THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. AARON PORTER, Appellant. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. NATHANIEL SINGLETON, Appellant. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARVA MASON, a/k/a Linda Wells, Appellee.
No. 63274. — Nos. 63384, 63716 cons.
Supreme Court of Illinois
February 11, 1988
Modified on denial of rehearing April 5, 1988.
122 Ill. 2d 64
RYAN, J.; SIMON, J., dissenting.
Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State‘s Attorney, of Chicago (Mark L. Rotert, Assistant Attorney General, of Chicago, and Thomas V. Gainer, Jr., and Christopher J. Cummings, Assistant State‘s Attorneys, of counsel), for the People.
Steven Clark, Deputy Defender, and Kenneth L. Jones, Barbara C. Kamm, Michael J. Pelletier and Debra R. Salinger, Assistant Appellate Defenders, of the Office of the State Appellate Defender, of Chicago, for appellant.
Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State‘s Attorney, of Chicago (Mark L. Rotert, Assistant Attorney General, of Chicago, and Thomas V. Gainer, Jr., and Christopher J. Cummings, Assistant State‘s Attorneys, of counsel), for the People.
Steven Clark, Deputy Defender, and Kenneth L. Jones, Barbara C. Kamm, Michael J. Pelletier and Debra R. Salinger, Assistant Appellate Defenders, of the Office of the State Appellate Defender, of Chicago, for appellee.
JUSTICE RYAN delivered the opinion of the court:
Defendants, Marva Mason, a/k/a Linda Wells, Aaron Porter, and Nathaniel Singleton, filed separate post-con-viction petitions and motions for appointment of counsel to represent them on their petitions in the separate cases in the circuit court of Cook County. All three petitions were dismissed as “patently without merit” pursuant to
Defendants Porter and Singleton filed petitions for leave to appeal in No. 63274 and No. 63884, which were granted. The State filed a petition for leave to appeal under Rule 317 (
These cases present the following questions for review: (1) whether
I
The defendants contend that
“(a) Within 30 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section. If the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry.” (
Ill. Rev. Stat. 1985, ch. 38, par. 122-2.1(a) .)
If the petition is not dismissed pursuant to section 122-2.1, the indigent defendant is entitled to appointment of counsel. See
Defendants contend that
“Record for Indigents; Appointment of Counsel. Upon the timely filing of a notice of appeal in a post-conviction proceeding, if the trial court determines that the petitioner is indigent, it shall order that a transcript of the record of the post-conviction proceedings, including a transcript of the evidence, if any, be prepared and filed with the clerk of the court to which the appeal is taken and shall appoint counsel on appeal, both without cost to the petitioner. The record filed in that court shall contain a showing, which may be made by the certificate of petitioner‘s attorney, that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner‘s contentions.” (Emphasis added.) (
107 Ill. 2d R. 651(c) .)
The dissent erroneously states that Rule 651(c) allows an amendment of the post-conviction petition in the appellate court. There is nothing in Rule 651(c) that authorizes an amendment to the post-conviction petition in the appellate court or any other proceedings in the appellate court, to which the dissent alludes. Rule 651(c) specifically governs appeals from post-conviction proceedings. The rule explicitly conditions its applicability “[u]pon the timely filing of a notice of appeal in a post-conviction proceeding.” (
Additionally, it should be noted that
We next consider defendants’ due process challenge to
Under the
Additionally, the defendants contend that the appointment of counsel at the trial level is necessary for meaningful appellate review. To support this assertion, defendants claim that under most circumstances, the appellate court is presented with a poorly drafted petition and a blanket dismissal order, and appellate counsel cannot supplement the pro se petition with possibly meritorious claims.
The United States Supreme Court, however, has declared that fundamental fairness does not require that counsel be appointed for post-conviction petitioners. (Ro-driquez v. United States (1969), 395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715; Johnson v. Avery (1969), 393 U.S. 483, 21 L. Ed. 2d 718, 89 S. Ct. 747.) In Rodriquez the Court approved the
The defendants assert that there are critical distinctions between
The dissent acknowledges that under the Supreme Court holding in Pennsylvania v. Finley (1987), 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990,
The constitutional debates do not reflect an intention by the delegates to the convention that our due process clause should receive a different construction than that placed on the Federal due process clause. (See generally 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1496-1501 (hereinafter cited as Proceedings).) As delegate Lennon stated:
“The due process that we have in Illinois at the present time — well, the same language in the proposal, aside from the two areas of change I mentioned — is similar to the Federal Constitution.” (3 Proceedings 1496 (statement of delegate Lennon).)
Moreover, delegate Lennon indicated that current interpretations of the due process clause of the Federal Con-
“I think we all recognize that no matter what concept or doctrine you talk about, we have to live with what the supreme court interprets in particular cases.” 3 Proceedings 1500-01.
We next consider defendants’ contention that equal protection requires the appointment of counsel for indigent post-conviction petitioners. The defendants assert that
Specifically, the defendants submit that a post-conviction petition is substantially similar to a first direct appeal because it is the first time issues outside of the record are challenged. We find no merit to defendants’ equal protection argument and adopt the analysis and holding in People v. Baugh (1985), 132 Ill. App. 3d 713, 716, in which the court concluded that there is a rational basis for treating the two situations differently. Additionally, we note that “there is no disparate treatment between indigent and nonindigent post-conviction petitioners as all are subject to dismissal regardless of whether they are represented by counsel if their petitions are found to be frivolous and patently without merit.” People v. Mason (1986), 145 Ill. App. 3d 218, 226.
II
Defendants next contend that
In support of their contention that
In determining whether an unconstitutional provision of a statute is severable from the remainder, this court, in Livingston v. Ogilvie (1969), 43 Ill. 2d 9, 23, quoting
In the case at bar,
In People v. Farmer (1986), 148 Ill. App. 3d 723, the appellate court specifically rejected an identical argument. We agree with the analysis of the court in Farmer that
“[W]hile the Illinois House of Representatives acted to pass Public Act 83-942 only when both sections 122-2.1 and 122-8 were included, we cannot conclude from this that the General Assembly would not have passed the statute without section 122-8. The Senate apparently saw nothing wrong with the bill as amended, voting to accept the Governor‘s recommended changes. It was only when the House decided not to accept the bill as amended that the Senate acquiesced. From this we refuse to read an intent that the General Assembly would not have passed section 122-2.1 without section 122-8. *** We
perceive the Act as passed to be the result of political compromise instead.” (People v. Farmer (1986), 148 Ill. App. 3d 723, 728.)
See also People v. Peeples (1987), 153 Ill. App. 3d 1050, 1055.
The defendants, however, maintain that the legislative debates indicate that
We next consider defendants’ contention that the circuit court erred in failing to enter a written order containing specific factual findings and legal conclusions for the dismissal on the grounds that the petition was frivolous.
This court has stated that whether a statutory provision is interpreted as mandatory or directory depends upon the intent of the drafters. (People v. Youngbey (1980), 82 Ill. 2d 556.) Generally, the word “shall” is indicative of a mandatory intent; however, such a construction is not absolute and intent can also be determined from the purpose and context of the provision. (Youngbey, 82 Ill. 2d 556.) The defendants assert that the purpose of the written order requirement, specifying findings of fact and conclusions of law, is for the benefit of the reviewing court. Although we deem it advisable that the trial court state its reasons for dismissal, we do not conclude it is mandatory.
In the instant case, the use of the term “shall” does not refer to the contents of the court‘s order of dismissal itself, but rather to the court‘s duty to dismiss a petition if it is frivolous or patently without merit. (See People v. Wilson (1986), 146 Ill. App. 3d 567; People v. Cox (1985), 136 Ill. App. 3d 623.) The statute merely directs that the court‘s written order specify its findings of fact or conclusions of law in order to facilitate appellate review of
Additionally, it should be noted that our conclusion that the statutory provision in question here is directory as to the entry of the written order and its contents rather than mandatory comports with this court‘s decision in People v. Davis (1982), 93 Ill. 2d 155. In Davis, this court concluded that the requirement that the court “shall” state its reasons for imposing a particular sentence under
Defendants Singleton‘s and Mason‘s final contention is that the trial courts failed to enter the orders of dismissal within 30 days and that
“Within 30 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section. If the court determines the petition is frivolous or is patently without
In the present case, Singleton filed his petition on February 2, 1984; however, the trial court did not enter the dismissal order until October 19, 1984. Mason‘s petition was filed June 21, 1984, and the dismissal order was entered October 19, 1984. Clearly, these orders were entered well past the specified 30-day period. The defendants maintain that after 30 days the petitions could no longer be dismissed pursuant to
The State, however, asserts that the 30-day requirement set forth in
As previously noted, in order to determine whether a provision contained in a statute is directory or mandatory the court must ascertain the legislative intent of the
Similarly, mandatory intent is indicated where a statute prescribes the result that will occur if the specified procedure is not followed. (People v. Brown (1986), 142 Ill. App. 3d 139.)
“If the petition is not dismissed pursuant to this section, the court shall order the petition to be docketed for further consideration in accordance with Sections 122-4 through 122-6.” (
Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122-2.1(b) .)
We conclude that the 30-day rule was intended to be mandatory.
The dissent characterizes our construction of the word “shall” as “chameleonic.” There is no inconsistency in our interpretation of the word “shall” as it is used in the two places in the section of the Act we are now considering. This opinion holds that the court shall examine the petition and enter an order within 30 days. This opinion also holds that if the petition is found to be frivolous and patently without merit, the court shall dismiss the petition. In both cases the word “shall” is construed, in this opinion, to be mandatory. It is not mandatory, however, that the order dismissing the petition be written, or that it specify findings of fact and conclusions of law. As noted above, a mandatory requirement
Because we find the 30-day rule of
No. 63274 - Judgment affirmed; Nos. 63384 & 63716 - Judgments reversed and remanded with directions.
JUSTICE SIMON, dissenting:
Although I am aware that under the Supreme Court‘s recent interpretation of due process under the Federal Constitution,
Over 10 years ago, Justice Brennan pointed out that Supreme Court decisions provide minimal safeguards to individual rights and encouraged State courts to provide the double protection of citizens’ rights inherent in our Federal system. (Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 502-03 (1977).) I agree with Justice Brennan that it is our duty to protect vigilantly the rights of Illinois citizens, particularly when Federal protection of rights is diminished. Commentators have chronicled how our sister State courts in some 375 cases since 1970 have relied on their State constitutions to vindicate rights not protected by Supreme Court interpretations of the United States Constitution. (See Collins & Galie, Upholding Rights Left Unprotected by U.S. Supreme Court Decisions, Nat‘l L.J., November 9, 1987, at 32; Collins & Galie, Special Section on State Constitutional Law, Nat‘l L.J., September 29, 1986 (listing cases).) I believe it is time for this court to join our sister State courts that have “responded with marvelous enthusiasm to many not-so-subtle invitations to fill the constitutional gaps left by the decisions of the Supreme Court majority.” (Brennan, The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L. Rev. 535, 549 (1986).) Therefore, I believe the majority should have addressed defendant‘s State due process claim.
In assessing the scope of due process rights preserved by our State constitution, this court should begin with an analysis of the text and meaning of
“No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.” (
Ill. Const. 1970, art. I, § 2 .)
To understand what the framers meant by due process, it is instructive to examine both State and Federal interpretations of due process prior to 1970. (See 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1496-97 (presenting majority view on section 2, Mr. A. Lennon noted that “[t]he due process that we have in Illinois at the present time *** is similar to the Federal Constitution” and cited several Illinois cases that in a very general way helped define the concept).) As is the case in construing statutes (see Illinois Bell Telephone Co. v. Allphin (1982), 93 Ill. 2d 241, 249 (construing Messages Tax Act in accordance with Federal constitutional law in effect when statute was enacted); see also Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431 (concluding that Illinois long-arm jurisdiction does not vacillate with Supreme Court‘s due process interpretations)), the only Federal constitutional interpretations that should impact upon our interpretation of the State Constitution are those existing at the time the Illinois Constitution was adopted. Thus, to determine whether
Prior to the enactment of
It is also important to note that at the time the Illinois Constitution was adopted the United States Supreme Court‘s interpretation of Federal due process rights was not inconsistent with the Polansky court‘s understanding of due process. The majority relies on dicta from Johnson v. Avery (1969), 393 U.S. 483, 488, 21 L. Ed. 2d 718, 722, 89 S. Ct. 747, 750, to suggest that the Supreme Court‘s decisions held that due process did not require appointment of counsel under the Illinois post-conviction statute (122 Ill. 2d at 75). The remoteness of this dicta to the holding of Johnson is apparent when one considers that the Johnson Court invalidated a State regulation that limited petitioner‘s access to Federal habeas corpus. Specifically, the Court held that unless the State provides reasonable alternative assistance in preparing petitions for post-conviction relief, it could not validly enforce a prison regulation that prevented inmates from assisting other prisoners.
Also, the majority‘s reliance on Rodriguez v. United States (1969), 395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715, is misplaced, for Rodriguez neither “declared that fundamental fairness does not require that counsel be appointed for post-conviction petitioners” nor “approved the Federal habeas corpus statute.” (122 Ill. 2d at 74-75.) In fact, Rodriguez reversed and remanded a denial of habeas corpus because the district court‘s denial was based on the petitioner‘s failure to specify the points he would raise if his right to appeal were reinstated. (Rodriguez, 395 U.S. at 330, 23 L. Ed. 2d at 344, 89 S. Ct. at 1717.) Ironically, the discussion in Rodriguez that is
“deprives an indigent prisoner of meaningful access to post-conviction relief. Those whose education has been limited and those *** who lack facility in the English language might have grave difficulty in making even a summary statement of points to be raised [in a post-conviction petition]. Moreover, they may not even be aware of errors which occurred at trial. Thus they would be deprived of their only chance to [litigate a claim pursuant to the Act] even though they have never had the assistance of counsel in preparing one. Rodriguez v. United States (1969), 395 U.S. 327, 330, 23 L. Ed. 2d 340, 344, 89 S. Ct. 1715, 1717.” (People v. Wilson (1986), 146 Ill. App. 3d 567, 583.)
In sum, I believe the majority errs when it cites cases the Supreme Court decided prior to the adoption of the Illinois Constitution to support its conclusion that an indigent petitioner‘s due process rights do not ensure meaningful, adequate, or effective access to post-conviction relief under our statute.
To the majority‘s credit, the opinion recognizes the keystone in this due process analysis—examining the nature of the post-conviction proceedings in order to ascertain what procedural safeguards fundamental fairness demands. (122 Ill. 2d at 74.) Unfortunately, the majority overlooks this court‘s previous comprehensive discussion of the nature and function of the Post-Conviction Hearing Act. (See People v. Slaughter (1968), 39 Ill. 2d 278, 283-85.) In Slaughter, Justice Schaefer writing for the court observed that the Act was enacted in direct response to Marino v. Ragen (1947), 332 U.S. 561, 92 L. Ed. 170, 68 S. Ct. 240, a case in which the Supreme Court criticized Illinois’ inadequate collateral-remedy scheme. Justice Rutledge‘s concurring opinion cut to the heart of the matter: “If the federal guarantee of due
In describing how the post-conviction statute put an end to what Justice Rutledge described as the “Illinois merry-go-round” of post-conviction remedies, this court stated:
“The Post-Conviction Hearing Act provides that counsel shall be appointed to represent indigent prisoners who request counsel, and it also provides that a petition may be amended or withdrawn. (
Ill. Rev. Stat. 1967, chap. 38, pars. 122-4, 122-5 .) These provisions were included because it was anticipated that most of the petitions under the Act would be filed pro se by prisoners who had not had the aid of counsel in their preparation. To the end that the complaints of a prisoner with respect to the validity of his conviction might be adequately presented, the statute contemplated that the attorney appointed to represent an indigent petitioner would consult with him either by mail or in person, ascertain his alleged grievances, examine the record of the proceedings at the trial and then amend the petition that had been filed pro se, so that it would adequately present the prisoner‘s constitutional contentions. The statute can not perform its function unless the attorney appointed to represent an indigent petitioner ascertains the basis of his complaints, shapes those complaints into appropriate legal form and presents them to the court.” (Slaughter, 39 Ill. 2d at 284-85.)
In short, this court found that providing post-conviction petitioners with counsel was essential to ensure that defendants had an adequate opportunity to present their constitutional claims. The inescapable implication was that to deny defendants this access would violate indigent prisoner‘s due process rights.
Nevertheless, the majority rejects defendants’ due process arguments by discounting the difficulties indigent
Based on what I have seen as a member of this court, the majority‘s faith in the constitutional knowledge of indigent petitioners is greater than mine. Every term we review numerous pro se prisoner petitions for leave to appeal, and I cannot believe that my colleagues have not noticed how difficult practically every one of those pro se petitions is to understand. Of course, we are aided in our review by the mandatory attachment of the appellate court opinion. (107 Ill. 2d R. 315(b)(5).) But under
In addition, the relationship between the post-conviction statute and our
“the purpose underlying Rule 651(c) is not merely formal. It is to ensure that all indigents are provided proper representation when presenting claims of constitutional deprivation under the Post-Conviction Hearing Act.” (People v. Brown (1972), 52 Ill. 2d 227, 230.)
Because
Further, though I agree with the majority that
Finally, I am baffled by the majority‘s chameleonic interpretation of the word “shall” in
For the foregoing reasons, I respectfully dissent.