{ "id": 4267145, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMY THOMPSON, Defendant-Appellant", "name_abbreviation": "People v. Thompson", "decision_date": "2006-10-25", "docket_number": "No. 1\u201405\u20140523", "first_page": "348", "last_page": "353", "citations": [ { "type": "official", "cite": "368 Ill. App. 3d 348" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "361 Ill. App. 3d 664", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3363877 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "686-88" }, { "page": "696" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/353/0684-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 3, "year": 2004, "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 3, "year": 2000, "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "216 Ill. 2d 58", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3828089 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/ill-2d/216/0058-01" ] }, { "cite": "216 Ill. 2d 45", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3828632 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/ill-2d/216/0045-01" ] }, { "cite": "331 Ill. App. 3d 948", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209201 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "961" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/0948-01" ] } ], "analysis": { "cardinality": 597, "char_count": 12999, "ocr_confidence": 0.768, "pagerank": { "raw": 6.091404446090534e-08, "percentile": 0.38030016421806834 }, "sha256": "f816a2651965790cb154565fc622a9ec04291b0e07fe02243e0c180f45515895", "simhash": "1:302820a647e48a85", "word_count": 2064 }, "last_updated": "2023-07-14T20:06:43.500571+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. TOMMY THOMPSON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nDefendant Tommy Thompson was convicted of three counts of first degree murder and two counts of armed robbery. After pursuing a direct appeal (see People v. Thompson, No. 1\u201495\u20144424 (March 12, 1998) (unpublished order under Supreme Court Rule 23)), filing two postconviction petitions pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122\u20141 et seq. (West 1998)), both of which were dismissed by the trial court, and appealing the dismissal of one of his postconviction petitions (see People v. Thompson, 331 Ill. App. 3d 948 (2002)), defendant filed a petition for relief pursuant to section 2 \u2014 1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2\u2014 1401 (West 2004)). The trial court summarily dismissed defendant\u2019s section 2 \u2014 1401 petition. On appeal, defendant contends that the trial court erred in summarily dismissing his section 2 \u2014 1401 petition after recharacterizing it as a petition filed pursuant to the Act without notifying him of its intent to recharacterize the petition, warning him that subsequent postconviction petitions would be subject to successive-petition restrictions or providing him with an opportunity to amend or withdraw the petition as required by People v. Shellstrom, 216 Ill. 2d 45 (2005), and People v. Pearson, 216 Ill. 2d 58 (2005). Alternatively, defendant contends that the trial court did not have statutory authority to summarily dismiss his section 2 \u2014 1401 petition.\nFollowing a jury trial, on July 14, 1995, defendant was convicted of three counts of first degree murder and two counts of armed robbery in connection with the shooting death of a taxi driver. Defendant was sentenced to extended terms of 70 years\u2019 imprisonment for each of the murder counts to be served consecutively with extended terms of 35 years\u2019 imprisonment for each of the robbery counts. On direct appeal, we vacated defendant\u2019s convictions of two of the murder counts and one of the robbery counts. We further vacated defendant\u2019s sentence for robbery, imposing a term of 30 years\u2019 imprisonment in its lieu.\nThereafter, in December 1998 and September 1999, defendant filed two pro se postconviction petitions pursuant to the Act. The first alleged various claims of ineffective assistance of trial and appellate counsel. The second raised additional claims of ineffective assistance, claims that he was denied his right to a speedy trial and claims that he was deprived of his right to a fair trial by the introduction of inflammatory evidence. Both petitions were dismissed and defendant appealed the dismissal of the second. On appeal, defendant contended, inter alia, that his extended and consecutive sentences violated the constitutional mandates of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We acknowledged that the issue was waived because it had not been raised in defendant\u2019s postconviction petition but chose to address it nonetheless. We found that \u201cAp prend\u00ed claims are not cognizable to untimely, successive postconviction petitions,\u201d like defendant\u2019s, and accordingly held that defendant\u2019s Apprendi challenges were not cognizable to the appeal. Thompson, 331 Ill. App. 3d at 961.\nOn November 18, 2004, defendant filed a section 2 \u2014 1401 petition for relief from judgment alleging that his extended and consecutive sentences violated Apprendi and Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004).\nThe trial court summarily dismissed defendant\u2019s petition in an order filed on January 21, 2005. In its order, the court observed that defendant had requested relief pursuant to section 2 \u2014 1401 of the Code and reviewed the purpose and operation of that provision. The court noted that final judgment in defendant\u2019s case had been rendered on July 17, 1995, and that his petition was filed more than nine years later on November 18, 2004. The court found that, pursuant to section 2 \u2014 1401(c) of the Code, which provided that a petition for relief could not be filed later than two years after an entry of final judgment, defendant\u2019s section 2 \u2014 1401 petition was untimely. Accordingly, the court summarily dismissed the petition. The court cited People v. Schrader, 353 Ill. App. 3d 684 (2004), in further finding that, timeliness aside, the petition should be dismissed because neither Apprendi nor Blakely applies retroactively to collateral proceedings.\nAlso on January 21, 2005, the trial court simply stated in court that defendant\u2019s \u2018 \u2018 [p]ost-conviction petition is denied. Defendant to be provided with a copy of the order.\u201d\nOn appeal, defendant first contends that the trial court erred in failing to admonish him and afford him an opportunity to amend or withdraw his petition pursuant to Shellstrom and Pearson when it re-characterized his section 2 \u2014 1401 petition as a postconviction petition filed pursuant to the Act. The State counters that the trial court\u2019s written order makes clear that it did not recharacterize defendant\u2019s petition.\nWhile defendant is correct that, in cases of confusion, a court\u2019s oral pronouncement will control over its written pronouncement (see People v. Savage, 361 Ill. App. 3d 750, 762 (2005)), in this case, there is no confusion. On the contrary, the court clearly did not recharacterize defendant\u2019s section 2 \u2014 1401 petition as a postconviction petition filed pursuant to the Act. Here, the court\u2019s written order clearly acknowledged that defendant\u2019s petition was filed pursuant to section 2 \u2014 1401 of the Code. The court explored the operation and purpose of that provision and explicitly dismissed the petition on the basis of untimeliness under subsection 2 \u2014 1401(c).\nIn our view, defendant places too much weight on the court\u2019s oral statement that defendant\u2019s \u2018\u2018[p]ost-conviction petition is denied.\u201d While the phrase \u201cpost-conviction petition\u201d may connote a petition filed pursuant to the Act, a section 2 \u2014 1401 petition is also a postconviction petition in that it is a petition for relief filed after a defendant\u2019s conviction. In light of the court\u2019s written order, in which it very clearly did not recharacterize defendant\u2019s section 2 \u2014 1401 petition as a post-conviction petition filed pursuant to the Act, we find it clear that the court did not intend the meaning that defendant attempts to attach to its oral statement. Because the court did not recharacterize defendant\u2019s petition, it was not bound by the requirements of Shellstrom and Pearson.\nHaving found that the court did not recharacterize defendant\u2019s petition, we turn now to his alternative contention that the trial court was not statutorily authorized to summarily dismiss his section 2 \u2014 1401 petition.\nAt present, there is a split within the appellate court concerning the issue of whether a section 2 \u2014 1401 petition may be summarily dismissed and the issue is pending before the supreme court in People v. Vincent, No. 1\u201404\u20141802 (September 27, 2005) (unpublished order under Supreme Court Rule 23), appeal allowed, 217 Ill. 2d 623 (2006). While the Fourth District has held that a trial court may summarily dismiss a section 2 \u2014 1401 petition if it is frivolous and without merit (see, e.g., People v. Ryburn, 362 Ill. App. 3d 870, 877 (2005); People v. Bramlett, 347 Ill. App. 3d 468, 472-72 (2004)), the Third and Second Districts have held that a trial court commits reversible error in summarily dismissing a section 2 \u2014 1401 petition without giving the petitioner notice and an opportunity to respond and, furthermore, that the harmless error analysis is not applicable (see, e.g., People v. Coleman, 358 Ill. App. 3d 1063, 1066-71 (3d Dist. 2005); People v. Mescall, 347 Ill. App. 3d 995, 1000-01 (2d Dist. 2004)), and this district has held that, while the trial court is not authorized to summarily dismiss a section 2 \u2014 1401 petition, the harmless error analysis should be applied to such dismissals (see, e.g., People v. Allen, 366 Ill. App. 3d 903, 906-08 (2006); People v. Dyches, 355 Ill. App. 3d 225, 227-29 (2005); People v. Anderson, 352 Ill. App. 3d 934, 939-48 (2004); Schrader, 353 Ill. App. 3d at 686-88).\nAs we recently explained in Allen:\n\u201cAnderson delineated three reasons supporting its holding prohibiting the use of the summary dismissal procedure outside of the [Act], including that it was unfair for a defendant, when faced with the proposed dismissal of his section 2 \u2014 1401 petition, to be deprived of notice and an opportunity to respond, and that the legislature expressly provided for the summary dismissal of post-conviction petitions in the Act, but did not do so in section 2 \u2014 1401. [Citation.] Although the Anderson court held that the circuit court erred in summarily dismissing the defendant\u2019s section 2 \u2014 1401 petition, it concluded that a harmless error analysis should apply where the defects in the petition are patently incurable. [Citation.] In so holding, the Anderson court relied on People v. Taylor[, 349 Ill. App. 3d 718 (2004)], wherein this court held that regardless of whether the trial court had the authority to summarily dismiss a section 2 \u2014 1401 petition, the appellate court could look beyond any alleged procedural defect where the defendant\u2019s petition raised a pure question of law, was frivolous and completely without merit, and no prejudice resulted from the trial court\u2019s dismissal. [Citation.] The Anderson and Taylor courts further reasoned that where the dismissal of the petition is inevitable and further proceedings in the circuit court would have little remedial effect and only delay dismissal, the summary dismissal should be affirmed based on harmless error. [Citations.] Although summary dismissal procedures may deprive a litigant of a legitimate opportunity to correct curable defects .found in his pleadings, harmless error analysis should still be applied where the defects are patently incurable.\u201d Allen, 366 Ill. App. 3d at 907-08.\nWe adhere to the holdings of Allen, Anderson and Taylor and find that while summary dismissal is not proper under section 2 \u2014 1401 of the Code, a trial court\u2019s erroneous summary dismissal is subject to the harmless error analysis and will be considered harmless if the defects of the section 2 \u2014 1401 petition are patently incurable.\nHere, the claims alleged in defendant\u2019s section 2 \u2014 1401 petition are frivolous and completely without merit. In his petition, defendant alleged that his extended and consecutive sentences violate Apprendi and Blakely. In Apprendi, the Supreme Court held that, \u201cother than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.\u201d Weidner v. Cowan, 361 Ill. App. 3d 664, 665 (2005). In Blakely, the Supreme Court further held that the relevant \u201cstatutory maximum\u201d for Apprendi purposes is the maximum a judge may impose without any additional findings rather than the maximum he may impose after finding additional facts not submitted to the jury. However, our supreme court has held that Apprendi does not apply retroactively to cases on collateral review, such as defendant\u2019s. People v. De La Paz, 204 Ill. 2d 426, 439 (2003). Additionally, in this case, as in Weidner, defendant\n\u201cfails to explain adequately why Blakely, which is simply an application of Apprendi, is not bound by the De La Paz holding that Apprendi is not given retroactive effect. *** [Defendant\u2019s] sentencing challenge is indistinguishable from an Apprendi challenge complaining about the imposition of an extended-term sentence without the facts necessary to permit such sentence having been proven to a jury beyond a reasonable doubt.\u201d Weidner, 361 Ill. App. 3d at 666.\nWe agree with the Weidner court that De La Paz controls here and, therefore, Blakely does not apply retroactively to cases on collateral review. See also Schrader, 353 Ill. App. 3d at 696 (\u201c[ajbsent any binding authority compelling the retroactive application of Blakely to cases on collateral review, petitioner\u2019s request that this court do so here is declined. This conclusion takes into consideration our supreme court\u2019s ruling, under analogous circumstances, in De La Paz, where the court rejected the retroactive application of Apprendi\u201d).\nWe therefore find that the trial court\u2019s error in summarily dismissing defendant\u2019s section 2 \u2014 1401 petition was harmless. Accordingly, we affirm the judgment of the trial court.\nAffirmed.\nTHEIS, EJ., and KARNEZIS, J., concur.", "type": "majority", "author": "JUSTICE GREIMAN" } ], "attorneys": [ "Michael J. Pelletier and Linda Olthoff, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Mary L. Boland, Michele Grimaldi Stein, Natosha Cuyler-Sherman, and Jessica Pipersburgh, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMY THOMPSON, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201405\u20140523\nOpinion filed October 25, 2006.\nMichael J. Pelletier and Linda Olthoff, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Mary L. Boland, Michele Grimaldi Stein, Natosha Cuyler-Sherman, and Jessica Pipersburgh, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0348-01", "first_page_order": 366, "last_page_order": 371 }