from Circuit Court of Sangamon County No. 13CF105 Honorable
John W. Belz, Judge Presiding.
JUSTICE APPLETON delivered the judgment of the court, with
opinion. Justice Holder White concurred in the judgment and
opinion. Presiding Justice Turner concurred in part and
dissented in part, with opinion.
1 Defendant, Charles Strickland, appeals from the dismissal
of three pro se motions, which the trial court
recharacterized as, collectively, a postconviction petition.
The question in this appeal is whether the court should have
given defendant the admonitions in People v.
Shellstrom, 216 Ill.2d 45, 57 (2005), before so
recharacterizing the motions. Our answer is yes.
2 Granted, this case is factually different from
Shellstrom in that the dismissal of defendant's
recharacterized motions was in the second stage of the
postconviction proceeding instead of in the first stage. See
People v. Harris, 2013 IL App (1st) 111351,
¶¶ 46-47 (describing the three stages of a
postconviction proceeding). Nevertheless, defendant in this
case was pro se at the time of the
recharacterization. The second-stage order of dismissal
simultaneously did three things: (1) allowed the appointed
counsel to withdraw, (2) recharacterized the three pro
se motions as a postconviction petition, and (3)
dismissed the motions. Because defendant was pro se
at the time the court first explicitly recharacterized his
motions as a postconviction petition, the rationale of
Shellstrom applies to this case, despite the factual
difference. Like the defendant in Shellstrom,
defendant in this case had no attorney to warn him of the
looming danger of procedural forfeiture (see 725 ILCS
5/122-1(f) (West 2016)) when the court did the
3 Therefore, we vacate the trial court's dismissal of
defendant's three pro se motions, and we remand
this case for the trial court to admonish defendant pursuant
to Shellstrom, 216 Ill.2d at 57, and permit him to
amend or withdraw his motions if he deems that either course
of action would be suitable for him.
4 I. BACKGROUND
5 A. The Charge
6 The State charged that, on February 14, 2013, defendant
committed the offense of unlawful possession of a weapon by a
felon, a violation of section 24-1.1(a) of the Code of
Criminal Procedure of 2012 (720 ILCS 5/24-1.1(a) (West
7 The information also alleged that, in People v.
Strickland, Sangamon County case No. 2001-CF-106,
defendant previously was convicted of "a forcible
felony, Burglary." This additional allegation was
legally significant because, under section 24-1.1(e) (720
ILCS 5/24-1.1(e) (West 2012)), a "[v]iolation of this
Section by a person not confined in a penal institution who
ha[d] been convicted of a forcible felony" was a Class 2
felony. Id. The offense otherwise would have been
merely a Class 3 felony. See id. A prior conviction
of a forcible felony elevated unlawful possession of a weapon
by a felon from a Class 3 felony, punishable by imprisonment
for no less than 2 years and no more than 10 years, to a
Class 2 felony, punishable by imprisonment for no less than 3
years and no more than 14 years. See id.
8 B. The Negotiated Guilty Plea
9 On May 1, 2014, defendant entered a negotiated plea of
guilty to the charge of unlawful possession of a weapon by a
felon. He waived the preparation of a presentence
investigation report. That same day, the trial court
sentenced him to imprisonment for 7 years minus the 456 days
he had spent in presentence custody. The court ordered him to
pay a public defender's fee of $200 but imposed no fines.
10 Defendant never filed a motion to vacate his guilty plea.
Nor did he take a direct appeal.
11 C. Additional Assessments Imposed by the Circuit Clerk
12 Even though, in its sentence, the trial court imposed no
fines (the public defender's fee was a fee, not a fine),
the circuit clerk indicated in the court file that defendant
owed the following: (1) a violent crime victims'
assessment of $100, (2) a probation fund assessment of $10,
(3) a drug court assessment of $5, (4) a child advocacy
center assessment of $10, (5) a court system assessment of
$50, and (6) an Illinois State Police assistance fund
assessment of $15.
13 D. The First Two Pro Se Motions
14 On August 26, 2014-more than 30 days after
sentencing-defendant filed two pro se motions, and
neither motion cited or mentioned the Post-Conviction Hearing
Act (Act) (720 ILCS 5/122-1 et seq. (West 2014)).
15 The first pro se motion was titled "Motion
To Reduce Sentence Based on Erroneous Elevation of
Charges." In this motion, defendant contended that his
prior conviction of burglary should not have elevated the
present offense, unlawful possession of a weapon by a felon,
from a Class 3 felony to a Class 2 felony for two reasons:
(1) burglary was not a forcible felony, and (2) he was
convicted of the burglary more than 10 years before his
conviction of the present offense. He alleged he had informed
his appointed defense counsel of this error but that it
nevertheless had gone uncorrected.
16 The second pro se motion was titled "Motion
To Vacate Judgement, Conviction, and Sentence Based on
Unconstitutional Statutes." In this motion, defendant
claimed that when representing him in the guilty plea
proceedings, his appointed defense counsel was in a conflict
of interest and consequently rendered ineffective assistance.
Defendant further claimed that, under federal decisions
issued before his arrest in this case, the statute defining
the offense of unlawful possession of a weapon by a felon
(720 ILCS 5/24-1.1(a) (West 2012)) was unconstitutional.
17 E. The Appointment of New Counsel
18 On October 1, 2014, the trial court made a docket entry,
which stated: "Attorney WILLIAM DAVIS *** is appointed
to represent Defendant *** on his post-trial motions, filed
August 26, 2014." The docket entry contains no mention
of the Act or of a postconviction proceeding.
19 F. The State's First Motion for Dismissal
20 On October 30, 2014, the State filed a "Motion To
Dismiss Petition for Post- Conviction Relief." (It is
unclear which of the two pro se motions the State
regarded as a postconviction petition.) The State argued that
dismissal of the petition was warranted for five reasons.
First, defendant pleaded only conclusions instead of specific
facts. Second, he failed to allege a substantial denial of
his constitutional rights. Third, he had forfeited his claims
by failing to raise them on direct appeal. Fourth, the claims
he raised on direct appeal had been fully litigated, and the
doctrine of res judicata barred them from ...