Rehearing denied February 21, 2014
The dismissal of defendant’s original postconviction petition as frivolous and patently without merit was affirmed, and the trial court’s order rejecting defendant’s “Motion to Amend Post Conviction Petition, ” which the court construed as an attempt to file a successive postconviction petition without proper leave of the court, was modified to be a denial of defendant’s motion to amend without prejudice to defendant’s right to properly seek leave to file a successive petition and was affirmed as such.
Appeal from the Circuit Court of Winnebago County, No. 06-CF-5051; the Hon. Joseph G. McGraw, Judge, presiding.
Alan D. Goldberg and Kieran M. Wiberg, both of State Appellate Defender’s Office, of Chicago, for appellant.
Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M. Bauer and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Panel PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion. Justices McLaren and Birkett concurred in the judgment and opinion.
BURKE PRESIDING JUSTICE
¶ 1 A jury found defendant, Willie J. White, guilty of second-degree murder (720 ILCS 5/9-2(a)(1) (West 2006)), and the court sentenced him to 20 years' imprisonment. He appealed, challenging the sentence only, and we affirmed. People v. White, No. 2-09-0669 (2011) (unpublished order under Supreme Court Rule 23).
¶ 2 On December 21, 2011, defendant filed a petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)), asserting that he had received ineffective assistance of counsel. On January 6, 2012, the court entered an order dismissing 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 2012).
¶ 3 On January 23, 2012, the court received defendant's "Motion to Amend Post Conviction Petition" asking the court to "accept[ ] the attached" petition. The motion proper was three sentences long. The attached proposed amended petition expanded on the claims of the original petition. (A letter filed the same day showed that defendant was aware of the dismissal but thought that it had happened so fast that it was likely a mistake.)
¶ 4 On February 6, 2012, defendant filed a notice of appeal relating to the dismissal of the original petition. On February 10, 2012, the court stated, "[t]he defendant has attempted to file a successive post-conviction petition without leave of court, without showing cause or prejudice, " so, "[a]ccordingly, it is not filed."
¶ 5 Defendant moved in this court for a summary remand to allow the trial court to rule on the January 23, 2012, motion as either a motion to amend or a motion for reconsideration. We denied the motion. Defendant then sought and received a supreme court supervisory order allowing the February 6, 2012, notice of appeal to serve as a notice of appeal of the February 10, 2012, ruling.
¶ 6 In this appeal, defendant challenges only the February 10, 2012, ruling. He argues that the rule in People v. Pearson, 216 Ill.2d 58 (2005), applies to the February 10, 2012, ruling so that the trial court was required to give him the admonishments mandated by that holding. The Pearson court stated "that prior to recharacterizing as a successive postconviction petition a pleading that a pro se litigant has labeled as a different action cognizable under Illinois law" the court must tell the petitioner that the petition will be subject to the restrictions on successive petitions and give the petitioner the option to withdraw or amend the petition. Pearson, 216 Ill.2d at 68. The State ...