March 21, 2007.
On March 21, 2007, defendant appeared before Judge Michael McHaney but defense counsel was not present, having undergone surgery the previous day. After the State informed the court that a response to its motion to dismiss had not yet been filed, the court inquired of defendant: "Is this a post-conviction petition, Mr. Stoffel?" Defendant responded, "Yes, sir." The court then advised: "I've made a docket entry that states defendant in DOC custody and present. [Defense counsel] surgery. [Defense counsel] to file response to State's motion to dismiss and 651--C Certificate on or before April 11th."
At a hearing held on April 11, 2007, before a third judge, Judge S. Gene Schwarm, the court inquired of defense counsel as to what he had filed in the matter and, in particular, whether he had filed a response to the State's motion to dismiss. The following colloquy then occurred:
"[Defense counsel]: I think this should be treated as a post-conviction petition, Your Honor, for all practical purposes. I have a supplement to that. I think we'll need to clarify the issues.
THE COURT: Are you in a position to file that today or you need some time to make sure that's what you want to file?
[Defense counsel]: I would file it today ***."
Again, the State did not object to defense counsel's request to treat defendant's pro se filing as a post-conviction petition. Defense counsel then filed a "Supplement to Post Conviction Petition," which alleged violations of defendant's rights under the Illinois Constitution, and a certificate pursuant to Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)), indicating he had complied with the requirements that must be met by counsel appointed under the Act. The trial court also granted defense counsel seven days to file a response to the State's motion to dismiss and continued the matter to May 2, 2007.
On April 18, 2007, defense counsel filed a second "Supplement to Post Conviction Petition," which raised a claim that defendant's federal constitutional rights had been violated, a second Rule 651(c) certificate, and a response to the State's motion to dismiss. In the response, defendant maintained that the State erroneously assumed defendant's petition fell under section 2--1401 when, in fact, as supplemented, it was a post-conviction petition.
On April 19, 2007, the State filed a motion to strike defendant's supplements to the post-conviction petition and response to its motion to dismiss. The State argued that defendant's petition was labeled a section 2--1401 petition and counsel could not supplement a post-conviction petition that was never filed.
On May 2, 2007, at the hearing on the State's motion to dismiss, before Judge Michael McHaney, the State commented:
"The defense filed a response to our motion to dismiss.
Subsequent to our motion to dismiss being filed, they filed what has been captioned a supplement to post-conviction petition. Then they filed a response to our motion to dismiss and I filed a motion to strike both the supplement and response."
Thereafter, the State argued:
"You can't file a petition or an amendment or a supplement to a post-conviction petition ...