{ "id": 1599289, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRANCE MACK, Defendant-Appellant", "name_abbreviation": "People v. Mack", "decision_date": "2002-12-10", "docket_number": "No. 1\u201499\u20144213", "first_page": "39", "last_page": "45", "citations": [ { "type": "official", "cite": "336 Ill. App. 3d 39" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "206 Ill. 2d 331", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1578278 ], "year": 2002, "pin_cites": [ { "page": "341", "parenthetical": "holding that Boclair did not apply retroactively to the defendant's first postconviction petition where the proceedings on that petition had been entirely completed at the time Boclair was announced" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/206/0331-01" ] }, { "cite": "734 N.E.2d 207", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "315 Ill. App. 3d 500", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 980703 ], "year": 2000, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/315/0500-01" ] }, { "cite": "745 N.E.2d 62", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "questions of fact are reviewed under a manifestly erroneous standard" } ], "opinion_index": 0 }, { "cite": "319 Ill. App. 3d 200", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527790 ], "year": 2001, "pin_cites": [ { "page": "212", "parenthetical": "questions of fact are reviewed under a manifestly erroneous standard" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/319/0200-01" ] }, { "cite": "712 N.E.2d 363", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "305 Ill. App. 3d 333", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1208061 ], "year": 1999, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/305/0333-01" ] }, { "cite": "688 N.E.2d 658", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "179 Ill. 2d 205", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801351 ], "year": 1997, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0205-01" ] }, { "cite": "238 Ill. App. 3d 97", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5155980 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/238/0097-01" ] }, { "cite": "749 N.E.2d 892", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "195 Ill. 2d 506", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725372 ], "year": 2001, "pin_cites": [ { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/195/0506-01" ] }, { "cite": "202 Ill. 2d 59", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442048 ], "year": 2002, "pin_cites": [ { "page": "78", "parenthetical": "McMorrow, J., dissenting upon denial of rehearing August 29, 2002" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0059-01" ] }, { "cite": "237 N.E.2d 486", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "pin_cites": [ { "parenthetical": "all stating that the trial court may not make factual findings or credibility determinations at the summary dismissal stage" } ], "opinion_index": 0 }, { "cite": "40 Ill. 2d 28", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857333 ], "year": 1968, "pin_cites": [ { "page": "31-32", "parenthetical": "all stating that the trial court may not make factual findings or credibility determinations at the summary dismissal stage" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0028-01" ] }, { "cite": "533 N.E.2d 1089", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "126 Ill. 2d 248", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5557518 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-2d/126/0248-01" ] }, { "cite": "723 N.E.2d 230", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "189 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224794 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ill-2d/189/0001-01" ] }, { "cite": "202 Ill. 2d 89", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442050 ], "weight": 11, "year": 2002, "pin_cites": [ { "page": "99" }, { "page": "99" }, { "page": "100" }, { "page": "99" }, { "page": "102" }, { "page": "124", "parenthetical": "McMorrow, J., specially concurring" }, { "page": "102" }, { "page": "140", "parenthetical": "McMorrow, J., specially concurring" }, { "page": "102", "parenthetical": "\"we concluded in Boclair that matters of timeliness must 'be left for the State to assert during the second stage of the post-conviction proceedings' \"" }, { "page": "102" }, { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0089-01" ] }, { "cite": "759 N.E.2d 565", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "325 Ill. App. 3d 876", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570276 ], "year": 2001, "pin_cites": [ { "page": "879" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0876-01" ] }, { "cite": "701 N.E.2d 1063", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "183 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209962 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "379-82" }, { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0366-01" ] }, { "cite": "80 F.3d 230", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7634306 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/f3d/80/0230-01" ] }, { "cite": "93 C 2053", "category": "reporters:state", "reporter": "Cow.", "year": 1994, "opinion_index": 0 }, { "cite": "610 N.E.2d 1271", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "148 Ill. 2d 649", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "606 N.E.2d 165", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 } ], "analysis": { "cardinality": 688, "char_count": 14865, "ocr_confidence": 0.776, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.05987723608596486 }, "sha256": "0d10f7d0b1cefdfdd04b941ef64adcb7952b1ac976aad70707211a8d36e5cacc", "simhash": "1:8fb4d0b5b7b60f85", "word_count": 2386 }, "last_updated": "2023-07-14T16:43:40.180592+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRANCE MACK, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BURKE\ndelivered the opinion of the court:\nDefendant Terrance Mack appeals from an order of the circuit court summarily dismissing his \u201cMotion for Reconsideration of Denial of Postconviction Petition/Successive Petition for Relief\u2019 brought pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 et seq. (West 1998)). On appeal, defendant contends that procedural bars, such as untimeliness and the fact that this is a successive post-conviction petition, should not bar his claim, that his petition set forth the gist of a constitutional claim based on newly discovered evidence showing his actual innocence, and that Public Act 83 \u2014 942 (Pub. Act. 83 \u2014 942, eff. November 23, 1983) violates the single subject rule of article IV section 8, of the Illinois Constitution (Ill. Const. 1970, art. IV \u00a7 8). For the reasons set forth below, we reverse and remand.\nSTATEMENT OF FACTS\nDefendant, along with Richard Terrell and Adrian Hennon, were charged with first degree murder, attempted first degree murder, armed violence, and aggravated battery following a drive-by shooting that resulted in the death of one individual and injury to a second. The facts of the incident are set out in our opinion affirming defendant\u2019s convictions and sentences on direct appeal (People v. Mack, 238 Ill. App. 3d 97, 606 N.E.2d 165 (1992)) and only those facts relevant to our decision in the instant case are recited here.\nDefendant and Hennon were tried simultaneously by separate juries. At defendant\u2019s trial, the State maintained that defendant had fired the shots, Terrell was in the backseat of the car, and Hennon was driving the car from which the shots were fired. Defendant maintained that he was not in the car at the time of the incident. Defendant called Hennon to testify on his behalf, but Hennon refused to testify, invoking his right to remain silent pursuant to the fifth amendment. Hen-non had previously given an oral statement to the police following his arrest in which he stated that Terrance Hill was the shooter and that he had told the police that defendant was not the shooter. Defendant attempted to admit Hennon\u2019s oral statement at his trial, but the trial court denied his request, concluding that the statement was unreliable. Defendant testified on his own behalf and stated that he was not in the car at the time of the shooting and he only entered the car subsequent to the shooting, at which time the group was stopped and arrested.\nDefendant was found guilty of all charges and, on November 3, 1989, he was sentenced to concurrent terms of 60 years\u2019 imprisonment for first degree murder, 30 years\u2019 imprisonment for armed violence, and 30 years\u2019 imprisonment for attempted murder. Hennon was also found guilty and sentenced to 40 years\u2019 imprisonment for first degree murder, 20 years\u2019 imprisonment for attempted murder, and 20 years\u2019 imprisonment for armed violence. Subsequent to defendant\u2019s trial, on January 12, 1990, Terrell pled guilty to first degree murder and attempted murder in exchange for a sentence of 22 years\u2019 imprisonment and 10 years\u2019 imprisonment for the respective offenses.\nOn direct appeal, defendant contended that the trial court erred in refusing to introduce Hennon\u2019s oral statement. We affirmed the trial court (Mack, 238 Ill. App. 3d at 103) and the supreme court denied defendant\u2019s petition for leave to appeal (People v. Mack, 148 Ill. 2d 649, 610 N.E.2d 1271 (1992)). Subsequently, defendant filed for habeas corpus relief in the federal district court, which the court denied (Mack v. Peters, No. 93 C 2053 (N.D. Ill. 1994)), and the Seventh Circuit Court of Appeals affirmed (Mack v. Peters, 80 F.3d 230 (7th Cir. 1996)).\nOn November 4, 1996, a postconviction petition was filed on behalf of defendant by attorney James Payonk, Jr. On December 6, the trial court summarily dismissed the petition on the bases that it was untimely and raised issues that were barred under principles of res judicata since they had been addressed on direct appeal. On July 1, 1997, counsel\u2019s subsequent motion to vacate the summary dismissal was denied and, on September 19, counsel filed a \u201cMotion for Leave to Appeal.\u201d On February 17, 1999, defendant was advised by the clerk of the appellate court, in response to his request as to the status of his appeal, that no appeal had been filed on his behalf.\nOn October 12, 1999, defendant filed the pro se successive post-conviction petition currently before this court, alleging newly discovered evidence in the form of a March 9, 1998, affidavit of Terrell that demonstrated defendant\u2019s actual innocence because Terrell averred that defendant was not present at the time of the shooting. Defendant also alleged that his delay in filing this postconviction petition was not due to his culpable negligence but, rather, due to the failure of his attorneys to do things correctly and timely. Defendant further alleged that he was placed in segregation from December 1997 until June 1998. At this time, he was transferred to another facility where he remained in 24-hour isolation until December 1998. Defendant maintained that because of the segregation and the fact he did not receive adequate assistance from the prison\u2019s legal staff, the delay in filing this petition should not have been held against him. Specifically, defendant stated that he was denied access to the court by the failure of the Illinois Department of Corrections to provide him with the meaningful assistance of trained personnel. Lastly, with respect to procedural matters, defendant alleged that any tardiness in filing his postconviction petition would have been avoided if his counsel on direct appeal had exhausted state remedies before proceeding in the federal court. Based on the above, defendant asked the trial court to consider his successive petition.\nThe trial court summarily dismissed defendant\u2019s petition without stating any reason or basis for doing so and this appeal followed.\nANALYSIS\nI. Propriety of Summary Dismissal\nThere are three levels or stages of review under the Act. People v. Coleman, 183 Ill. 2d 366, 379-82, 701 N.E.2d 1063 (1998). At the first stage, referred to as summary dismissal, the trial court reviews only the allegations of the postconviction petition, without any additional input from the State or the defendant. People v. Scullark, 325 Ill. App. 3d 876, 879, 759 N.E.2d 565 (2001). At this stage:\n\u201cIf *** the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order.\u201d 725 ILCS 5/122 \u2014 2.1(a)(2) (West 1998).\nPursuant to the most recent authority of the Illinois Supreme Court, at this first stage of the proceedings, the trial court can only determine whether the petition is \u201cfrivolous or is patently without merit,\u201d and it may not dismiss the petition based upon untimeliness. People v. Boclair, 202 Ill. 2d 89, 99 (2002). The trial court is \u201cforeclosed from engaging in any fact finding or any review of matters beyond the allegations of the petition.\u201d Boclair, 202 Ill. 2d at 99. Thus, the supreme court held that \u201cthe circuit court may dismiss a post-conviction petition at the initial stage only if the petition is deemed to be \u2018frivolous or *** patently without merit,\u2019 not if it is untimely filed.\u201d Boclair, 202 Ill. 2d at 100. In so ruling, the Boclair court expressly overturned that portion of its prior decision in People v. Wright, 189 Ill. 2d 1, 723 N.E.2d 230 (1999), that could be read to the contrary, i.e., that the trial court could dismiss a postconviction petition at the first stage based on untimeliness. Boclair, 202 Ill. 2d at 99.\nClearly, under Boclair, the trial court may not address timeliness at the first stage of postconviction proceedings. However, Boclair also dictates that the trial court may not address and resolve the issue of culpable negligence at the summary dismissal stage. Specifically, the Boclair court stated:\n\u201c[W]hen a circuit court determines whether a defendant is culpably negligent in filing his petition late, the circuit court makes an assessment of the defendant\u2019s credibility. [Citation.] At this initial stage of the proceedings, however, the court should only determine whether the petition alleges constitutional deprivations. The process at the summary review stage measures a petition\u2019s substantive virtue rather than its procedural compliance. [Citation.] In determining an issue of credibility, the circuit court necessarily exceeds the boundary set by [the summary dismissal procedures].\u201d Boclair, 202 Ill. 2d at 102.\nSee also Coleman, 183 Ill. 2d at 381; People v. Caballero, 126 Ill. 2d 248, 533 N.E.2d 1089 (1989); People v. Wegner, 40 Ill. 2d 28, 31-32, 237 N.E.2d 486 (1968) (all stating that the trial court may not make factual findings or credibility determinations at the summary dismissal stage). Thus, a petition raising lack of culpable negligence, like an untimely petition, must proceed to the second stage of postconviction proceedings since resolution of culpable negligence involves credibility determinations and matters of procedural compliance unless the trial court determines the petition is frivolous or patently without merit. See, e.g., Boclair, 202 Ill. 2d at 124 (McMorrow, J., specially concurring) (\u201cAccording to the majority opinion, matters of \u2018procedural compliance\u2019 (202 Ill. 2d at 102) may not be considered in the initial stage of post-conviction review\u201d (emphasis added)); Boclair, 202 Ill. 2d at 140 (McMorrow, J., specially concurring) (\u201cthe fundamental holding of Wright is that the issues of timeliness and culpable negligence are an affirmative defense that can be raised only by the State\u201d; the trial court may not raise them sua sponte (emphasis added)); People v. Collins, 202 Ill. 2d 59, 78 (2002) (McMorrow, J., dissenting upon denial of rehearing August 29, 2002), quoting Boclair, 202 Ill. 2d at 102 (\u201cwe concluded in Boclair that matters of timeliness must \u2018be left for the State to assert during the second stage of the post-conviction proceedings\u2019 \u201d).\nA conclusion that culpable negligence cannot be evaluated at the first stage is buttressed by the relevant standards of review. We review a trial court\u2019s summary dismissal of a postconviction petition de novo. People v. Barrow, 195 Ill. 2d 506, 519, 749 N.E.2d 892 (2001). Conversely, we review the trial court\u2019s decision on culpable negligence to determine whether the trial court\u2019s determination was manifestly erroneous. People v. Caballero, 179 Ill. 2d 205, 214, 688 N.E.2d 658 (1997); People v. Van Hee, 305 Ill. App. 3d 333, 336, 712 N.E.2d 363 (1999). A review of the trial court\u2019s decision based on the manifestly erroneous standard presupposes that the trial court made determinations of fact and credibility. See, e.g., People v. Kolakowski, 319 Ill. App. 3d 200, 212, 745 N.E.2d 62 (2001) (questions of fact are reviewed under a manifestly erroneous standard). De novo review presupposes that credibility and fact questions are not at issue. People v. Jones, 315 Ill. App. 3d 500, 505, 734 N.E.2d 207 (2000). Thus, the relevant standards of review demonstrate that no culpable negligence determination may be made at the first stage of postconviction proceedings.\nBased on the above rationale, we therefore find that the trial court erred in summarily dismissing defendant\u2019s pro se postconviction petition, even though it was a second or successive petition. First, contrary to the direct mandates of the Act, the trial court failed to state its reasons or bases for dismissing defendant\u2019s petition. 725 ILCS 5/122 \u2014 2.1(a)(2) (West 1998) (a trial court\u2019s order must specify the \u201cconclusions of law it made in reaching its decision\u201d). Thus, it is unclear on what basis the trial court dismissed defendant\u2019s petition, i.e., whether lack of timeliness, that defendant failed to establish a lack of culpable negligence, that defendant\u2019s petition was an improper successive petition because defendant failed to establish cause and prejudice, or that it was frivolous and patently without merit. Since there is no exception in the statutory language for not including a basis for dismissal of a second or successive postconviction petition, this court will not read one into the Act.\nLastly, it would also appear improper for the trial court to address defendant\u2019s claim of actual innocence at the summary dismissal stage. In Boclair, the court concluded that \u201cto allow the circuit court to dismiss summarily post-conviction petitions for failure to present evidence of actual innocence in a timely manner could lead to a miscarriage of justice.\u201d Boclair, 202 Ill. 2d at 102. As such, \u201ca defendant\u2019s claim of actual innocence cannot be reviewed when a circuit court enters a summary dismissal sua sponte, because the State does not have the opportunity to review the claim.\u201d Boclair, 202 Ill. 2d at 102.\nBased on the foregoing, we reverse and remand this cause for further proceedings consistent with the mandates of the Act and supreme court precedent. We make no findings on the merits of defendant\u2019s claims with respect to lack of culpable negligence, the propriety of a successive petition, or defendant\u2019s claim of newly discovered evidence.\nII. Constitutionality of Public Act 83 \u2014 942\nDefendant also contends that Public Act 83 \u2014 942 (Pub. Act 83 \u2014 942, eff. November 23, 1983), which amended the Act, violates the single subject rule of article IV, section 8, of the Illinois Constitution (Ill. Const. 1970, art. IV \u00a7 8). In Boclair, the Illinois Supreme Court held that Public Act 83 \u2014 942 does not violate the single subject rule. Boclair, 202 Ill. 2d at 108. Accordingly, defendant\u2019s contention is without merit.\nCONCLUSION\nFor the reasons stated, we reverse and remand this cause to the circuit court of Cook County for further proceedings.\nReversed and remanded.\nGORDON and McBRIDE, JJ., concur.\nAlthough Boclair espoused this rule, perhaps clearly and distinctly for the first time, there is no issue of retroactive application of the rule because it has been well established by case law precedent that factual determinations may not be made at the summary dismissal stage, as detailed above. But see People v. Britt-El, 206 Ill. 2d 331, 341 (2002) (holding that Boclair did not apply retroactively to the defendant\u2019s first postconviction petition where the proceedings on that petition had been entirely completed at the time Boclair was announced).", "type": "majority", "author": "JUSTICE BURKE" } ], "attorneys": [ "Michael J. Pelletier and Jennifer Bonjean, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Annette Collins, and Bette Plass, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRANCE MACK, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201499\u20144213\nOpinion filed December 10, 2002.\nMichael J. Pelletier and Jennifer Bonjean, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Annette Collins, and Bette Plass, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0039-01", "first_page_order": 57, "last_page_order": 63 }