{ "id": 3749273, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAMON J. DOMINGUEZ, Defendant-Appellant", "name_abbreviation": "People v. Dominguez", "decision_date": "2005-03-10", "docket_number": "Nos. 2-03-1016, 2-03-1212 cons.", "first_page": "872", "last_page": "886", "citations": [ { "type": "official", "cite": "356 Ill. App. 3d 872" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "106 Ill. App. 3d 878", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3029859 ], "year": 1982, "pin_cites": [ { "page": "888-89", "parenthetical": "pursuant to Supreme Court Rule 366(a)(1) (155 Ill. 2d R. 366(a)(1)), courts of review may sua sponte permit amendment of pleadings to conform with proof, if there is no prejudice" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0878-01" ] }, { "cite": "19 Ill. App. 3d 1001", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2699934 ], "year": 1974, "pin_cites": [ { "page": "1003-04", "parenthetical": "\"there is error when a trial court refuses to exercise discretion in the erroneous belief that it had no discretion as to the question presented\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/1001-01" ] }, { "cite": "316 Ill. App. 3d 682", "category": "reporters:state", "reporter": "Ill. 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App. 3d 911", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3642895 ], "year": 1986, "pin_cites": [ { "page": "913" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0911-01" ] }, { "cite": "341 Ill. App. 3d 621", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5572639 ], "year": 2003, "pin_cites": [ { "page": "627", "parenthetical": "\"[I]n order to withstand summary dismissal, defendant's petition must contain a 'simple statement which presents the gist of a claim for relief which is meritorious when considered in view of the record of the trial court proceedings' \" (emphasis omitted)" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/341/0621-01" ] }, { "cite": "353 Ill. App. 3d 361", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3365078 ], "year": 2004, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/353/0361-01" ] }, { "cite": "333 Ill. App. 3d 768", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 485967 ], "year": 2002, "pin_cites": [ { "page": "773", "parenthetical": "\"At the preliminary stage, a petition need present only the gist of a substantial claim that the defendant's constitutional rights were violated\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/0768-01" ] }, { "cite": "338 Ill. App. 3d 262", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 25406 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "263-64", "parenthetical": "\"The court, without input from the State, must assess in the summary review stage whether the petition's allegations, liberally construed and taken as true, set forth a constitutional claim for relief'" }, { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/338/0262-01" ] }, { "cite": "342 Ill. App. 3d 547", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3473111 ], "year": 2003, "pin_cites": [ { "page": "549", "parenthetical": "\"[A] petition need only state the 'gist' of a constitutional claim\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/0547-01" ] }, { "cite": "183 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209962 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "380-81" }, { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0366-01" ] }, { "cite": "349 Ill. App. 3d 475", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5436683 ], "year": 2004, "pin_cites": [ { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/349/0475-01" ] }, { "cite": "345 Ill. App. 3d 700", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 1209206 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "1008-13" }, { "page": "1017" }, { "page": "1013-15" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/1006-01" ] } ], "analysis": { "cardinality": 1170, "char_count": 38277, "ocr_confidence": 0.772, "pagerank": { "raw": 1.3022358842768954e-07, "percentile": 0.6224486446893236 }, "sha256": "6bfbbcb16252277fa4d3edb60fc4a950293e98910cafc1dca99f790fe5ef8569", "simhash": "1:b3b8d48ef34ab1f5", "word_count": 6138 }, "last_updated": "2023-07-14T16:18:02.423948+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. RAMON J. DOMINGUEZ, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE CALLUM\ndelivered the opinion of the court:\nFollowing a jury trial, defendant, Ramon J. Dominguez, was convicted of first-degree murder (720 ILCS 5/9 \u2014 1(a)(1), (a)(2) (West 1998)) and, following a fitness hearing, was sentenced to 28 years\u2019 imprisonment. This case currently is before this court on defendant\u2019s consolidated appeals from the trial court\u2019s dismissal of his postconviction petition and from the denial of his motion to reconsider that dismissal. Defendant argues that the trial court applied the wrong standard of review and therefore erred when it dismissed defendant\u2019s postconviction petition during the first stage of the proceedings. Although the trial court applied the correct standard, we reverse the trial court\u2019s decision and remand this cause for second-stage proceedings, because we hold that the court reached the wrong conclusion.\nI. FACTS\nBecause the facts of this case have been set forth in great detail in People v. Dominguez, 331 Ill. App. 3d 1006, 1008-13 (2002), this court\u2019s decision on defendant\u2019s direct appeal of his conviction and sentence, they will not be set forth here. What follows is this case\u2019s relevant procedural history.\nAfter this court affirmed defendant\u2019s conviction and sentence (Dominguez, 331 Ill. App. 3d at 1017), defendant, with the assistance of retained counsel, filed a timely postconviction petition on June 5, 2003. Specifically, the petition claimed that defendant was denied effective assistance of counsel because his trial counsel (1) failed to tender to the trial court or recommend to defendant that the jury be offered a lesser included offense instruction of involuntary manslaughter; (2) failed to have the alleged murder weapon independently examined; (3) failed to use an interpreter when discussing with defendant the possibility of tendering the lesser included offense instruction; and (4) failed to investigate defendant\u2019s mental health. Additionally, the petition claimed that defendant was denied a fair trial because the trial court did not issue sua sponte the lesser included offense instruction, and that the State violated its obligation under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), by not disclosing that defendant was being medicated.\nOn August 5, 2003, the trial court, in a written order, summarily dismissed the petition as frivolous and patently without merit. Specifically, the trial court ruled that defendant\u2019s trial counsel was not ineffective because (1) the failure to tender the lesser included offense instruction was the result of an \u201call-or-nothing\u201d trial strategy decided upon by defendant and his counsel; (2) the failure to have the gun independently examined was a matter of trial strategy, which was not called into doubt by the record or by the submission of affidavits from any potential witnesses or an explanation of the significance of their testimony; (3) the alleged failure to use an interpreter conflicted with the record and the trial court\u2019s own observations of and interaction with defendant, all of which demonstrated that defendant was able to communicate effectively with his attorneys; and (4) the failure to investigate defendant\u2019s mental health was not supported by any evidence not already considered by the trial court when it determined that there was no bona fide doubt about defendant\u2019s fitness to stand trial. Additionally, the trial court ruled that its failure to give the lesser included offense instruction sua sponte was not erroneous, because one was not tendered. Finally, the trial court ruled that defendant\u2019s claim that the State violated its obligation under Brady v. Maryland lacked merit because there was no evidence in the record, or affidavit stating, that defendant was unaware that he was being medicated or that he could not remember being given drugs. To the contrary, the court found, defendant identified the drugs he ingested and detailed their effects.\nAfter the trial court dismissed defendant\u2019s postconviction petition, defendant, on August 27, 2003, filed a pro se notice of appeal from that dismissal. On September 4, 2003, defendant, with the assistance of counsel, moved to withdraw his pro se notice of appeal, filed a new notice of appeal (amended on September 17, 2003), and filed a motion to reconsider the dismissal of his postconviction petition. The motion to reconsider asserted that the trial court had applied the wrong standard and sought to incorporate into the postconviction petition those Department of Corrections medical records that would support defendant\u2019s fitness claim. Attached to the motion were affidavits from defendant\u2019s trial counsel, stating, inter alia, that an interpreter was not used to advise defendant of his right to a lesser included offense instruction, and from defendant\u2019s priest, stating concerns that defendant went to trial while unable to understand his lawyer, who ignored those concerns.\nOn October 1, 2003, after brief arguments, the trial court denied defendant\u2019s request for a hearing on his motion to reconsider. During the arguments, the trial court expressed serious doubt as to whether it could hear the motion to reconsider, because the cause remained within the 90-day period allowed for the trial court to review the petition without input from any party. On October 24, 2003, defendant filed a timely notice of appeal from the trial court\u2019s refusal to hear the motion.\nII. JURISDICTION\nBefore proceeding to the merits of this case, there are jurisdictional issues that must be resolved. An appellate court is under a duty to consider its jurisdiction and to dismiss an appeal if jurisdiction is lacking. Ferguson v. Riverside Medical Center, 111 Ill. 2d 436, 440 (1985); Gilkey v. Scholl, 229 Ill. App. 3d 989, 992 (1992). Even if the issue is not raised by the parties, this court must determine the question of its jurisdiction (Carlson v. Powers, 225 Ill. App. 3d 410, 413 (1992)) prior to deciding the merits of an appeal (Steel City Bank v. Village of Orland Hills, 224 Ill. App. 3d 412, 416 (1991)). In this case, the primary issue is whether the trial court had jurisdiction over the motion to reconsider the dismissal of the postconviction petition.\nThis court lacks jurisdiction over, and cannot consider the parties\u2019 arguments on the merits of, an appeal taken from a trial court order when the trial court itself lacked jurisdiction to entertain the motion giving rise to the order being appealed. Village of Glenview v. Buschelman, 296 Ill. App. 3d 35, 42 (1998). In this case, the trial court expressed serious doubt as to whether it could hear the motion to reconsider because the cause remained within the 90-day period allowed for the trial court to review the petition without input from any party. The trial court, however, appears to have miscounted. Although the trial court has 90 days from the filing of a postconviction petition in which to review the petition without input from any party (725 ILCS 5/122 \u2014 2.1(a) (West 2002)), that period had expired by the time defendant filed his motion to reconsider. Defendant\u2019s September 4, 2003, motion to reconsider was filed 91 days after defendant\u2019s June 5, 2003, postconviction petition. We note that generally there is no bar to a defendant filing a timely motion to reconsider the summary dismissal of a postconviction petition. The summary dismissal of a postconviction petition is a final judgment in a civil proceeding. 725 ILCS 5/122\u2014 2.1(a)(2) (West 2002); People v. Wilson, 37 Ill. 2d 617, 619-20 (1967). A party may, within 30 days of the entry of a final judgment in a civil case, move the court to reconsider that judgment. 735 ILCS 5/2\u2014 1203(a) (West 2002); see also In re J.D., 317 Ill. App. 3d 445, 448 (2000). Indeed, defendants have exercised that right. See, e.g., People v. Newbolds, 352 Ill. App. 3d 678, 679 (2004) (noting that the defendant filed a motion to reconsider the first-stage dismissal of the postconviction petition). Therefore, defendant\u2019s motion to reconsider, which was filed 30 days after the entry of the order dismissing the postconviction petition, was both timely and proper. Consequently, this court does have jurisdiction over defendant\u2019s appeal from the trial court\u2019s refusal to hear his motion to reconsider.\nAs a result of defendant\u2019s timely and proper motion to reconsider, however, the notice of appeal from the dismissal of defendant\u2019s post-conviction petition, and the amended notice, are stricken. The final judgment dismissing a postconviction petition must be reviewed in accordance with the rules of the supreme court. 725 ILCS 5/122 \u2014 7 (West 2002). According to the supreme court rules, an appeal from a final judgment is perfected only through the filing of a notice of appeal. 188 Ill. 2d R. 606(a); see also 134 Ill. 2d R. 651(a). Furthermore, although postconviction proceedings are civil proceedings (Wilson, 37 Ill. 2d at 619-20), appeals therefrom shall be in accordance with the rules governing criminal appeals (134 Ill. 2d R. 651(d)). Consequently, the effect of defendant\u2019s filing of his motion to reconsider the dismissal of his postconviction petition is that the notice of appeal from that same dismissal order, and the amendment of that notice, are premature and must be stricken. 188 Ill. 2d R. 606(b); cf. People v. Clark, 314 Ill. App. 3d 181 (2000). Because defendant did not file a new notice of appeal from that dismissal, this court lacks jurisdiction over the appeal therefrom. See People v. Miraglia, 323 Ill. App. 3d 199, 204, 206 (2001). Therefore, appeal No. 2 \u2014 03\u20141016, the appeal from the August 5, 2003, dismissal of defendant\u2019s postconviction petition, is dismissed.\nNonetheless, in appeal No. 2 \u2014 03\u20141212, this court may decide whether the trial court applied the wrong standard when it dismissed defendant\u2019s postconviction petition. Although the timely notice of appeal specifically assigns error solely in the October 1, 2003, refusal to hear defendant\u2019s motion to reconsider, the dismissal of the postconviction petition was a step within the procedural progression leading up to the refusal to hear the motion to reconsider. Hence, the dismissal order is reviewable. Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 435-36 (1979); see also People v. Jones, 207 Ill. 2d 122, 138 (2003).\nIII. THE PROPER STANDARD FOR SUMMARY DISMISSAL AT THE FIRST STAGE OF A POSTCONVICTION PROCEEDING\nAlthough the trial court explicitly dismissed defendant\u2019s post-conviction petition as frivolous and patently without merit, defendant contends that the trial court applied the wrong standard to the dismissal. In support of his contention, defendant argues that the trial court explicitly stated the standard applicable to second-stage review of a postconviction petition, while inexplicably omitting a statement of the standard applicable to first-stage review. Specifically, defendant notes that the trial court wrote: \u201cTo be entitled to post-conviction relief, a defendant must establish a substantial deprivation of a federal or state constitutional right in the proceedings that produced the judgment being challenged\u201d; and, defendant notes, the trial court failed to cite the \u201cgist of a constitutional claim\u201d standard.\nDefendant\u2019s contention fails. The trial court\u2019s statement of the \u201csubstantial deprivation\u201d standard was nothing more than use of the \u201cgeneral terminology that is common in post-conviction proceedings.\u201d People v. Gaultney, 174 Ill. 2d 410, 422 (1996). The trial court clearly expressed: \u201cAt this stage, the court must determine, without input from the State, whether the petition is frivolous or is patently without merit.\u201d The court later stated that it could summarily dismiss only frivolous claims that are patently without merit, and then expressly did so. There is nothing that requires the trial court to expressly state the \u201cgist\u201d standard.\nNonetheless, defendant avers that he has set forth the gist of a constitutional claim, which he asserts is a low threshold where the allegations in the petition are taken as true and are construed liberally. In his motion to reconsider, defendant stated that the only issue that a court should address at the first stage is whether the gist of a constitutional claim has been presented, and he assigned error in the trial court\u2019s making findings of fact based on the record. We find that the standard presented by defendant limits the trial court\u2019s review of a postconviction petition to a degree that is not contemplated by the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122. \u2014 1 et seq. (West 2002)), because it restricts the court\u2019s review to the four corners of the petition.\nAt the first stage of a postconviction proceeding in a noncapital case, the trial court, within 90 days of the filing and docketing of a petition, shall review the petition and, in a written order that specifies findings of fact and conclusions of law, dismiss the petition if the court determines that the petition is frivolous or is patently without merit. 725 ILCS 5/122 \u2014 2.1(a)(2) (West 2002). Because more often than not the defendant will be filing the petition pro se (see People v. Porter, 122 Ill. 2d 64, 70-75 (1988)), the defendant\u2019s burden at the first stage is lower than at stages later in the proceedings, when the defendant is assisted by counsel. The purpose is to give indigents a meaningful opportunity to be heard. See Porter, 122 Ill. 2d at 73. Consequently, the supreme court has declared that the Act requires that a pro se petition present only the gist of a constitutional claim. People v. Boclair, 202 Ill. 2d 89, 99 (2002). The \u201cgist\u201d standard is a \u201clow threshold.\u201d Gaultney, 174 Ill. 2d at 418. Although a \u201cgist\u201d is something more than a bare allegation of a deprivation of a constitutional right (People v. Prier, 245 Ill. App. 3d 1037, 1040 (1993)), it is something less than a completely pled or fully stated claim (People v. Edwards, 197 Ill. 2d 239, 245 (2001)). Therefore, to set forth the \u201cgist\u201d of a constitutional claim, the pro se defendant \u201c \u2018need only present a limited amount of detail.\u2019 \u201d Edwards, 197 Ill. 2d at 245, quoting Gaultney, 174 Ill. 2d at 418. The defendant need not construct legal arguments or cite to legal authority (Porter, 122 Ill. 2d at 74); nor must the defendant plead sufficient facts from which the trial court could find a valid claim of deprivation of a constitutional right (Edwards, 197 Ill. 2d at 244-45).\nNotably, the \u201cgist\u201d standard was developed in cases involving pro se postconviction petitions, with this premise in mind:\n\u201c \u2018While it is obvious that counsel should be better able to more artfully draft a petition than an indigent petitioner unschooled in legal drafting, it is certainly not clear that an indigent petitioner could not present the gist of his claim so that the trial court could make an initial determination as to whether *** the claim is frivolous.\u2019 People v. Baugh (1985), 132 Ill. App. 3d 713, 717.\u201d Porter, 122 Ill. 2d at 74.\nThis case, however, does not involve a pro se petition, because defendant\u2019s petition and motion to reconsider were filed by and through his attorneys. This circumstance raises the question of whether a defendant assisted by counsel must state more than merely the gist of a constitutional claim. The supreme court, in People v. Rogers, 197 Ill. 2d 216, 221 (2001), did not mention the \u201cgist\u201d standard when the appeal involved a postconviction petition that had been filed with the assistance of counsel. Instead, the court stated: \u201cThe petition must enunciate clearly \u2018the respects in which petitioner\u2019s constitutional rights were violated\u2019 and must include \u2018affidavits, records, or other evidence supporting its allegations\u2019 or an explanation why such evidence is not attached.\u201d Rogers, 197 Ill. 2d at 221, citing 725 ILCS 5/122 \u2014 2 (West 1998). On the grounds that the record from the original trial proceedings contradicted the defendant\u2019s allegations of ineffective trial counsel and that no legal authority existed for the defendant\u2019s other allegations, the court affirmed the trial court\u2019s first-stage dismissal of the petition as patently without merit. Rogers, 197 Ill. 2d at 222-24.\nSimilarly, in People v. Paleologos, 345 Ill. App. 3d 700 (2003), the First District considered whether the record from the original trial proceedings contradicted the allegations in the defendant\u2019s petition that was filed with the assistance of counsel. The court found that the petition, which was dismissed at the first stage of the postconviction proceedings, contained allegations that were not rebutted by the record. Paleologos, 345 Ill. App. 3d at 706. Initially, the court did not mention the \u201cgist\u201d standard, stating: \u201cBased on the first-stage procedural posture of the instant case, the relevant question is, first, whether the petition alleges a constitutional deprivation, and, second, whether the petition was substantively rebutted by the record, rendering it frivolous or patently without merit.\u201d Paleologos, 345 Ill. App. 3d at 704. The court later reiterated this inquiry, stating: \u201c[C]onsistent with the terms of the Act and the purpose of the first stage, we address whether the petition alleges a constitutional deprivation unrebutted by the record, rendering the petition neither frivolous nor patently without merit.\u201d Paleologos, 345 Ill. App. 3d at 704-05. Ultimately, however, the court acknowledged the \u201cgist\u201d standard, stating: \u201cIf any one allegation states the gist of a constitutional deprivation, the entire petition should be docketed for second-stage review pursuant to sections 122 \u2014 4 through 122 \u2014 6 of the Act.\u201d Paleologos, 345 Ill. App. 3d at 706.\nDespite the failure of the supreme court in Rogers to apply the \u201cgist\u201d standard, there is no reason to hold petitions filed with the assistance of counsel to a higher standard than those filed pro se. Although courts generally construe the allegations made in a pro se filing more liberally than the allegations made in a filing prepared with the assistance of counsel, the requisite contents of the filing do not change. Turner-El v. West, 349 Ill. App. 3d 475, 479 (2004). Thus, regardless whether a postconviction petition is filed pro se or with the assistance of counsel, the petition must, at a minimum, state the gist of a constitutional claim. The problem in this case, however, is that defendant proposes that the only inquiry the court may make is whether the gist of a constitutional claim has been stated, without inquiry into the record. Such a proposition is contrary to the purpose of section 122 \u2014 2.1(a)(2) of the Act.\nThe purpose of section 122 \u2014 2.1(a)(2) of the Act is to permit trial courts to dismiss petitions that are frivolous or patently without merit. 725 ILCS 5/122 \u2014 2.1(a)(2) (West 2002). To make this determination, the trial court \u201cmay examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding.\u201d 725 ILCS 5/122 \u2014 2.1(c) (West 2002); Porter, 122 Ill. 2d at 76. Thus, the trial court\u2019s review of the petition is limited to the contents of the petition and the records of the relevant proceedings. The trial court may not accept input from either che defendant or the State (Gaultney, 174 Ill. 2d at 420) and may not engage in any review of matters beyond the allegations of the petition (Boclair, 202 Ill. 2d at 99).\nUnder the \u201cgist\u201d standard, the supreme court has placed other limitations upon the trial court. Defendant, however, mistakenly relies upon them. First, in his motion to reconsider, defendant relies upon People v. Boclair, 202 Ill. 2d at 99, for the proposition that the trial court may not make findings of fact. Citing People v. Coleman, 183 Ill. 2d 366 (1998), Boclair states: \u201cThe court is further foreclosed from engaging in any fact finding or any review of matters beyond the allegations of the petition.\u201d Boclair, 202 Ill. 2d at 99. Understood as defendant would prefer, this statement would be contrary to the mandate of section 122 \u2014 2.1(a)(2) of the Act, which requires the trial court to specify its findings of fact. When understood within the context of Coleman, however, its meaning is clear. The supreme court in Coleman, 183 Ill. 2d at 380-81, while discussing the restrictions on a trial court that conducts a dismissal hearing during the second stage of postconviction proceedings, stated: \u201c[0]ur past holdings have foreclosed the circuit court from engaging in any fact-finding at a dismissal hearing because all well-pleaded facts are to be taken as true at this point in the proceeding.\u201d Thus, it is clear that, during the first stage, the trial court may not engage in fact-finding (such as hearing witnesses), but that foreclosure does not prevent the trial court at the first stage from making findings of fact based only on the petition and the records of the relevant proceedings. In fact, the supreme court already has rejected the contention that the trial court\u2019s review is limited to review of the petition alone. Porter, 122 Ill. 2d at 75-76.\nSecond, defendant relies upon People v. Edwards, 197 Ill. 2d at 244, for the proposition that the trial court must take as true the allegations in the petition. Edwards states: \u201cA post-conviction petition is considered frivolous or patently without merit only if the allegations in the petition, taken as true and liberally construed, fail to present the \u2018gist of a constitutional claim.\u2019 \u201d Edwards, 197 Ill. 2d at 244, quoting Gaultney, 174 Ill. 2d at 418. Taken literally, this statement would nullify section 122 \u2014 2.1(c) of the Act, which permits the trial court at the first stage to examine the records of the relevant proceedings. We believe that the supreme court did not intend for its statement to have such an effect. In fact, the supreme court itself examined the record in jEdwards. The court stated:\n\u201cDefendant in the case at bar alleges that he repeatedly asked his attorney to file an appeal but that she had \u2018taken it or decided for herself not to file\u2019 one. For purposes of deciding whether defendant\u2019s petition is frivolous, we must take these allegations as true. [Citation.] There is nothing of record which indicates that defendant\u2019s counsel reviewed the plea proceedings for error or consulted with defendant regarding grounds for an appeal before deciding not to file the motion to withdraw the guilty plea.\u201d Edwards, 197 Ill. 2d at 253-54.\nPresumably, the result in Edwards would have been different if the record had the opposite indication. Therefore, the supreme court must have intended that only those allegations that are not rebutted by the record should be liberally construed and taken as true. Such an understanding is consistent with the Act and the supreme court\u2019s rulings, as it would be unreasonable and inefficient if a defendant\u2019s misrepresentation of the facts could permit a petition to proceed to the second stage when the defendant\u2019s rendition of the facts is rebutted by the record, thereby rendering the petition frivolous or patently without merit.\nThe vague and general terms sometimes used in the supreme court\u2019s rulings and the cases interpreting them have caused confusion regarding the proper construction of the standard for first-stage review of a postconviction petition. Indeed, this court has constructed the standard in many different ways. See, e.g., People v. Rivera, 342 Ill. App. 3d 547, 549 (2003) (\u201c[A] petition need only state the \u2018gist\u2019 of a constitutional claim\u201d); People v. Stivers, 338 Ill. App. 3d 262, 263-64 (2003) (\u201cThe court, without input from the State, must assess in the summary review stage whether the petition\u2019s allegations, liberally construed and taken as true, set forth a constitutional claim for relief\u2019); People v. Crane, 333 Ill. App. 3d 768, 773 (2002) (\u201cAt the preliminary stage, a petition need present only the gist of a substantial claim that the defendant\u2019s constitutional rights were violated\u201d). Consequently, this court is in need of a more succinct and accurate statement of the standard.\nIn constructing a more succinct and accurate standard, we note that a petition may state the \u201cgist\u201d of a constitutional claim, but that claim is not necessarily nonfrivolous or meritorious. See, e.g., People v. Shevock, 353 Ill. App. 3d 361, 365 (2004), quoting Edwards, 197 Ill. 2d at 257 (finding that the defendant\u2019s petition had stated the \u201cgist\u201d of a claim by alleging at least one factual element, but affirming summary dismissal on the grounds that the petition was \u201c \u2018so completely lacking in substance that it [was] frivolous [and] patently without merit\u2019 \u201d and \u201cso thoroughly sanitized of facts that there [were] none to take as true\u201d). Although defendant properly stated that \u201cthe question is, \u2018Did the Petitioner state the gist of a constitutional claim in his post-conviction petition?\u2019 \u201d that question is merely the first one. The second question is whether the allegations in the petition are rebutted by the record. Hence, the statement of a \u201cgist\u201d of a constitutional claim may be sufficient to survive summary dismissal at the first stage of a post-conviction proceeding, but the claim does not necessarily survive that fate once the record is taken into consideration. After all, the ultimate question is not merely whether the \u201cgist\u201d of a constitutional claim has been stated, but rather whether that claim is frivolous or patently without merit. Therefore, this court finds that, modified slightly, the First District\u2019s construction of the standard applicable to the review of a petition at the first stage of postconviction proceedings is workable for both pro se defendants and defendants represented by counsel, and is consistent with the Act and the principles and restraints espoused by the supreme court: whether, after the court takes as true and liberally construes all the allegations not rebutted by the record, the petition states the gist of a constitutional claim, thereby rendering the petition neither frivolous nor patently without merit. See Paleologos, 345 Ill. App. 3d at 704-05; see also People v. Deloney, 341 Ill. App. 3d 621, 627 (2003) (\u201c[I]n order to withstand summary dismissal, defendant\u2019s petition must contain a \u2018simple statement which presents the gist of a claim for relief which is meritorious when considered in view of the record of the trial court proceedings\u2019 \u201d (emphasis omitted)), quoting People v. Dredge, 148 Ill. App. 3d 911, 913 (1986).\nIV REVIEW OF DEFENDANT\u2019S CLAIMS\nKeeping in mind this construction of the standard for summary dismissal of a petition at the first stage of postconviction proceedings, this court must review defendant\u2019s claims. We review de novo the summary dismissal of a postconviction petition. Coleman, 183 Ill. 2d at 389. If any one claim states the gist of a constitutional deprivation, the entire petition should be docketed for proceedings pursuant to sections 122 \u2014 4 through 122 \u2014 6 of the Act. People v. Rivera, 198 Ill. 2d 364, 370-71 (2002).\nIn this case, at least one of defendant\u2019s claims states the gist of a constitutional deprivation. Defendant claims that he received ineffective assistance of counsel when his trial attorney failed to tender the lesser included offense instruction of involuntary manslaughter. Defendant\u2019s allegations in support of this claim are not rebutted by the record for the purposes of first-stage review under the Act.\nTo establish a claim of ineffective assistance of counsel, a defendant must show (1) that counsel\u2019s performance fell below an objective standard of reasonableness; and (2) that counsel\u2019s deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984); see also People v. Chandler, 129 Ill. 2d 233, 242 (1989). The question, therefore, is whether defendant\u2019s trial counsel\u2019s allegedly deficient performance \u201cso undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.\u201d Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692-93, 104 S. Ct. at 2064. More specifically, however, the question in this case is whether defendant stated the claim with allegations that are not rebutted by the record.\nIn this case, defendant alleges that his trial counsel\u2019s theory of defense was that defendant\u2019s act of killing his wife by pointing a loaded gun at her was accidental, or at most reckless, but not intentional or knowing. Given such a theory, defendant alleges, effective counsel would have either recommended or tendered a lesser included offense instruction of involuntary manslaughter, and the failure to have done so fell below the objective standard of reasonableness, the result of which prejudiced defendant.\nThe record in this case does not rebut defendant\u2019s allegation that his trial counsel presented a theory of recklessness; nor does the record rebut defendant\u2019s allegation that his trial counsel failed to tender the lesser included offense instruction. The issue here is whether defendant\u2019s counsel recommended to defendant that a lesser included offense instruction be offered. If such a recommendation occurred, then defendant\u2019s claim fails.\nAn all-or-nothing strategy is not a viable strategy, except when a defendant consents to it. People v. Lemke, 349 Ill. App. 3d 391, 401 (2004). A defendant\u2019s consent to an all-or-nothing strategy invokes the doctrine of invited error. Under the doctrine of invited error, a defendant may not request that counsel proceed in one manner at trial and then later contend on appeal that trial counsel acted in error. People v. Villarreal, 198 Ill. 2d 209, 227-28 (2001). In this case, if defendant\u2019s counsel recommended to defendant that an involuntary manslaughter instruction be offered, and defendant refused that recommendation, then defendant invited the error that occurred at trial by virtue of not making the involuntary manslaughter instruction available to the jury. However, the record supports defendant\u2019s allegation. At defendant\u2019s fitness hearing, defendant\u2019s counsel stated: \u201cI don\u2019t ever recall making any recommendation with regards to a lesser included instruction.\u201d Additionally, regarding who made the ultimate decision whether to include the involuntary manslaughter instruction, defendant\u2019s counsel stated: \u201c[I]t would have been my ultimate decision, I guess, not to do that because I didn\u2019t recommend it and he didn\u2019t say that he wanted it.\u201d Consequently, the record does not rebut defendant\u2019s allegation. As trial counsel allegedly pursued an all-or-nothing strategy without defendant\u2019s consent, and as there is a reasonable probability that a different strategy would have produced a different result, defendant has stated the gist of a constitutional claim.\nWe note that this conclusion creates tension with this court\u2019s decision on defendant\u2019s direct appeal, in which this court affirmed the trial court\u2019s denial of defendant\u2019s posttrial motion that raised the same claim. Dominguez, 331 Ill. App. 3d at 1013-15. This tension is a result of this court\u2019s refusal to allow summary dismissal of a postconviction petition on the ground of res judicata (People v. Murray, 351 Ill. App. 3d 219, 221 (2004)), even though this court\u2019s actions in this case may be examined at this stage (725 ILCS 5/122 \u2014 2.1(c) (West 2002)). Even upon examination of this court\u2019s decision on defendant\u2019s direct appeal, this tension remains because of the different standards applicable at the different stages of this case. To defendant\u2019s direct appeal, this court applied the manifest-weight-of-the-evidence standard, through which this court gave deference to the trial court\u2019s determinations. Here, the standard is de novo, so the trial court receives no deference, and the \u201cgist\u201d standard is low, so defendant receives much deference. As a result, many of the trial court\u2019s credibility and factual determinations that this court used to affirm the trial court on direct appeal are inappropriate at this stage. For example, the trial court\u2019s determinations about defendant\u2019s language ability may not be considered, because neither this court nor the trial court may make such determinations at this stage. See People v. Broughton, 344 Ill. App. 3d 232, 236 (2003).\nDefendant\u2019s language ability is critical to a determination in this case because a legally valid decision to forgo a lesser included offense instruction must be made knowingly and intelligently by a defendant, who ultimately has control over the decision. See People v. Segoviano, 189 Ill. 2d 228, 240 (2000); People v. Brocksmith, 162 Ill. 2d 224, 229 (1994); People v. DePaolo, 317 Ill. App. 3d 301, 310-11 (2000). Here, the extent to which defendant can understand English has been, and remains, a disputed question of fact. Defendant, of course, alleges that he does not understand English well enough to have understood the concept of involuntary manslaughter. In general, however, a defendant\u2019s allegations must be supported by \u201caffidavits, records, or other evidence\u201d attached to the petition (725 ILCS 5/122 \u2014 2 (West 2002)), and, pursuant to the embattled holding of People v. Collins, 202 Ill. 2d 59, 66 (2002), failure either to attach such evidence or to explain its absence justifies summary dismissal. In this case, defendant failed to attach the requisite evidence to his petition. His motion to reconsider, however, contains affidavits that lend support to his claim. A motion to reconsider invokes the sound discretion of the trial court. Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 693 (2000). However, the trial court in this case failed to exercise any discretion over defendant\u2019s motion to reconsider because of its mistaken conclusion that the motion was premature. Consequently, there is error. See Avery v. Garbutt, 19 Ill. App. 3d 1001, 1003-04 (1974) (\u201cthere is error when a trial court refuses to exercise discretion in the erroneous belief that it had no discretion as to the question presented\u201d). Under the circumstances, this court may accept the affidavits, and we do so without prejudicing the State, as the affidavits were already in the record of the proceedings on defendant\u2019s posttrial motion. Cf. Luciani v. Bestor, 106 Ill. App. 3d 878, 888-89 (1982) (pursuant to Supreme Court Rule 366(a)(1) (155 Ill. 2d R. 366(a)(1)), courts of review may sua sponte permit amendment of pleadings to conform with proof, if there is no prejudice). In this situation, the failure to comply with such a technical rule should not cause defendant\u2019s postconviction petition to be summarily dismissed. After all, this court has noted: \u201cThe trend of recent cases such as Boclair and Edwards is to curtail trial courts\u2019 authority to dispose of postconviction petitions at the first stage. Pleading niceties and procedural technicalities should not be considered, and early dismissal is warranted only where a petition\u2019s allegations clearly lack substantive merit.\u201d Stivers, 338 Ill. App. 3d at 264.\nThe affidavits provide evidence that defendant did not understand his attorneys and that his attorneys did not use an interpreter to advise defendant of his right to a jury instruction on involuntary manslaughter. In its dismissal order, the trial court held that defendant\u2019s alleged inability to understand English conflicted with the record and with the court\u2019s own observations and interactions with defendant. The court erred in its decision. First, as the court stated, the record merely conflicts with defendant\u2019s allegations. Conflict alone, however, is not enough to refute allegations at this stage. Moreover, the court\u2019s own observations of defendant are not proper grounds for dismissal at this stage, and the court\u2019s own interactions with defendant are proper grounds only if the record demonstrates that those interactions refute the allegations. In this case, the record does not. From defendant\u2019s arraignment through his trial, the record reflects that defendant made three statements: \u201cYes\u201d; \u201cYeah, a little bit\u201d; and \u201cI don\u2019t wish to testify.\u201d The only statement defendant made without the assistance of an interpreter was \u201cYeah, a little bit,\u201d when asked if he understood what was happening. The trial court, however, decided that \u201ca little bit\u201d was not enough and ordered an interpreter. Certainly, this interaction is insufficient to rebut defendant\u2019s allegations and, at this stage, is insufficient to demonstrate that defendant had enough understanding to exercise control over the decision to exclude the involuntary manslaughter instruction. Therefore, there is no reason to dismiss defendant\u2019s petition at this stage.\nV CONCLUSION\nAppeal No. 2 \u2014 03\u20141016, the appeal from the August 5, 2003, dismissal of defendant\u2019s postconviction petition, is dismissed. In appeal No. 2 \u2014 03\u20141212, defendant has stated the gist of a constitutional claim, based on the allegations in his petition that are not rebutted by the record, that counsel was ineffective for not tendering or recommending an involuntary manslaughter instruction. Therefore, defendant\u2019s petition is not frivolous or patently without merit. The trial court\u2019s order in appeal No. 2 \u2014 03\u20141212 is hereby reversed, and this cause is remanded for second-stage proceedings.\nNo. 2 \u2014 03\u20141016, Appeal dismissed.\nNo. 2 \u2014 03\u20141212, Reversed and remanded.\nO\u2019MALLEY, RJ., and BYRNE, J., concur.\nThis statement is not meant to express this court\u2019s opinion as to the merits of a res judicata analysis of this case. Rather, we make this statement solely for the purpose of acknowledging that, one way or the other, a res judicata analysis of this case may resolve the tension that exists between our decision here and our decision on defendant\u2019s direct appeal. That analysis, however, is reserved for proceedings during the second stage.", "type": "majority", "author": "JUSTICE CALLUM" } ], "attorneys": [ "Jed H. Stone and John Curnyn, both of Stone & Associates, of Waukegan, for appellant.", "Michael J. Waller, State\u2019s Attorney, of Waukegan (Martin E Moltz and Barry W Jacobs, 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. RAMON J. DOMINGUEZ, Defendant-Appellant.\nSecond District\nNos. 2\u201403\u20141016, 2\u201403\u20141212 cons.\nOpinion filed March 10, 2005.\nJed H. Stone and John Curnyn, both of Stone & Associates, of Waukegan, for appellant.\nMichael J. Waller, State\u2019s Attorney, of Waukegan (Martin E Moltz and Barry W Jacobs, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0872-01", "first_page_order": 890, "last_page_order": 904 }