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The People of the State of Illinois v. Stacey Bland

December 2, 2011

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
STACEY BLAND, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Sangamon County No. 06CF227 Honorable Esteban F. Sanchez, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Appleton and McCullough concurred in the judgment and opinion.

OPINION

¶ 1 In May 2006, a jury convicted defendant, Stacey Bland, of theft (720 ILCS 5/16-1(a)(1) (West 2006)). In August 2006, the trial court sentenced him to seven years in prison. Defendant appealed, and this court affirmed (People v. Bland, No. 4-07-0592 (August 28, 2008) (unpublished order pursuant to Supreme Court Rule 23)).

¶ 2 In October 2009, defendant pro se filed a "Motion to Vacate Judgment," citing section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)) and section 122-1 of Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 (West 2008)). At the trial court's urging, the State responded by filing a motion to dismiss. Following a May 2010 hearing at which (1) the court asked defendant to clarify whether he wished to proceed under the Code or the Act and (2) defendant responded that he wished to proceed under the Act, the court granted the State's motion to dismiss.

¶ 3 Defendant appeals, arguing that (1) the trial court erred by failing to properly admonish him prior to recharacterizing his pleading, and (2) alternatively, the court erred by dismissing his petition without appointing counsel for him. Because we agree that the court erred by failing to appoint counsel, we reverse and remand with directions.

¶ 4 I. BACKGROUND

¶ 5 Following defendant's May 2006 theft conviction, the trial court sentenced him to seven years in prison. Defendant appealed, and this court affirmed (People v. Bland, No. 4-07-0592 (August 28, 2008) (unpublished order pursuant to Supreme Court Rule 23)).

¶ 6 In October 2009, defendant pro se filed a "Motion to Vacate Judgment," citing section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2008)) and section 122-1 of Act (725 ILCS 5/122-1 (West 2008)). In his motion, defendant requested the appointment of counsel. At the trial court's urging, the State responded by filing a motion to dismiss, in which the State argued that although it was unclear from defendant's pleading whether he wished to proceed under the Code or the Act, defendant's pleading should be dismissed because it was untimely and baseless under either characterization.

¶ 7 In May 2010, the trial court initiated a hearing at which defendant participated by telephone and the prosecutor participated from the trial judge's chambers. At the outset, the prosecutor outlined why the hearing was being held, as follows:

"Judge, initially, the threshold determination as to what type of petition or motion that [defendant] filed *** needs to be addressed. I will specifically state from the outset that I don't think from the State's perspective it really concerns us as to whether it is a [p]ost-conviction [p]etition or a [p]etition for [p]ost-judgment

[r]elief under the Code of Civil Procedure.

Judge, I spent several pages in my motion discussing the various issues with respect to that, and I think, for the sake of clarity, [defendant] characterized this as a [section] 2-1401 ***

[p]etition ***, and perhaps we ought to just address it as such. But I can address it if it were to be ...


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