People v. Carroll

• Decision Date: 16 November 2000
• Docket Number: No. 4-99-0576.,4-99-0576.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Scott A. CARROLL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

739 N.E.2d 1016

317 Ill.App.3d 408

251 Ill.Dec. 83

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Scott A. CARROLL, Defendant-Appellant.

No. 4-99-0576.

Appellate Court of Illinois, Fourth District.

November 16, 2000.

Daniel D. Yuhas, Deputy Defender (Court-appointed), Gary R. Peterson, Assistant Defender, Office of State Appellate Defender, Springfield, for Scott A. Carroll.

Charles Colburn, State's Attorney, Jacksonville, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, Denise M. Ambrose, Staff Attorney, State's Attorneys Appellate Prosecutor, Springfield, for the People.

Presiding Justice COOK delivered the opinion of the court:

Defendant Scott A. Carroll appeals the dismissal of his postconviction petition, filed pursuant to section 122-1(a) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(a) (West 1998)).

On January 7, 1994, a jury convicted Carroll of first degree murder (720 ILCS 5/9-1(a)(1) (West 1992)), stemming from the August 28, 1993, shooting death of William Doug Scoggins. Carroll was sentenced to 60 years' imprisonment on February 28, 1994. On July 22, 1996, this court affirmed his conviction on direct appeal. People v. Carroll, 278 Ill.App.3d 464, 215 Ill.Dec. 447, 663 N.E.2d 458 (1996). On October 1, 1997, the Supreme Court of Illinois denied Carroll's petition for leave to appeal. People v. Carroll, 174 Ill.2d 573, 227 Ill.Dec. 10, 686 N.E.2d 1166 (1997).

On April 22, 1999, Carroll filed a petition for postconviction relief. He also filed a motion for appointment of counsel. The next day, the court dismissed the petition as untimely, correctly noting that Carroll had failed to allege facts showing that the delay was not due to his culpable negligence.

On May 12, 1999, Carroll filed a motion for reconsideration. Carroll alleged therein that he had been unable to file his petition on time because of time spent in segregation and the ensuing loss of his paperwork.

On July 6, 1999, the court conducted a hearing on the motion. The prosecutor was present and Carroll appeared pro se. After questioning Carroll and entertaining arguments by the prosecutor, the court denied the motion.

We first note Carroll's argument that the trial court may not dismiss post-conviction petitions on the grounds of untimeliness during its initial review. See People v. McCain, 312 Ill.App.3d 529, 531, 245 Ill.Dec. 130, 727 N.E.2d 383, 385 (2000). We have rejected that position, finding instead that the trial court inherently has such power. See People v. Harden, 316 Ill.App.3d 695, 697-698, 249 Ill. Dec. 916, 737 N.E.2d 306, 308.

However, it is improper for a trial court to entertain argument or otherwise receive input from the State during the first phase of proceedings on a post-conviction petition. We have long recognized that in initially examining a petition the court must proceed inops consilii, that is, without input by either the State or the petitioner. On the other hand, neither can there be appointment of counsel or leave to proceed in forma pauperis until it is determined that the petition will not be dismissed at this juncture. People v. Novak, 200 Ill.App.3d 189, 190, 146 Ill.Dec. 681, 558 N.E.2d 644, 645 (1990).

The trial court's decision to hold a hearing may have been predicated upon Carroll's styling of his pleading as a "motion to reconsider." But Carroll's "motion to reconsider" should have been taken as a motion to amend his petition. As the trial court queried: "[J]ust how permissive can the [c]ourt be if, how liberal can the [c]ourt be in allowing [Carroll] to amend and go back and show that it was not his negligence that he filed late, and should the [c]ourt then also appoint counsel. That's the question I have." Furthermore, review of the record also demonstrates that the ensuing arguments by the State regarded other matters wholly within the province of the court at this stage of review, e.g., the actual sufficiency of Carroll's pleading. The...