THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY M. WEBER, Defendant-Appellant.
No. 2-19-0841
Appellate Court of Illinois, Second District
June 24, 2021
2021 IL App (2d) 190841
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Zenoff and Jorgensen concurred in the judgment and opinion.
Appeal from the Circuit Court of Lake County, No. 14-CF-2075; the Hon. Ari P. Fisz, Judge, presiding. Judgment: Reversed and remanded.
James E. Chadd, Thomas A. Lilien, and Yasemin Eken, of State Appellate Defender’s Office, of Elgin, for appellant.
Eric F. Rinehart, State’s Attorney, of Waukegan (Patrick Delfino, Edward R. Psenicka, and Stephanie Hoit Lee, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
¶ 1 Following a jury trial, defendant, Anthony M. Weber, was convicted of aggravated battery with a firearm (
I. BACKGROUND
¶ 3 On July 28, 2014, four boys confronted defendant as they rode their bikes past his house. Defendant fired a gun at the boys and ran after them as they rode away. One boy described how defendant pointed a gun at all four of them and fired, trying to shoot at least one of the boys. Defendant did shoot one of the boys in the leg. Based on these acts, defendant, as relevant here, was charged with four counts of attempted first degree murder (
¶ 4 The case proceeded to a jury trial. At the close of evidence, defense counsel asked for a lesser-included offense instruction on reckless discharge of a firearm (
¶ 5 On appeal, defendant argued that his trial counsel was ineffective for failing to request a jury instruction on reckless conduct as a lesser-included offense of aggravated battery with a firearm. This court affirmed, finding that, because defendant was not entitled to a reckless-conduct instruction, counsel was not ineffective for failing to request that instruction. Weber, 2018 IL App (2d) 151290-U, ¶ 19.
¶ 6 Eight months later, on February 5, 2019, defendant filed pro se a petition titled “Petition for Relief from Judgment Pursuant to
¶ 7 In two footnotes in his section 2-1401 petition, defendant (1) asked the trial court to treat his petition as a postconviction petition if the court determined that he was not entitled to relief under section 2-1401 and (2) argued that, if considered as a postconviction petition, his petition should be deemed timely filed. Specifically, the first footnote stated:
“If this court finds that [defendant] is not entitled to relief under
735 ILCS 5/2-1401(f) [(West 2018)], this court should allow [defendant] to convert his petition into a Petition for Postconviction Relief under the Post-Conviction Hearing Act, pursuant to725 ILCS 5/122-1 et seq. [(West 2018)], and allow his [sic] to plead timeliness.”
¶ 8 In the second footnote, defendant asserted:
“In the event that this petition is converted into a postconviction petition, it is timeliy [sic] filed under the Act where [defendant’s] PLA [(petition for leave to appeal)] is currently pending before the Illinois Supreme Court. [Defendant] contends that both his trial and appellate counsel were ineffective for failure to raise these claims previously.”
¶ 9 On August 23, 2019, without any input from the State, the trial court dismissed the section 2-1401 petition. After doing so, the court ruled:
“As a final matter, the court has considered whether, pursuant to [defendant’s] request and in an exercise of discretion, to recharacterize the petition as a petition for post-conviction relief pursuant to the [Act]. [Citation.] A number of reasons militate against recharacterizing the petition in this case, and this court declines to do so. [Citation.] One of those reasons is that even if the court chose to recharacterize this petition, [defendant] would still not prevail. *** The arguments put forward by [defendant] in this petition were not argued on direct appeal, though they could have been. Therefore, these arguments would be considered waived if this court were to recharacterize this petition as a Post-Conviction Petition.”
¶ 11 At issue in this appeal is whether the trial court was required to consider defendant’s section 2-1401 petition as a postconviction petition once it ruled that defendant was not entitled to relief under section 2-1401.
¶ 12 In resolving this issue, we must interpret section 122-1(d) of the Act (
¶ 13 With these principles in mind, we turn to section 122-1(d), which provides:
“A person seeking relief by filing a petition under this Section must specify in the petition or its heading that it is filed under this Section. A trial court that has received a petition complaining of a conviction or sentence that fails to specify in the petition or its heading that it is filed under this Section need not evaluate the petition to determine whether it could otherwise have stated some grounds for relief under this Article.” (Emphasis added.)
725 ILCS 5/122-1(d) (West 2018).
¶ 14 Defendant argues that he expressly met the requirements of section 122-1(d) when he referenced the Act in the footnotes of his section 2-1401 petition and asked the trial court to consider his section 2-1401 petition as a postconviction petition if he was denied relief under section 2-1401 of the Code. To support his argument, defendant relies on McDonald. There, the appellate court held that the defendant satisfied section 122-1(d) of the Act when he wrote ” ‘Post-Conviction Petition’ ” at the top of several pages of his petition and cited sections of the Act in a one-page appendix. McDonald, 373 Ill. App. 3d at 877, 880. Defendant contends that, like the defendant in McDonald, he adequately informed the trial court that he wanted his petition to be considered as a postconviction petition. Defendant notes that, though the petition’s heading referenced section 2-1401 alone, the body of the petition expressly referred to the “Post-Conviction Hearing Act” and cited section 122-1 of the Act. We agree with defendant that he sufficiently informed the trial court that he was seeking alternative relief under the Act.
¶ 15 Section 122-1(d) simply requires a defendant seeking relief under the Act to specify in the heading or body of the pleading that it is being filed under the Act. Defendant filed a petition that specified in the body—in two footnotes—that he wanted his section 2-1401 petition to be considered as a postconviction petition if he was denied relief under section 2-1401. Specifically, defendant asked the court to “allow [him] to convert his petition into a Petition for Postconviction Relief under the Post-Conviction Hearing Act, pursuant to
¶ 16 The State notes that the trial court expressly considered defendant’s request
¶ 17 In Stoffel, the court recognized:
“the long-standing practice in Illinois of ‘recharacterization,’ i.e., the process whereby a trial court independently evaluates a pleading filed by a pro se defendant and, if the pleading alleges a deprivation of rights cognizable in a postconviction proceeding, treats ‘the pleading as a postconviction petition, even where the pleading is labeled differently.’ ” (Emphasis added.) Id. at 323 (quoting People v. Shellstrom, 216 Ill. 2d 45, 52-53 (2005)).
The second sentence of section 122-1(d) makes clear that a trial court need not recharacterize as a postconviction petition a pleading that does not specify that it is filed under the Act:
“A trial court that has received a petition complaining of a conviction or sentence that fails to specify in the petition or its heading that it is filed under this Section need not evaluate the petition to determine whether it could otherwise have stated some grounds for relief under this Article.”
725 ILCS 5/122-1(d) (West 2018).
¶ 18 The initial pleading in Stoffel did not name or cite the Act. The defendant filed supplements to the pleading that described it as having been filed under the Act. The trial court held that the supplements could not convert the pleading into a postconviction petition where the pleading itself did not indicate that it was filed under the Act. Stoffel, 239 Ill. 2d at 321. Before the supreme court, the State argued that “a trial court’s failure to recharacterize a pro se pleading [(as a postconviction petition)] cannot be reviewed for error.” Id. at 322. The court agreed. Because there was no question that the pleading did not specify in its heading or body that it was filed under the Act, the issue was whether the trial court appropriately exercised its discretion not to recharacterize the pleading as a postconviction petition. The court construed the second sentence of section 122-1(d) to mean that, ” ‘[i]f a pro se pleading alleges constitutional deprivations that are cognizable under the Act, but, *** the pleading makes no mention of the Act, a trial court is under no obligation to treat the pleading as a postconviction petition.’ ” (Emphases in original.) Id. at 324 (quoting Shellstrom, 216 Ill. 2d at 53 n.1). The court concluded:
”a trial court has no obligation to recharacterize a pro se pleading pursuant to section 122-1(d). It cannot be error for a trial court to fail to do something it is not required to do. Accordingly, we hold that, in light of section 122-1(d), a trial court’s decision not to recharacterize a defendant’s pro se pleading as a postconviction petition may not be reviewed for error.” (Emphases in original.) Id.
¶ 19 Stoffel’s holding does not apply here, because defendant’s pleading did not fail to ” ‘mention *** the Act.’ ” Id. (quoting Shellstrom, 216 Ill. 2d at 53 n.1). Rather, as noted, the pleading met the requirements of the first sentence of section 122-1(d). Specifically, defendant stated that he wanted the trial court to consider his section 2-1401 petition as a postconviction petition if the court determined that he was not entitled to relief under section 2-1401. Defendant named and cited the Act. Thus, the trial court’s discretionary power to recharacterize a petition was not triggered. Rather, the court was required to consider defendant’s petition as a postconviction petition.
¶ 20 Acknowledging that “[d]efendant did mention the Act in two ‘footnotes,’ ” the State claims that the trial court’s failure to treat defendant’s section 2-1401 petition as a postconviction petition was not improper, because “[defendant] did not tie [the footnotes] to any specific text in the body of the petition.” That is not required. As noted, section 122-1(d) requires only that the defendant “specify in the petition or its heading that it is filed under this Section.”
¶ 21 Relying on People v. McNett, 361 Ill. App. 3d 444 (2005), the State comments: “To the extent defendant claims that his conviction is void, the [State] agree[s] that this Court could consider that issue on appeal through its own re-characterization of [defendant’s] petition on appeal.” We decline to do so. McNett does provide authority for the appellate court to
“reclassify” a “freestanding motion to vacate a void order“—which is not recognized under Illinois law—and “consider it as being brought under one of the statutorily authorized modes of collateral attack.” Id. at 447. However, unlike the defendant in McNett, defendant here did not file a motion unrecognized under Illinois law. Rather, defendant filed a petition recognized under Illinois law, i.e., a section 2-1401 petition, and sought to have that petition treated as another petition recognized under Illinois law. Therefore, McNett is inapplicable here.
¶ 22 In the alternative, the State argues that the trial court did consider the section 2-1401 petition as a postconviction petition but found that defendant was not entitled to postconviction relief. We disagree that the trial court considered the petition as a postconviction petition. Rather, the court evidently used its determination that defendant’s arguments would not succeed as postconviction claims to buttress its refusal to consider the petition as a postconviction petition. In any event, the court’s impression of the petition’s potential merit as a postconviction petition was flawed. The court believed that defendant’s arguments were waived, but this was unfounded, as defendant avoided waiver by arguing that appellate counsel was ineffective for failing to raise trial counsel’s errors. See People v. Turner, 187 Ill. 2d 406, 413 (1999) (waiver avoided if postconviction petition alleges ineffective assistance of appellate counsel for failing to raise claims on direct appeal).
¶ 23 In light of the above, we hold that defendant’s petition met the requirements of section 122-1(d) of the Act and that the trial court erred in not considering the pro se section 2-1401 petition as a postconviction petition. Accordingly, we reverse
¶ 24 The Act provides a three-stage process for adjudicating postconviction petitions. Id. At the first stage, the trial court determines whether the postconviction petition is “frivolous or *** patently without merit,” which is also known as the “gist” standard.
¶ 25 Here, defendant’s petition was filed on February 5, 2019. The trial court did not rule on the petition until August 23, 2019, 199 days later. Although the trial court did dismiss defendant’s section 2-1401 petition, it failed to address defendant’s request for relief under the Act within 90 days of the petition’s filing. Thus, under the Act, the petition must be remanded for stage-two proceedings. See McDonald, 373 Ill. App. 3d at 881.
¶ 26 In reaching our conclusion, we note that we are in no way expressing our view on the merits of defendant’s postconviction petition. We simply reverse and remand solely because the trial court failed to address within the statutory 90-day period whether the postconviction petition was “frivolous or *** patently without merit.”
III. CONCLUSION
¶ 28 For the reasons stated, we reverse the judgment of the circuit court of Lake County and remand for further proceedings.
¶ 29 Reversed and remanded.