People v. Addison, 1-03-0507.

• Decision Date: 06 March 2007
• Docket Number: No. 1-03-0507.,No. 1-03-2541.,1-03-0507.,1-03-2541.
• Citation: 864 N.E.2d 831
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dion ADDISON a/k/a Eric Marshall, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

864 N.E.2d 831

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dion ADDISON a/k/a Eric Marshall, Defendant-Appellant.

No. 1-03-0507.

No. 1-03-2541.

Appellate Court of Illinois, First District, Second Division.

March 6, 2007.

Rehearing Denied April 3, 2007.

Adrienne N. River, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney, Cook County, Chicago (James E. Fitzgerald, Matthew Connors, Jeffrey M. Potter, of counsel), for Appellee.

Justice SOUTH delivered the opinion of the court:

This appeal arises from the summary dismissal of defendant's petition, section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (2002)), for relief from judgment and his pro se postconviction petition.¹ Following a bench trial, defendant was convicted of home invasion and armed robbery and sentenced to a 12-year prison term. Defendant appealed; however, his appellate counsel filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Defendant responded to his appellate counsel's motion, contending he was denied his right to the effective assistance of counsel. This court concluded that none of defendant's allegations of ineffective assistance of counsel rose to the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and found no issues of arguable merit. Defendant's appellate counsel was given leave to withdraw, and his convictions and sentence were affirmed. People v. Addison, No. 1-00-0938, 322 Ill.App.3d 1042, 278 Ill.Dec. 321, 798 N.E.2d 423 (June 7, 2001) (unpublished order under Supreme Court Rule 23).

According to the trial court's written order denying his postconviction petition, on March 11, 2002, defendant filed a petition pursuant to section 2-1401 (735 ILCS 5/2-1401 (West 2002)).² In that petition, he argued his conviction was unconstitutional and void because he was not convicted beyond a reasonable doubt; was denied his right to a fundamentally fair trial; and the State used tainted and perjured evidence, all of which mandated that his conviction be vacated. On May 23, 2002, the trial court entered an oral ruling on defendant's petition, noting that he had unsuccessfully raised those same issues on direct appeal. The trial court further noted that because defendant's petition was beyond the statute of limitations, it was untimely filed.³ The trial court also stated that even if it were to consider defendant's request for relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2002)), his petition would still fail because it merely stated conclusory allegations and was not supported by the record or sworn affidavits. The trial court further opined that defendant's petition merely alleged his dissatisfaction with the trial. The trial court ultimately found that the issues raised by defendant were frivolous and patently without merit and denied the petition.

On February 19, 2003, defendant filed a pro se postconviction petition, which he moved to amend on May 6, 2003. In his original petition, defendant contended his conviction was based on the false and perjured testimony of Detective Navarro, and his trial counsel was ineffective for failing to object to this testimony; that the prosecution failed to prove him guilty and convict him beyond a reasonable doubt; and he received ineffective assistance of appellate counsel because appellate counsel failed to argue on appeal that trial counsel was ineffective, and appellate counsel filed an Anders brief. In his amended petition, defendant contended that the trial court erred when it denied his motion to suppress his confession, and he was denied effective assistance of both trial and appellate counsel. Specifically, he argued that trial counsel failed to object to the perjured testimony of Detective Navarro; made false statements which were inconsistent with his theory of the case during closing arguments; failed to argue that the statement or confession made and signed by defendant had been tampered with by Detective Navarro; failed to argue that the blood found at the scene did not match defendant's blood; and failed to argue the proper defense theory. Defendant further claimed that appellate counsel was ineffective for failing to raise those claims on appeal.

The trial court disagreed, classifying defendant's postconviction petition as a successive petition, and held that defendant had failed to establish the fundamental fairness exception for successive petitions. The trial court also noted that petitioner raised claims which were either addressed in his response to appellate counsel's Anders motion or in his petition seeking relief from judgment. The trial court further stated that it analyzed defendant's petition seeking relief from judgment under both section 2-1401 and section 122-1, both of which resulted in a finding that the issues raised were frivolous and patently without merit; and the claims raised in the postconviction petition were merely conclusory allegations which were rebutted by the record. In concluding that defendant's postconviction petition was frivolous and patently without merit, the trial court summarily dismissed it on June 27, 2003.

On appeal, defendant contends that: (1) the trial court exceeded its authority in summarily dismissing his section 2-1401 petition because that statute does not authorize summary dismissals; alternatively, the trial court erred in finding that the statute of limitations had elapsed and that defendant's section 2-1401 petition was untimely; (2) the trial court erred in recharacterizing his section 2-1401 petition as a postconviction petition and consequently treating the subsequent postconviction petition as successive; alternatively, the trial court erred in recharacterizing the section 2-1401 petition as a postconviction petition without notifying him of the recharacterization; and (3) the post-conviction petition alleged the gist of two constitutional claims of ineffective assistance of counsel, which the trial court failed to consider.

Our initial inquiry is whether the trial court's summary dismissal of defendant's section 2-1401 petition was error. At present, there is a split within the appellate court concerning the issue of whether a section 2-1401 petition may be summarily dismissed, and it is now pending, as of this writing, before the supreme court in People v. Vincent, No. 1-04-1802 (September 27, 2005) (unpublished order under Supreme Court Rule 23), appeal allowed, 217 Ill.2d 623, 300 Ill.Dec. 528, 844 N.E.2d 971 (2006). While the Fourth District has held that a trial court may summarily dismiss a section 2-1401 petition if it is frivolous and without merit (People v. Ryburn, 362 Ill.App.3d 870, 877, 299 Ill.Dec. 281, 841 N.E.2d 1013 (2005)), the Third and Second Districts have held that a trial court commits reversible error in summarily dismissing a section 2-1401 petition without giving the petitioner notice and an opportunity to respond and, furthermore, that the harmless error analysis is not applicable (People v. Coleman, 358 Ill. App.3d 1063, 1066-71, 296 Ill.Dec. 353, 835 N.E.2d 387 (2005)). There is also a split of authority within this district; i.e., the first, third and fourth divisions, which have held that summary dismissal of a section 2-1401 petition is proper where the petition raises a pure question of law and the defendant incurs no prejudice from the dismissal based upon the patently frivolous claims contained within the petition (People v. Thompson, 368 Ill.App.3d 348, 306 Ill.Dec. 525, 857 N.E.2d 924 (2006); People v. Allen, 366 Ill.App.3d 903, 304 Ill.Dec. 763, 853 N.E.2d 840 (2006); People v. Dyches, 355 Ill.App.3d 225, 291 Ill.Dec. 780, 824 N.E.2d 636 (2005); People v. Anderson, 352 Ill.App.3d 934, 288 Ill.Dec. 350, 817 N.E.2d 1000 (2004); People v. Taylor, 349 Ill.App.3d 718, 285 Ill.Dec. 761, 812 N.E.2d 581 (2004)). This division has held that a trial court has the inherent authority to sua sponte dismiss a patently frivolous mandamus complaint under the Code (735 ILCS 5/1-100 et seq. (West 2002)). Owens v. Snyder, 349 Ill.App.3d 35, 285 Ill.Dec. 251, 811 N.E.2d 738 (2004).

Applying our previous holding to the present case, we find that a trial court has the authority to sua sponte dismiss a patently frivolous section 2-1401 petition under the Code. In Owens, we found that petitioner was not prejudiced by the trial court's failure to strictly follow the Code. Owens, 349 Ill.App.3d at 44, 285 Ill.Dec. 251, 811 N.E.2d 738. We also noted that petitioner did not raise any legal argument or cite any authority to support the substantive merit of his complaint, and more importantly, that his claims were without merit. Owens, 349 Ill.App.3d at 44-45, 285 Ill.Dec. 251, 811 N.E.2d 738. Furthermore, this court found that even if the trial court had followed the Code, the petition would have been dismissed. Owens, 349 Ill.App.3d at 45, 285 Ill.Dec. 251, 811 N.E.2d 738.

Similarly, in the case at bar, we find the trial court's dismissal of defendant's section 2-1401 petition was proper. "Section 2-1401 of the Code provides a comprehensive statutory procedure by which final orders, judgments, and decrees may be challenged more than 30 days after their entry." Taylor, 349 Ill.App.3d at 719, 285 Ill.Dec. 761, 812 N.E.2d 581. "While section 2-1401 usually provides a civil remedy, its remedial powers also extend to criminal cases." Taylor, 349 Ill. App.3d at 719, 285 Ill.Dec. 761, 812 N.E.2d 581. A section 2-1401 petition is the procedure in a criminal case by which to correct all errors of fact occurring in the prosecution of a cause, unknown to the petitioner and court at the time judgment was entered, which, if then known, would have prevented its rendition. People v. Haynes, 192 Ill.2d 437, 461, 249 Ill.Dec. 779, 737 N.E.2d 169 (2000)....