{ "id": 4269972, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARRY McDONALD, Defendant-Appellant", "name_abbreviation": "People v. McDonald", "decision_date": "2007-05-29", "docket_number": "No. 1-04-0320", "first_page": "876", "last_page": "882", "citations": [ { "type": "official", "cite": "373 Ill. App. 3d 876" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "830 N.E.2d 731", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "358 Ill. App. 3d 102", "category": "reporters:state", "reporter": "Ill. 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App. 3d 700", "category": "reporters:state", "reporter": "Ill. 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HARRY McDONALD, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE WOLFSON\ndelivered the opinion of the court:\nDefendant Harry McDonald appeals the summary dismissal of his pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 et seq. (West 2002)). Defendant contends the circuit court erroneously dismissed his petition on the grounds that the petition failed to assert it was filed under section 122 \u2014 1 of the Act. That is, failed to use the section number. Defendant also contends the circuit court clerk\u2019s failure to \u201cpromptly\u201d docket his petition, as required by the Act, precluded the circuit court from summarily dismissing the petition. We reverse and remand.\nFACTS\nOn June 21, 2002, defendant filed a pro se postconviction petition with Dorothy Brown, clerk of the circuit court for Cook County. At the top of pages one, two, and three were the words: \u201cIll. Post-Conviction Petition.\u201d The words \u201cPost-Conviction Petition\u201d were at the top of pages four, five, six, seven, and eight. The appendix to the petition was headed \u201cIllinois Post-Conviction Petition.\u201d In the body of the one-page appendix were references to \u201c725 ILCS 5/122 \u2014 6,\u201d \u201c122 \u2014 4,\u201d and \u201c122 \u2014 5&6.\u201d\nThe petition was stamped \u201cReceived\u201d by the clerk\u2019s office on June 28, 2002. No further action was taken on the petition. On July 1, 2003, defendant filed a federal lawsuit seeking to compel action on his petition. The petition finally was docketed on October 30, 2003. After the petition was docketed, defendant\u2019s federal action was dismissed as moot.\nOn November 14, 2003, the circuit court, relying on section 122\u2014 1(d) of the Act, summarily dismissed defendant\u2019s petition. The court found defendant failed to specify his petition had been filed under the section pertaining to the Act, holding:\n\u201cAs I said before, on June 28th, he filed a stack of documents which are basically illegible, incomprehensible, hardly understandable at all and the clerk\u2019s office sent them \u2014 kept these documents, whatever they are until they sent them up to the courtroom within the last few weeks. After reviewing the documents in consideration, as I said before, 5 slash 122 dash 1 D, whatever he filed is dismissed. Defendant to be notified.\u201d\nThe circuit court did not discuss the petition\u2019s merits or lack of them. Nor did it use the words \u201cfrivolous\u201d or \u201cmerit.\u201d\nOn January 31, 2005, defendant filed a motion for summary remand in this court, contending the circuit court failed to enter its order within 90 days of the filing and docketing of the petition. Defendant also contended the circuit court erred in finding he failed to properly designate his pleading as a postconviction petition in a way required by section 122 \u2014 1(d) of the Act. We granted defendant\u2019s motion on March 4, 2005. On September 27, 2006, our supreme court entered a supervisory order directing us to vacate the summary remand and consider the appeal in light of People v. Brooks, 221 Ill. 2d 381, 851 N.E.2d 59 (2006). We vacated our order and set a briefing schedule.\nDECISION\nI. Section 122 \u2014 1(d)\u2019s Pleading Requirement\nDefendant contends the trial court erred in summarily dismissing his petition under section 122 \u2014 1(d) of the Act. Defendant contends the captions \u201c111. Post-Conviction Petition\u201d and \u201cPost-Conviction Petition\u201d written across the pages of the pleading and the express citations to the Act contained in the appendix to the petition established compliance with section 122 \u2014 1(d).\nThe issue before us requires us to interpret the statute, a question of law we review de novo. People v. Donoho, 204 Ill. 2d 159, 172, 788 N.E.2d 707 (2003). Our primary goal in interpreting a statute is to give effect to the intent of the legislature. People v. Phelps, 211 Ill. 2d 1, 15, 809 N.E.2d 1214 (2004). The most reliable indication of legislative intent is the language of the statute, given its plain and ordinary meaning. Phelps, 211 Ill. 2d at 15. \u201cWe will not depart from the plain language of the statute by reading into it exceptions, limitations, or conditions that conflict with the express legislative intent.\u201d People v. Blair, 215 Ill. 2d 427, 443, 831 N.E.2d 604 (2005).\nSection 122 \u2014 1(d) provides:\n\u201cA person seeking relief by filing a petition under this Section must specify in the petition or its heading that it is filed under this Section. A trial court that has received a petition complaining of a conviction or sentence that fails to specify in the petition or its heading that it is filed under this Section need not evaluate the petition to determine whether it could otherwise have stated some grounds for relief under this Article.\u201d 725 ILCS 5/122 \u2014 1(d) (West 2002).\nThe controversy in this case arises from the legislature\u2019s use of the word \u201cSection.\u201d The State contends the word \u201csection\u201d never is used in the Post-Conviction Hearing Act to describe the Act in its entirety, indicating the legislature\u2019s use of the word means a postcon-viction petition must expressly state it is filed under section 122 \u2014 1 of the Act. The State contends defendant failed to meet this plainly stated requirement.\nThe long-held view is that the Act must be \u201c \u2018liberally construed to afford a convicted person an opportunity to present questions of deprivation of constitutional rights.\u2019 \u201d People v. Paleologos, 345 Ill. App. 3d 700, 708, 803 N.E.2d 108 (2003), quoting People v. Correa, 108 Ill. 2d 541, 546, 485 N.E.2d 307 (1985). To survive summary dismissal, a postconviction petition need only present the gist of a constitutional claim. People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102 (1996). This is intended to he a low threshold and a defendant need only present a limited amount of detail. Gaultney, 174 Ill. 2d at 418. \u201cAt this stage, a defendant need not make legal arguments or cite to legal authority.\u201d Gaultney, 174 Ill. 2d at 418.\nIn People v. Purnell, 356 Ill. App. 3d 524, 528-29, 825 N.E.2d 1234 (2005), the court held that \u201c[b]ecause [defendant\u2019s] petition did not indicate in any way that he sought relief under the Act, under the plain meaning of section 122 \u2014 1(d), the trial court was not required to treat his petition as a postconviction petition.\u201d (Emphasis added.) Purnell did not hold the section number of the Act had to be on the petition. The holding in Purnell is broad enough to authorize acceptance of the defendant\u2019s petition in this case.\nIn People v. Holliday, 369 Ill. App. 3d 678, 681 (2007), the court held the legislature\u2019s intent in enacting section 122 \u2014 1(d) seemed clear: \u201cThe legislature wished to undo the line of Illinois cases (including Sturgeon) holding that a trial court was required to recharacterize a defendant\u2019s pleading as a postconviction petition if such recharacterization could fairly be done based upon the contents of the pleading, even though the pleading made no reference to the Act.\u201d Holliday, 369 Ill. App. 3d at 681.\nIn People v. Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d 442 (2001), the supreme court considered whether, under the \u201cgist\u201d standard, a pro se defendant must \u201c \u2018 \u201cplead sufficient facts from which the trial court could find a valid claim of deprivation of a constitutional right.\u201d \u2019 (Emphasis in original.) [Citations.]\u201d The court held the \u201csufficient facts\u201d test imposed too heavy a burden on the pro se defendant. Edwards, 197 Ill. 2d at 245. \u201cWhile in a given case the pro se defendant may be aware of all the facts pertaining to his claim, he will, in all likelihood, be unaware of the precise legal basis for his claim or all the legal elements of that claim.\u201d Edwards, 197 Ill. 2d at 245.\nIn this case, defendant made it clear his petition was intended to be a postconviction petition when he wrote \u201cIll. Post-Conviction Petition\u201d or \u201cPost-Conviction Petition\u201d at the top of every page. Similar to rejection of the \u201csufficient facts\u201d test in Edwards, we find requiring a defendant to specifically cite section 122 \u2014 1 of the Act by number in his petition in order to satisfy section 122 \u2014 l(d)\u2019s pleading requirements would undermine the intent of the legislature to provide a \u201clow threshold\u201d during the first stage of a postconviction proceeding. The State\u2019s interpretation of section 122 \u2014 1(d) would impose \u201ctoo heavy a burden on a pro se defendant.\u201d See Edwards, 197 Ill. 2d at 245. Requiring a pro se defendant to expressly cite section 122 \u2014 1, rather than simply refer to the Act itself, would not advance the legislature\u2019s intent when it adopted section 122 \u2014 1(d)\u2014to eliminate the need to recharacterize a pleading as a postconviction petition even though the pleading made no reference to the Act itself. See Holliday, 369 Ill. App. 3d at 681.\nIn support of our conclusion, we note all postconviction petitions are necessarily filed under section 122 \u2014 1 of the Act. See 725 ILCS 5/122 \u2014 1 (West 2002). There is no other way to do it. A pro se defendant\u2019s notation in the heading that a petition is an Illinois post-conviction petition adequately informs the circuit court that the petition is being filed pursuant to section 122 \u2014 1 of the Act.\nThe language of section 122 \u2014 1(d) of the Act does not persuade us the legislature intended petitioners to specifically cite section 122 \u2014 1 in their petitions. Accordingly, we find the trial court erred in summarily dismissing defendant\u2019s petition under section 122 \u2014 1(d).\nII. Nature of Remand\nOur conclusion that the trial court erred when it dismissed the petition for failure to cite section 122 \u2014 1 by number entitles the defendant to reversal and remand. The question then becomes whether we remand this case for a stage-one or a stage-two proceeding under the Act.\n\u201cThe Act provides a three-stage process for the adjudication of post-conviction petitions.\u201d People v. Boclair, 202 Ill. 2d 89, 99, 789 N.E.2d 734 (2002). In the first stage, the circuit court considers whether the petition is \u201cfrivolous or is patently without merit.\u201d 725 ILCS 5/122 \u2014 2.1(a)(2) (West 2002); Boclair, 202 Ill. 2d at 99. If the petition is not dismissed pursuant to section 122 \u2014 2.1, the petition advances to stage two. The circuit court must then appoint legal counsel to represent an indigent defendant; counsel will have an opportunity to amend the petition. See 725 ILCS 5/122 \u2014 4 et seq. (West 2002); Boclair, 202 Ill. 2d at 100. If the petition is not dismissed at stage two, it proceeds to stage three, where the circuit court conducts an evidentiary hearing. See 725 ILCS 5/122 \u2014 6 (West 2002); People v. Makiel, 358 Ill. App. 3d 102, 104, 830 N.E.2d 731 (2005).\nEven if we take the October 30, 2003, docketing date as our starting point, the circuit court did not dismiss the petition as \u201cfrivolous or patently without merit\u201d within 90 days of docketing, as required by section 122 \u2014 2.1(a). See 725 ILCS 5/122 \u2014 2.1(a) (West 2002). Instead, the circuit court summarily dismissed defendant\u2019s petition based solely on defendant\u2019s failure to refer to section 122 \u2014 1 by number \u2014 a decision we now reverse. No reported decision authorizes us to turn back the clock on the 90-day requirement.\nBecause the circuit court failed to address whether the petition was \u201cfrivolous or patently without merit\u201d within the 90-day period, we find the petition must be remanded for stage-two proceedings. See 725 ILCS 5/122 \u2014 2.1(b) (West 2002) (\u201cIf the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration in accordance with Sections 122 \u2014 4 through 122 \u2014 6\u201d).\nOur disposition of this appeal does not require us to address a serious issue raised by the defendant: whether the clerk\u2019s 16-month delay between filing the petition and docketing it violates the spirit and purpose of the 90-day rule, requiring us to remand the petition for second-stage review. Hopefully, we will not again be faced with so substantial a failure by the clerk to perform her statutory duty to \u201cpromptly\u201d docket the petition.\nCONCLUSION\nWe reverse the circuit court\u2019s summary dismissal of the defendant\u2019s postconviction petition and remand the cause for further consideration as a stage-two proceeding in accord with sections 122 \u2014 4 through 122 \u2014 6 of the Act.\nReversed and remanded.\nHOFFMAN and HALL, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE WOLFSON" } ], "attorneys": [ "Michael J. Pelletier and Robert Hirschhorn, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Alan J. Spellberg, and Joan F. Frazier, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARRY McDONALD, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1-04-0320\nOpinion filed May 29, 2007.\nMichael J. Pelletier and Robert Hirschhorn, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Alan J. Spellberg, and Joan F. Frazier, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0876-01", "first_page_order": 894, "last_page_order": 900 }