THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. RAUL C. CEJA, Defendant-Appellant.
No. 2-07-0293
Second District
March 25, 2008
381 Ill. App. 3d 178
“any discarded, used or unconsumed substance or waste. ‘Litter’ mаy include, but is not limited to, any garbage, trash, refuse, debris, rubbish, grass clippings or other lawn or garden waste, newspaper, magazines, glass, metal, plastic or paper containers or other packaging construction material, abandoned vehicle (as defined in the Illinois Vehicle Code), motor vehicle parts, furniture, oil, carcass of a dead animal, any nauseous or offensive matter of any kind, any object likely to injure any person or create a traffic hazard, potentially infectious medical waste as defined in Section 3.360 of the Environmental Protection Act, or anything else of an unsightly or unsanitary nature, whiсh has been discarded, abandoned or otherwise disposed of improperly.”
415 ILCS 105/3(a) (West 2004).
Based on our above analysis, we conclude that the trees fall within the definition of litter as “any discarded, used or unconsumed substance or waste.”
CONCLUSION
Accordingly, for the reasons stated, we affirm.
Affirmed.
O‘MALLEY and GROMETER, JJ., concur.
Thomas A. Lilien, of State Appellate Defender‘s Office, of Elgin, for appellant.
Joseph E. Birkett, State‘s Attorney, of Wheaton (Lawrence M. Bauer and Diane L. Campbell, both of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
JUSTICE GROMETER delivered the opinion of the court:
This case is before us on defendant Raul C. Ceja‘s motion for summary remand. Defendant contends that the trial court improperly dismissed his рetition under the Post-Conviction Hearing Act (Act) (
A summary of the proceedings up until this point in the litigation would be helpful in understanding our disposition of this appeal. Hence, we set forth the following. After a jury trial in 1999, defendant was convicted of first-dеgree murder (
Defendant appeals the trial court‘s decision. He reasons that since
Before turning to the substance of defendant‘s contentions, we will address the State‘s argument that defendant waived any objection to the trial court summarily dismissing his petition. Specifically, the State invokes the invited-error doctrine. See, e.g., People v. Lopez, 187 Ill. App. 3d 999, 1007 (1989). It points out that defendant caused the lengthy delay in this case by seeking a myriad of continuances before amending his petition. But for these continuances, the State reasons, the trial court would have had an opportunity to dismiss the petition summarily. The State‘s waiver argument breaks down, however, because, as we explain in more detail below, when defendant filed his original petition, this was a capital case. Therefore, the petition was never subject to summary dismissal. Any delay caused by defendant did not cause the trial court to lose an opportunity to dismiss the petition.
Hence, the question before us is whether the trial court had the authority to dismiss defendant‘s amended petition. The Act establishes a three-stage procedure for adjudicating postconviction petitions. People v. Cummings, 375 Ill. App. 3d 513, 516 (2007). In the first stage, “the circuit court determines whether defendant‘s allegations sufficiently demonstrate a constitutional violation that would necessitate relief, and the court may summarily dismiss a petition upon finding that it is frivolous or patently without merit.” Cummings, 375 Ill. App. 3d at 516; see also
The State, however, raises an additional argument we must consider. It contends that the subsequent commutation of defendant‘s sentence coupled with the filing of an amended petition created a new window in which the case could be summarily dismissed. A number of cases touch upon this issue. The First District case of People v. Smith, 312 Ill. App. 3d 219 (2000), shares a number of similarities with this case, but also has one important difference. In Smith, the defendant filed a postconviction petition while under a sentence of death. Subsequently, the Illinois Supreme Court, on direct appeal, vacated the defendant‘s death sentence. People v. Smith, 177 Ill. 2d 53, 101 (1997). The trial court then summarily dismissed the defendant‘s postconviction petition. The petition was dismissed more than 90 days after it was filed. The State argued that when the supreme court vacated thе defendant‘s sentence of death, it restored the trial court‘s power to summarily dismiss the petition and created a new 90-day period in which the petition could be dismissed. The Smith court rejected this argument, explaining that “Illinois case law provides that the statutory time limit of 90 days is mandatory [citation] and begins to run upon the ‘filing and docketing of each petition’ [citation]. There are no exceptions to this rule.” Smith, 312 Ill. App. 3d at 223. It then held that “any action taken by the trial court pursuant to section 122-2.1(a) of the Post-Conviction Hearing Act must be taken ‘[w]ithin 90 days after the filing and docketing of each petition.’ ” Smith, 312 Ill. App. 3d at 224, quoting
Smith teaches us that the mere fact that defendant‘s death sentence was commuted did not create a new 90-day period in which the trial court could dismiss defendant‘s petition. However, Smith differs from this case in that it did not involve an amended petition. Thus, we must consider whether the filing of the amended petition here somehow leads to a different result.
It is true that filing an amended petition during stage one of post-conviction proceedings causes a new 90-day period to run from the time of the filing. In People v. Watson, 187 Ill. 2d 448, 451 (1999), our supreme court held, “when a defendant who has filed an original postconviction petition subsequently files an amended petition, the 90-day period in which the court must examine the dеfendant‘s petition and enter an order thereon is to be calculated from the filing of the amended petition.” The Watson court was concerned with what it termed the “unreasonableness” of the defendant‘s position:
“After requesting and receiving leave to amend his original petition, defendant mailed the amended petition on the eighty-eighth day of the original period. Under defendant‘s suggestion, the circuit court would then have had only two days to consider the merits of the amended petition. Such a truncated time frame to consider the petition would be both inadequate and unfair. Such a rule could work only to the detriment of all, inсluding both defendants and prosecutors.” Watson, 187 Ill. 2d at 451.
Watson‘s holding would seem to support the State‘s position. However, in People v. Harris, 224 Ill. 2d 115, 130 (2007), the court qualified Watson, explaining that “in Watson the amended petition was filed before the initial 90-day period expired.” It continued, “In other words, during the initial 90-day period, the petition was replaced by a new petition, and the 90-day period began anew.” Harris, 224 Ill. 2d at 130. Thе court then noted, “[t]here is no provision in the Act allowing the trial court to delay the beginning of the 90-day period when a petition is pending before it.” Harris, 224 Ill. 2d at 130. Therefore, the rule set forth in Watson, that the filing of an amended petition causes a new 90-day period to run, applies only while postconviction proceedings are still in the first stage.
Indeed, in People v. Volkmar, 363 Ill. App. 3d 668, 672 (2006), the Fifth District discussed Watson and concluded, “We do not believe that Watson stands for the proposition that any time an amended petition is filed, the 90-day time period for summary dismissal starts anew.” (Emphasis in original.) Rather, the court stated, “[W]e believe that once counsel has been appointed, any dismissal of the petition should be by adversary process, based on a motion to dismiss filed by the prosecutor, and not done sua sponte and summarily by the circuit court.” Volkmar, 363 Ill. App. 3d at 673. We find the court‘s reаsons for taking this position persuasive.
The Volkmar court based its decision upon the purposes behind the procedures set forth in section 122-2.1 of the Act (
In sum, we agree with the Volkmar court. The presence of counsel once a defendant gets beyond that first stage of postconviction proceedings obviates the need for judicial review for frivolity. Hence, there is no reason to revive the period in which the petition could be summarily dismissed. The State points out that, in this case, counsel was appointed because of the death sentence. We do not see the relevance of the reason for the appointment. Counsel is always bound by Supreme Court Rule 137 (155 Ill. 2d R. 137), and that is a sufficient safeguard against the filing of a frivolous or patently meritless petition.
The State points briefly to People v. Lara, 317 Ill. App. 3d 905, 907 (2000), in support of its position. Lara, however, did not invоlve a summary dismissal of a postconviction petition. Lara, 317 Ill. App. 3d at 908. Nevertheless, it did restate the rule from Watson: “A summary dismissal entered more than 90 days after the petition was filed is void, unless the defendant requested leave to amend within the period for the trial court‘s first-stage review.” (Emphasis added.) Lara, 317 Ill. App. 3d at 907. Hence, Lara does not help the State.
Finally, the State asserts that “there would be no practical value to remanding this cause to the trial court for further proceedings, as the trial court would likely then dismiss the petition upon a motion by the People.” In essence, this is a harmless-error argument; however, the State cites no authority indicating that the error committed by the trial court in this case is amenable to a harmless-error analysis. Accоrdingly, this contention is waived. People v. Acevedo, 191 Ill. App. 3d 364, 366 (1989).
Before closing, we emphasize that the foregoing discussion is not intended to supplant any of the bright-line rules set forth in the Act. In accordance with the Act‘s provisions, a trial court may dismiss a petition as frivolous or patently without merit during stage one and not thereafter, regardless of whether сounsel is involved in the case. Though it is typically the case that counsel is not involved during
Accordingly, we grant defendant‘s motion for summary remand. We vacate the order dismissing defendant‘s postconviction petition and remand this cause for further proceedings.
Vacated and remanded.
CALLUM, J., concurs.
JUSTICE O‘MALLEY, specially concurring:
I write separately because I disagree with the majority‘s decision to adopt the flawed reasoning expressed in Volkmar. As the majority notes, Volkmar states that postconviction petitions should not be summarily dismissed at the second stage because, once a petition has reached the second stage and counsel has been appointed, frivolity review would be redundant with the mandate from Rule 137 that counsel certify that filed pleadings are well grounded in fact and law. 381 Ill. App. 3d at 182-83; see Volkmar, 363 Ill. App. 3d at 672-73. Thus, according to Volkmar, “once counsel has been appointed, any *** dismissal of the petition should be by adversary process, not done sua sponte and summarily by the circuit court.” (Emphasis added.) Volkmar, 363 Ill. App. 3d at 773. This is wrong. Contrary to the reasoning in Volkmar, the circuit court‘s power to dismiss a postconviction petition summarily does not hinge on the question of whether counsel has been appointed; it hinges on the status of the petition. Quite simply, a petition in the first stage of postconviction proceedings may be dismissed summarily; a petition that has advanced past the first stage may not be dismissed summarily.
Volkmar‘s erroneous reliance on the presence of counsel suggests at least two results that contravene the Act. First, under Volkmar, a petition filed by retained counsel at the first stage could not be dismissed summarily at the first stage, because the petition would bear the certification of counsel pursuant to Rule 137. Second, if a defendant were to elect to proceed pro se after his petition survived first-stage review, Volkmar would allow the trial court to dismiss his рetition summarily at either stage two or stage three, because the petition would lack the certification of counsel pursuant to Rule 137.
The basis for Volkmar‘s reasoning is that, once counsel has been retained or appointed, the certification requirements of Rule 137 ap-
The majority deems Volkmar‘s reasoning “persuasive” (381 Ill. App. 3d at 182), declares that it “agree[s] with the Volkmar court” (381 Ill. App. 3d at 183), and echoes the sentiment from Volkmar that “[t]he presence of counsel once a defendant gets beyond [the] first stage *** obviates the need for judicial review for frivolity” (381 Ill. Aрp. 3d at 183). The majority follows these endorsements of Volkmar with the hollow assurance that its discussion “is not intended to supplant any of the bright-line rules set forth in the Act” and the incongruous (albeit correct) explanation that “a trial court may dismiss a petition as frivolous or patently without merit during stage one and not thereafter, rеgardless of whether counsel is involved in the case.” 381 Ill. App. 3d at 183. These statements, which appear as an afterthought in the penultimate paragraph of the majority opinion, fall flat in light of the majority‘s actual reasoning.
In my view, the majority should rely on the Act, not Volkmar, to reach the result that defendant‘s petition should be remanded for second-stage postconviction proceedings.