Appeal from Circuit Court of McLean County. No. 07CF1069. Honorable Robert L. Freitag, Judge Presiding.
On appeal from the dismissal of defendant's postconviction petition as frivolous and patently without merit, the appellate court rejected defendant's contentions that he had an absolute right to withdraw his petition without prejudice at the first stage of the proceedings pursuant to section 2-1009(a) of the Code of Civil Procedure and that the trial court abused its discretion by failing to rule on his motion to stay before denying his petition, since section 122-5 of the Post-Conviction Hearing Act, which allows a court to grant defendant leave to withdraw a petition with the court's approval, applied to the first stage of defendant's proceedings and the trial court's summary dismissal of defendant's petition as frivolous and patently without merit implicitly denied his request for a stay or withdrawal without any abuse of discretion; further, the circuit clerk's assessment of fines was vacated and the cause was remanded with directions for the trial court to impose the mandatory fines and direct the appropriate credit for the fines
Michael J. Pelletier, Karen Munoz, and Nancy L. Vincent, all of State Appellate Defender's Office, of Springfield, for appellant.
Ronald C. Dozier, State's Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and David E. Mannchen, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE KNECHT delivered the judgment of the court, with opinion. Presiding Justice Appleton and Justice Harris concurred in the judgment and opinion.
[¶1] On March 22, 2012, defendant, Gregory J. Chester, filed a pro se petition under the Post-Conviction Hearing Act (Postconviction Act) (725 ILCS 5/122-1 through 122-8 (West 2012)). Four days later, defendant moved to stay the postconviction proceedings to allow him time to add additional unspecified constitutional arguments he recently found. In his motion, defendant referenced section 122-5 of the Postconviction Act (725 ILCS 5/122-5 (West 2012)) and stated the trial court had the authority to allow petitioners to withdraw their petitions. In June 2012, the trial court dismissed defendant's petition, finding it frivolous and patently without merit. Defendant appeals, arguing (1) he had a right to withdraw his postconviction petition without prejudice during the first stage of postconviction proceedings; (2) the trial court abused its discretion by failing to rule on defendant's motion to stay before denying the postconviction petition; and (3) he is entitled to monetary credit against the Children's Advocacy Center fee and drug court fee due to the time he spent in jail awaiting sentencing. We disagree with defendant's first and second arguments, vacate the fines referenced in his third argument as assessed by the circuit clerk, and remand with directions that the trial court impose mandatory fines and credit creditable fines as appropriate.
[¶2] I. BACKGROUND
[¶3] In July 2008, defendant was convicted of aggravated battery (McLean County case No. 07-CF-1069) and obstructing justice and resisting arrest (McLean County case No. 07-CF-797). The victim of aggravated battery was a Bloomington police officer who was driving a marked squad car and wearing his uniform at the time of the offense, October 6, 2007. People v. Chester, 409 Ill.App.3d 442, 444, 949 N.E.2d 1111, 1113-14, 351 Ill.Dec. 16 (2011). The officer was in pursuit of the fleeing defendant when defendant battered him.
See Chester, 409 Ill.App.3d at 444, 949 N.E.2d at 1113-14. In October 2008, the trial court sentenced defendant to 12 years' imprisonment for aggravated battery, to be served consecutively to the 5-year term he received for obstructing justice and 364 days for resisting arrest. On direct appeal, defendant argued the State improperly commented during closing argument on his right not to testify and the trial court improperly failed
to question jurors during voir dire pursuant to Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). This court affirmed defendant's conviction and sentence. Chester, 409 Ill.App.3d at 443-44, 949 N.E.2d at 1113.
[¶4] On March 22, 2012, defendant filed his pro se petition for postconviction relief. He argued his constitutional rights were violated because, in part, (1) the police officer failed to provide evidence of a traffic violation and made a false statement in court; (2) the State, at trial, failed to prove " anything was broken or fracture[d]" ; (3) a juror was familiar with a witness in the case and did not affirmatively state she could remain impartial; (4) another juror knew the trial judge; (5) the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007); and (6) the State improperly commented, during closing argument, on his right not to testify.
[¶5] On March 26, 2012, before the trial court ruled on his petition, defendant filed a " Motion to Stay Post-Conviction." In his motion, defendant asked the court to " stay the original post-conviction or grant him an extension of time for at least 30 to 45 days." Defendant asserted the court was authorized to suspend his petition and stated the court could " allow a defendant to withdraw an initial post-conviction petition" and he could " refile *** and have it treated as the original." Defendant asserted, due to his limited library access, he " just found several constitutional violations" and needed time to place those arguments in his original petition.
[¶6] On June 1, 2012, the trial court dismissed defendant's petition as frivolous and patently without merit. The court concluded defendant's first four allegations of error were forfeited as they could have been raised on direct appeal but were not. The court found the latter two allegations of error were raised on direct appeal and relitigation of those issues was barred by res judicata . The court did not explicitly address defendant's motion to stay.
[¶7] This appeal followed.
[¶8] II. ANALYSIS
[¶9] A. Defendant Did Not Have the Right To Withdraw His Postconviction Petition
[¶10] Defendant argues, under section 2-1009(a) of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-1009(a) (West 2012)) he had the absolute right to withdraw his postconviction petition. Defendant maintains the language in section 122-5 of the Postconviction Act, stating " [t]he court may in its discretion grant leave, at any stage of the proceeding prior to entry of judgment, to withdraw the petition" (emphasis added) (725 ILCS 5/122-5 (West 2012)), does not conflict with section 2-1009(a) in these circumstances. Defendant contends the quoted language from section 122-5 applies only after a trial court finds the petition not frivolous and patently without merit and then dockets the petition under section 122-2.1(b) " for further consideration in accordance with Sections 122-4 through 122-6" (725 ILCS 5/122-2.1(b) (West 2012)). Until that point, defendant urges, section 122-5's limiting language does not apply and, because the trial court had not dismissed or docketed his petition under section 122-2.1(b), he was entitled to voluntarily withdraw his petition under section 2-1009(a).
[¶11] The State disputes defendant's contention the trial court should have treated defendant's " Motion to Stay Post-Conviction" as a motion to withdraw. The State points out defendant did not seek to withdraw his petition but instead sought a delay in the proceedings. Defendant ...