THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES P. QUIGLEY, Defendant-Appellant. - THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES P. QUIGLEY, Defendant-Appellant.
Second District Nos. 2-04-0750, 2-04-0751 cons.
Second District
June 23, 2006
617
Robert J. Agostinelli and Verlin R. Meinz, both of State Appellate Defender‘s Office, of Ottawa, for appellant.
Michael J. Waller, State‘s Attorney, of Waukegan (Martin P. Moltz and David A. Bernhard, both of State‘s Attorneys Appellаte Prosecutor‘s Office, of counsel), for the People.
PRESIDING JUSTICE GROMETER delivered the opinion of the court:
Defendant, James P. Quigley, appeals the trial court‘s summary dismissal of his petition under the Post-Conviction Hearing Act (Act) (
Here, defendant filed his petition on April 26, 2004. The trial court summarily dismissed the petition within 90 days (on June 15, 2004), without the input of any party. However, although the court determined that the petition was “without merit,” the court added that the petition “failed to make a substantial showing that [defendant‘s] Constitutional rights were violated.” As noted, a substantial showing of a constitutiоnal violation is required to survive dismissal at the second stage; to survive summary dismissal, a petition must present only the gist of a constitutional claim. Thus, the court‘s refеrence to the substantial-showing standard was inappropriate. Edwards, 197 Ill. 2d at 246.
The State notes that, in Gaultney, the supreme court affirmed a summary dismissal that included the trial court‘s finding ” ‘that [the] Defendant‘s Pеtition fails to present a substantial showing of [a] violation of [the] Defendant‘s constitutional rights.’ ” Gaultney, 174 Ill. 2d at 416. The supreme court stated that such language “involves generаl terminology that is common in post-conviction proceedings” and added that the trial court “specifically found that the petition was ‘frivolous and patently without merit,’ which is the proper statutory standard for [summary] dismissal.” Gaultney, 174 Ill. 2d at 422. We note that the supreme court made these comments in determining only that the trial cоurt had not relied on the input of the State. However, the supreme court certainly implied that, despite the trial court‘s inappropriate refеrence to the substantial-showing standard (Edwards, 197 Ill. 2d at 246), its additional determination that the petition was frivolous and patently without merit established that the court appliеd the proper standard. Thus, in this case, as the trial court similarly
Ultimately, however, whether the trial court applied the proper standard is immaterial. As the trial court summarily dismissed the petition within 90 days and without the input of any party, the dismissal was procedurally proper. In People v. Cleveland, 342 Ill. App. 3d 912, 915-16 (2003), which involved a procedurally proper summary dismissal that was based on an improper ground, we determined that we could affirm the dismissal on any prоper ground. Thus, assuming that the trial court summarily dismissed defendant‘s petition on the improper ground that it fails to make a substantial showing of a constitutional violation, we may affirm that dismissal if the petition fails to present the gist of a constitutional claim. As defendant concedes that it does not, we affirm.
Defendant reliеs on three cases, none of which persuades us that we are required to reverse and remand for second-stage proceedings under the Act. In People v. Dauer, 293 Ill. App. 3d 329 (1997), the trial court purported to enter a summary dismissal, but it dismissed the petition beyond the 90-day limitations period. The dismissal was not a procedurally proper summary dismissal that was based on an improper ground; instead, because the court did not comply with the procedural requirements of a summary dismissal, the dismissal was void. See People v. Volkmar, 363 Ill. App. 3d 668, 671 (2006). Thus, in effect, there was no dismissal for the appellate court to affirm on any proper ground.
Similarly, in People v. Merritte, 225 Ill. App. 3d 986 (1992), the trial court purported to enter a summаry dismissal, but it dismissed the petition at least partly on the basis of the State‘s premature motion to dismiss. Again, the dismissal was not a procedurally proper summary dismissal on an improper ground; instead, the dismissal was void. See People v. Magdaleno, 188 Ill. App. 3d 384, 386 (1989).
Finally, defendant cites People v. Reed, 302 Ill. App. 3d 1007 (1999), which requires a bit more consideration. There, the trial court summarily dismissed the petition, appаrently without any procedural impropriety, but based on its finding that the petition was untimely. The appellate court determined that the petition was timely; thus, the summary dismissal was procedurally proper yet based on an improper ground.1 Nevertheless, the appellate court reversed and remanded.
We submit that the Reed court was unduly distracted by the term “advisory.” The trial court‘s ruling that the petition lacked merit was not so much an advisory opinion as it was an alternative basis for its summary dismissal. Similarly, had the appellate court reviewеd that ruling and found it correct, the court would not have issued an advisory opinion but simply would have exercised the well-settled principle, which we invoked in Cleveland, that an appellate court may affirm a trial court‘s judgment on any proper ground, even if the trial court relied on a different ground. See Cleveland, 342 Ill. App. 3d at 915. Thus, to the extent that Reed holds that an appellate court may not affirm on any proper ground a procedurally proper summary dismissal that was based on an improper ground, we decline to follow it.
Defendant asserts, bluntly, that our willingness to reverse and remand due to procedural error but not due to substantive error “makes no sense.” According to defendant, “[i]t obviously is just as important—perhaps more important—that the trial court be substantively correct as well as procedurally correct in its ruling. And, if procedural error at the first stage warrants remand for second-stage proceedings, then so too should substantive error at the first stagе.” We respectfully disagree. The sense behind our rationale is that, when a summary dismissal is substantively erroneous, it is merely erroneous; thus, we may affirm it on a different substantive ground. However, when a summary dismissal is procedurally erroneous, at least in the contexts of Dauer and Merritte, it is not merely erroneous but rather is void. As a void judgment is one that the trial court has no power to enter (People v. Rogers, 364 Ill. App. 3d 229, 246 (2006)), we see no way that such a judgment could be one that the appellate court has the power to affirm. Moreover, given a procedural error, we cannot fathom what an alternate procedural ground would entail.
For the reasons set fоrth above, the judgment of the circuit court of Lake County is affirmed.
Affirmed.
BOWMAN and O‘MALLEY, JJ., concur.