{ "id": 3739001, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEON L. PEARSON, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEON L. PEARSON, Defendant-Appellant", "name_abbreviation": "People v. Pearson", "decision_date": "2003-12-30", "docket_number": "Nos. 2-02-1097, 2-03-0205 cons", "first_page": "191", "last_page": "199", "citations": [ { "type": "official", "cite": "345 Ill. App. 3d 191" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "40 Ill. App. 3d 679", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2967695 ], "year": 1976, "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0679-01" ] }, { "cite": "227 Ill. App. 3d 112", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5793048 ], "year": 1992, "pin_cites": [ { "page": "139", "parenthetical": "[citing Palmer and People v. Riley, 40 Ill. App. 3d 679, 681 (1976" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/227/0112-01" ] }, { "cite": "323 Ill. App. 3d 318", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171673 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/ill-app-3d/323/0318-01" ] }, { "cite": "197 Ill. 2d 239", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259103 ], "year": 2001, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0239-01" ] }, { "cite": "72 Ill. 2d 358", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5444241 ], "year": 1978, "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0358-01" ] }, { "cite": "122 Ill. 2d 367", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549914 ], "year": 1988, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0367-01" ] }, { "cite": "53 Ill. 2d 479", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2924941 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "484" }, { "page": "484" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0479-01" ] }, { "cite": "174 Ill. App. 3d 217", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3516258 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "218-19" }, { "page": "218" }, { "page": "218-19" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/174/0217-01" ] }, { "cite": "319 Ill. App. 3d 703", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527715 ], "year": 2001, "pin_cites": [ { "page": "710", "parenthetical": "reviewing cases where sua sponte dismissals were reversed because of insufficient notice or opportunity to respond" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/319/0703-01" ] }, { "cite": "126 Ill. App. 3d 1024", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3596980 ], "year": 1984, "pin_cites": [ { "page": "1028" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/1024-01" ] }, { "cite": "332 Ill. App. 3d 834", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1034113 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/ill-app-3d/332/0834-01" ] }, { "cite": "508 U.S. 275", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12227 ], "weight": 6, "year": 1993, "pin_cites": [ { "page": "280" }, { "page": "190" }, { "page": "2082" } ], "opinion_index": 0, "case_paths": [ "/us/508/0275-01" ] }, { "cite": "331 Ill. App. 3d 984", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209158 ], "year": 2002, "pin_cites": [ { "page": "986" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/0984-01" ] }, { "cite": "207 Ill. 2d 542", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 975001 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "562-63" }, { "page": "565" }, { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/207/0542-01" ] }, { "cite": "342 Ill. App. 3d 195", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3474333 ], "year": 2003, "pin_cites": [ { "page": "201" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/0195-01" ] }, { "cite": "10 F.3d 434", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10508566 ], "year": 1993, "pin_cites": [ { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/f3d/10/0434-01" ] }, { "cite": "313 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186551 ], "year": 2000, "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0001-01" ] }, { "cite": "335 Ill. App. 3d 292", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 637050 ], "weight": 7, "year": 2002, "pin_cites": [ { "page": "295-96" }, { "page": "293" }, { "page": "294" }, { "page": "295-96" }, { "page": "296" }, { "page": "296" }, { "page": "296-97" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/335/0292-01" ] }, { "cite": "332 Ill. App. 3d 87", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1034031 ], "year": 2002, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/332/0087-01" ] }, { "cite": "181 Ill. 2d 512", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821420 ], "year": 1998, "pin_cites": [ { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0512-01" ] } ], "analysis": { "cardinality": 931, "char_count": 21461, "ocr_confidence": 0.681, "pagerank": { "raw": 3.238287746168144e-07, "percentile": 0.8681562129684008 }, "sha256": "26b87f5bf0307f1ab81bbc719271d96192c6507dfb0b5215c26bea6741f42bec", "simhash": "1:bb2a5f9113589c3d", "word_count": 3567 }, "last_updated": "2023-07-14T15:40:04.128176+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HUTCHINSON, EJ., and GILLERAN JOHNSON, J., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEON L. PEARSON, Defendant-Appellant.\u2014THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEON L. PEARSON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BYRNE\ndelivered the opinion of the court:\nDefendant, Deon L. Pearson, appeals from the dismissals of his petition for relief under section 2 \u2014 1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 1401 (West 2000)) and of his petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 et seq. (West 2000)). He contends that the dismissal of his section 2 \u2014 1401 petition under the procedure set out in the Act was reversible error. We agree and thus reverse the dismissal of his section 2 \u2014 1401 petition but affirm the dismissal of his petition under the Act.\nOn June 6, 1994, defendant pleaded guilty to first degree murder (720 ILCS 5/9 \u2014 1(a)(2) (West Supp. 1993)) pursuant to a plea bargain in which the State agreed to recommend a sentence cap of 40 years. The admonishments the court gave defendant did not include the information that he would be subject to three years\u2019 mandatory supervised release. See 730 ILCS 5/5 \u2014 8\u20141(d)(1) (West 1992). The court sentenced him to 34 years\u2019 imprisonment. On direct appeal, defendant argued that the court abused its discretion in imposing sentence by relying on \u201cthe gravity of the offense\u201d as an aggravating factor. This court affirmed the sentence. People v. Pearson, No. 2-94-1299 (1996) (unpublished order under Supreme Court Rule 23).\nOn September 22, 1997, defendant mailed to the trial court a document entitled \u201cpetition for post-conviction relief and as an alternative for time cut.\u201d He argued, inter alia, that the court had failed to properly consider his rehabilitative potential in imposing sentence. The docket sheet states that the trial court \u201cheard and denied\u201d the petition on November 12, 1997, with no parties present, and that the clerk sent a copy of the docket entry to defendant. No written order is present in the record, and we find no entry for this day in the report of proceedings.\nOn August 12, 2002, defendant mailed to the trial court a document entitled \u201cPetition for Relief from Judgment.\u201d The petition requested relief pursuant to section 2 \u2014 1401 of the Code on the basis that the court had not adequately admonished defendant regarding his potential sentence because it did not inform him that he would have to serve 3 years\u2019 mandatory supervised release after his 34 years in prison. The trial court summarily dismissed the petition, finding, inter alia, that it was \u201cin the nature of a Petition for Post-Conviction Relief,\u201d that defendant was precluded from filing a second petition, and that his total sentence including the mandatory supervised release did not exceed the agreed cap. This order was mailed to defendant by certified mail, and the signed receipt card was placed in the record. Defendant appeals (No. 2 \u2014 02\u20141097), arguing that the summary dismissal was improper.\nOn January 21, 2003, defendant filed in the trial court a document entitled \u201cAmended Petition for Post-Conviction Relief or in the Alternative for Sentence Reduction.\u201d He alleged that the court had lost his first petition, and he contended that the court had considered improper aggravating factors in imposing sentence. On January 30, 2003, the trial court \u201cdenie[d] the defendant\u2019s request for relief & str[uck] it as well as dismisse[d] it.\u201d Defendant appeals this order as well (No. 2 \u2014 03\u20140205), but presents no argument for the reversal of the order. We thus affirm the trial court\u2019s judgment in that appeal, and we consider only the claim in appeal No. 2 \u2014 02\u20141097.\nThere is no question but that the trial court erred in treating defendant\u2019s petition under section 2 \u2014 1401 of the Code of Civil Procedure as one under the Post-Conviction Hearing Act. Whether the trial court complied with the applicable procedure is a question of law and our review is de novo. See Woods v. Cole, 181 Ill. 2d 512, 516 (1998). The Act provides for an initial review in which the trial court determines, without input from either party, whether the petition is frivolous or patently without merit. If the court so finds, it summarily dismisses the petition without opportunity for the defendant to answer the trial court\u2019s contentions or amend the petition. See People v. Bouzidi, 332 Ill. App. 3d 87, 90 (2002). In People v. Gaines, 335 Ill. App. 3d 292, 295-96 (2002), we held that summary dismissal is a procedure applicable only to petitions under the Act; it cannot be applied to petitions under section 2 \u2014 1401 of the Code. No equivalent to summary dismissal exists in the Code.\nIn Gaines, we reversed the procedurally irregular dismissal of a prisoner\u2019s section 2 \u2014 1401 petition. The trial court had appointed the public defender to represent the defendant and had set a hearing date. The State filed a \u201cmotion to reconsider,\u201d the body of which addressed the merits of the defendant\u2019s petition. Gaines, 335 Ill. App. 3d at 293. At the hearing on the motion, the State argued that the court could dismiss the petition sua sponte, and without opportunity for either party to respond, as if it were a postconviction petition. The public defender stated he had no prior notice of the motion and was unprepared to respond, and, after argument from the State only, the trial court dismissed the petition. Gaines, 335 Ill. App. 3d at 294. Because the trial court\u2019s procedure denied the defendant any meaningful opportunity to respond to what was functionally a motion, we held that the dismissal was error. We noted the distinctness of petitions under section 2 \u2014 1401 and the Act:\n\u201cSection 2 \u2014 1401 and the Act both afford procedures for advancing a collateral challenge to a criminal conviction, but they are separate and distinct remedial provisions. Thus, for example, while only constitutional claims are cognizable in a postconviction proceeding [citation], this limitation does not apply in proceedings under section 2 \u2014 1401 [citation].\nMore importantly, the particular statutory procedures applicable to petitions under the Act do not apply to section 2 \u2014 1401 proceedings. The Act instructs the trial court to independently examine a postconviction petition within 90 days after it is filed. [Citation.] *** The court is directed to summarily dismiss the petition if the court finds that it is \u2018frivolous or is patently without merit.\u2019 [Citation.] *** The Act provides that after the court\u2019s summary review counsel may be appointed for indigent defendants. [Citation.] In contrast, section 2 \u2014 1401 has no corresponding provision for independent examination by the trial court, nor is the trial court authorized to summarily dismiss a section 2 \u2014 1401 petition. Moreover, unlike proceedings under the Act, there is no statutory basis for the appointment of counsel in a section 2 \u2014 1401 proceeding.\u201d Gaines, 335 Ill. App. 3d at 295-96.\nThe process of judicial review of a petition under the Act \u2014 without comment by either party \u2014 is a significant and unusual departure from the adversary process. The legislature has mandated that departure in the specific context of the Act. We see no possible basis for importing such an unusual procedure into matters governed by the Code of Civil Procedure.\nIn Gaines, we noted that in proper proceedings on a section 2 \u2014 1401 petition, the opponent of the petition must file a motion to dismiss or else answer it. Gaines, 335 Ill. App. 3d at 296. Further, \u201cbasic notions of fairness dictate that the defendant be afforded notice of, and an opportunity to respond to, any motion or responsive pleading by the State.\u201d Gaines, 335 Ill. App. 3d at 296. Here, since we reject the trial court\u2019s characterization of defendant\u2019s petition as a postconviction petition, we must characterize the trial court\u2019s action as a sua sponte motion to dismiss. Basic notions of fairness dictate that defendant be afforded the same notice and opportunity to respond that he would have had if the State had filed the motion to dismiss. Peterson v. Randhava, 313 Ill. App. 3d 1, 12 (2000), citing English v. Cowell, 10 F.3d 434, 437 (7th Cir. 1993). The trial court\u2019s actions here resulted in a complete abrogation of the adversary process. The error could not be clearer.\nThe State contends that we can nevertheless affirm the dismissal of the section 2 \u2014 1401 petition on the grounds that the petition was meritless and the dismissal thus did not prejudice defendant. We disagree. In Gaines, we were not faced with this issue because the record on appeal was insufficient to allow us to determine whether there was merit to the issue raised in the defendant\u2019s petition. Gaines, 335 Ill. App. 3d at 296-97. We now conclude that the proceedings by which defendant\u2019s petition was dismissed were too far removed from those to which he was entitled for us to hold that he suffered no prejudice.\nWe must reach this issue because we agree with the State that the claim put forward in defendant\u2019s petition is meritless. Defendant claims that he did not voluntarily enter his guilty plea because the trial court, in violation of Supreme Court Rule 402(a) (177 Ill. 2d R. 402(a)), did not inform him that he was subject to three years\u2019 mandatory supervised release upon completion of his term of imprisonment. We will vacate a guilty plea based on an improper admonition regarding penalties only if the errors in the admonition prejudiced the defendant. People v. Mendoza, 342 Ill. App. 3d 195, 201 (2003). Here, defendant pleaded guilty pursuant to an agreement by which the State agreed to recommend a sentencing cap of 40 years. The court admonished him that it could give him a sentence of \u201cnot less than 20 nor more than 60 [years\u2019 imprisonment], but although the Court isn\u2019t bound by the State\u2019s recommendations, the agreement is to cap it at 40. *** I would not impose a sentence greater than that.\u201d It did not mention a term of mandatory supervised release. The court sentenced him to 34 years\u2019 imprisonment, so that his total term, including 3 years\u2019 mandatory supervised release, was less than what the court told him he might receive. Under these circumstances, we find it hard to conceive of a way in which he could have been prejudiced by the incomplete admonishment. Adding to the almost certain futility of the petition is the requirement of section 2 \u2014 1401 that the petition \u201cmust be filed not later than 2 years after the entry of the order or judgment\u201d unless \u201cthe person seeking relief [was] under legal disability or duress or the ground for relief [was] fraudulently concealed.\u201d 735 ILCS 5/2 \u2014 1401(c) (West 2002). Defendant filed his petition eight years after the court entered the judgment. We note, however, that the State might have waived the limitations period. See People v. Pinkonsly, 207 Ill. 2d 542, 562-63 (2003); People v. Pinkonsly, 331 Ill. App. 3d 984, 986 (2002).\nOur determination that the trial court would almost certainly dismiss defendant\u2019s petition after proper proceedings is not enough for us to conclude that he was not prejudiced by the grossly improper manner in which his petition was dismissed. We consider the reasoning of the Supreme Court in Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993), to express the difficulty in determining whether a person has been prejudiced by being subject to a fundamentally incorrect form of proceeding. The Court held that when a trial court had given a jury improper reasonable-doubt instructions, there had been no \u201cjury verdict\u201d within the meaning of the sixth amendment, and that \u201c[t]here is no object *** upon which harmless-error scrutiny can operate.\u201d (Emphasis in original.) Sullivan, 508 U.S. at 280, 124 L. Ed. 2d at 190, 113 S. Ct. at 2082. Thus, we can conduct harmless-error analysis only by examining fundamentally proper proceedings and considering whether, if we removed the effect of an error, we would obtain the same result. Where the error is that the proceedings were of fundamentally the wrong kind, we cannot speculatively recreate the right proceedings to determine what should have been the result. A section 2 \u2014 1401 petition invokes an adversarial proceeding brought under the Code. Despite the predictability of the ultimate dismissal of this petition, we think that the procedure by which the trial court dismissed it was simply too far removed from what defendant was entitled to for us to review the matter as if defendant had been given notice and an opportunity to answer.\nWe note that Gaines and our current decision appear to conflict with a Fourth District case, Mason v. Snyder, 332 Ill. App. 3d 834 (2002). In that case, the court held that a trial court can dismiss a prisoner\u2019s complaint for mandamus as if it were a petition under the Act. (Although Mason concerned a complaint for mandamus, nothing in the court\u2019s reasoning made the decision inapplicable to other civil remedies that a prisoner might seek.) The court held that such power is derived from the trial court\u2019s inherent power to dismiss sua sponte a complaint for failure to state a cause of action. Mason, 332 Ill. App. 3d at 840. Although we agree that a trial court has such power (e.g., Rhodes v. Mill Race Inn, Inc., 126 Ill. App. 3d 1024, 1028 (1984)), and agree that a dismissal under the conditions described is equivalent to a sua sponte dismissal, we think that the Mason court erred in neglecting to consider the necessity of notice and the opportunity to respond, which were not at issue in the cases cited by the Mason court. Where the absence of notice and the opportunity to respond has been challenged, our courts have found that they are necessary to due process. See Perry v. Minor, 319 Ill. App. 3d 703, 710 (2001) (reviewing cases where sua sponte dismissals were reversed because of insufficient notice or opportunity to respond).\nOur conclusion here with regard to defendant\u2019s procedural rights also conflicts with another Fourth District case, People v. Potter, 174 Ill. App. 3d 217 (1988). There, the court upheld the summary dismissal of a \u201cPetition for Release from Confinement\u201d which the trial court found to be, in substance, a postconviction petition. Potter, 174 Ill. App. 3d at 218-19. The defendant argued that he had not intended to file a postconviction petition (and indeed, was unaware that such a mode of relief even existed) and so was ill-prepared to comply with the technical requirements of a petition under the Act. Further, the re-characterization put him at risk of waiving any other claims he might have included in a document intended to be a petition under the Act. Potter, 174 Ill. App. 3d at 218. Despite this, the court, citing People ex rel. Palmer v. Twomey, 53 Ill. 2d 479 (1973), held that, because petitions under the Act are to be liberally construed, it was proper to treat the petition as one under the Act. Potter, 174 Ill. App. 3d at 218-19.\nThe holding in Potter puts a perverse twist on the teaching of Palmer. In that case, our supreme court stated:\n\u201cIt is apparent that the same lack of legal knowledge which causes a prisoner to draft an inadequate post-conviction petition might result in his selecting the wrong method of collaterally attacking his conviction. A salutary result, consistent with the intent of the [Act] *** would be achieved if the circuit court, upon finding that a pro se petition, however labeled, and however inartfully drawn, alleged violations of the petitioner\u2019s rights cognizable in a post-conviction proceeding, would thereafter, for all purposes, treat it as such. This practice would enable the issues to be properly framed and the matter adjudicated in one proceeding and with finality.\u201d Palmer, 53 Ill. 2d at 484.\nTo the extent that Palmer created a requirement that in some circumstances a trial court treat documents containing the substance of a petition under the Act as a petition under the Act, it has now been abrogated by statute. Pub. Act 89 \u2014 609, eff. January 1, 1997 (adding 725 ILCS 5/122 \u2014 1(d)). Beyond this, we do not think that the court intended Palmer to authorize recharacterization when it leads only to summary dismissal. Palmer clearly was intended to remove a technical barrier to the provision of relief under the Act to pro se petitioners. Potter turns the Act into a trap for the unwary by which the assertion of one constitutional claim can lead to a waiver of any others \u2014 without any. opportunity for the defendant to add claims by amendment when the defendant learns that the nature of the proceeding has changed. See Pub. Act 93 \u2014 493, eff. January 1, 2004 (adding 725 ILCS 5/122 \u2014 1(f), which formalizes the rule that a defendant is generally entitled to file only one postconviction petition).\nWe recognize that defendants may use section 2 \u2014 1401 petitions (or habeas corpus petitions or mandamus complaints) in an attempt to circumvent the restrictions against multiple postconviction petitions. The approach taken in Potter may provide an apparent shortcut to the removal of such filings from the trial courts\u2019 dockets. It is not an acceptable shortcut. For defendants who, unlike defendant here, have never previously filed postconviction petitions, there is real risk of unintentionally waiving valid constitutional claims. Our supreme court has stated that the intention of the Act is to offer a defendant \u201c \u2018one complete opportunity to show a substantial denial of his constitutional rights.\u2019 \u201d People v. Free, 122 Ill. 2d 367, 376 (1988), quoting People v. Logan, 72 Ill. 2d 358, 370 (1978). Where an unintentional waiver has occurred, there is no completeness, and a major goal of the Act has been frustrated. Even for defendants who have previously filed post-conviction petitions, we do not accept the expansion of summary dismissal procedure. Section 122 \u2014 2.1 of the Act allows summary dismissal of a postconviction petition only if the allegations in the petition, taken as true and liberally construed, fail to present the gist of a constitutional claim. See People v. Edwards, 197 Ill. 2d 239, 244 (2001). We believe that this is the entire scope of the legislatively created nonadversarial proceeding.\nThe recharacterization process will inevitably raise issues not within the scope of summary dismissal. At the very least, it should raise the issue of whether the filing was also cognizable in the form the defendant filed it. Here, that would mean that the trial court would need to decide whether defendant had shown both a meritorious defense to the charges against him and due diligence in presenting it. See Pinkonsly, 207 Ill. 2d at 565. Although there would be no difficulty in concluding that defendant had not demonstrated the existence of a meritorious defense, this issue is not within the scope of issues considered for summary dismissal. Summary dismissal is so significant a departure from the adversary system that we will not expand it in the slightest. When a trial court allows a recharacterized petition to proceed to the second stage, in which it appoints counsel for the defendant and the State can bring a motion to dismiss, there is no such problem, as the proceedings are adversarial and counsel can contest the recharacterization, if appropriate.\nFor the reasons given, we reverse the judgment of the circuit court of Winnebago County in appeal No. 2 \u2014 02\u20141097 and remand the cause for proper proceedings on defendant\u2019s section 2 \u2014 1401 petition. In appeal No. 2 \u2014 03\u20140205, we affirm.\nNo. 2 \u2014 02\u20141097, Reversed and remanded.\nNo. 2 \u2014 03\u20140205, Affirmed.\nHUTCHINSON, EJ., and GILLERAN JOHNSON, J., concur.\nYet another Fourth District case, Schlemm v. Cowan, 323 Ill. App. 3d 318 (2001), which involved the dismissal of a petition for habeas corpus, includes dicta taking a position similar to that in Potter.\nThe same reasoning that leads us to reject Potter governs our interpretation of a passage of dicta in Pinkonsly:\n\u201cThe defendant does not argue that the trial court should have considered his section 2 \u2014 1401 petition as a postconviction petition. See People ex rel. Palmer v. Twomey, 53 Ill. 2d 479, 484 (1973); People v. Gandy, 227 Ill. App. 3d 112, 139 (1992) ([citing Palmer and People v. Riley, 40 Ill. App. 3d 679, 681 (1976) for the proposition that] \u2018[w]here the section 2 \u2014 1401 petition is prepared pro se and alleges a deprivation of constitutional rights cognizable under the Post-Conviction Hearing Act, the trial court is to treat it as such\u2019). Such an argument would fail because, although his initial petition was pro se, his amended petition, which is the subject of this appeal, was prepared by an attorney and clearly brought under section 2 \u2014 1401.\u201d Pinkonsly, 207 Ill. 2d at 566.\nWe must read this simply to say only that Palmer does not apply to the facts of the case because an attorney prepared the petition. To read the reference to Gandy as mandating recharacterization of all pro se documents filed as section 2 \u2014 1401 petitions as postconviction petitions when they state claims that are of constitutional character would twist the remedial character of Palmer and its progeny.", "type": "majority", "author": "JUSTICE BYRNE" } ], "attorneys": [ "G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Paul A. Logli, State\u2019s Attorney, of Rockford (Martin E Moltz and Diane L. Campbell, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEON L. PEARSON, Defendant-Appellant.\u2014THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEON L. PEARSON, Defendant-Appellant.\nSecond District\nNos. 2-02-1097, 2-03-0205 cons.\nOpinion filed December 30, 2003.\nG. Joseph Weller and Paul J. Glaser, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nPaul A. Logli, State\u2019s Attorney, of Rockford (Martin E Moltz and Diane L. Campbell, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0191-01", "first_page_order": 211, "last_page_order": 219 }