People v. McCain
| Decision Date | 22 March 2000 |
| Docket Number | No. 5-97-0988.,5-97-0988. |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joe McCAIN, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
John Belz, Huntley & Giganti, Springfield, Daniel M. Kirwan, Deputy Defender, Office of the State Appellate Defender, Mt. Vernon, for Appellant.
Robert Haida, State's Attorney, St. Clair County, Belleville, Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Gerry R. Arnold, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, for Appellee.
Defendant, Joe McCain, was convicted of two counts of attempted murder and three counts of aggravated assault by a St. Clair County jury in February of 1989. After sentencing, McCain appealed. We affirmed his convictions and sentences. People v. McCain, 207 Ill.App.3d 1123, 178 Ill.Dec. 332, 604 N.E.2d 588 (1991) (unpublished order under Supreme Court Rule 23 (166 Ill.2d R. 23)). Defendant's petition for leave to appeal to the Illinois Supreme Court was denied.
On August 11, 1997, defendant filed a petition in St. Clair County seeking relief under the Post-Conviction Hearing Act (Act), 725 ILCS 5/122-1 et. seq. (West 1996). The circuit court dismissed defendant's petition on October 21, 1997, finding that defendant's petition was not timely filed, that the defendant was culpably negligent in not filing it on time, and that nothing in the petition alleged any constitutional violation that was not addressed on direct appeal or otherwise waived.
According to the procedures prescribed in the Post-Conviction Hearing Act, within the first 90 days after a postconviction petition is filed, the trial court is required to review the petition to determine whether it is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 1996). If the court finds the petition to be frivolous and without merit, the court "shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching the decision." 725 ILCS 5/122-2.1(a)(2) (West 1996).
In the summary dismissal stage, the trial court is required to make an independent assessment as to whether the allegations in the petition, when liberally construed and taken as true, set forth a constitutional claim for relief. The court is foreclosed from engaging in any fact-finding, or any review of matters beyond the allegations of the petition. People v. Coleman, 183 Ill.2d 366, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998). During that stage, the State has no opportunity to raise any arguments against the petition. People v. Gaultney, 174 Ill.2d 410, 418, 221 Ill.Dec. 195, 675 N.E.2d 102, 106 (1996). Summary dismissal is a process that exists to dispose of petitions that are frivolous in nature and patently without merit. To survive dismissal at this stage, the petition must only present "the gist of a constitutional claim." Gaultney, 174 Ill.2d at 418, 221 Ill.Dec. 195, 675 N.E.2d at 106.
In the dismissal order, the trial court did not find that the defendant's petition was frivolous and patently without merit. Rather, the trial court found that the petition was untimely and determined that the constitutional issues raised in the petition were either addressed on direct appeal or otherwise waived.
In our view, the trial court exceeded this very limited determination and assumed the adversarial role of the prosecutor. Here, the court raised issues of timeliness and res judicata, and then went on to make findings of fact and decide those issues. Likewise, the determination of whether a petitioner is or is not culpably negligent in filing a petition late requires the trial court to make factual findings and assess the petitioner's credibility. A court cannot act as an advocate and a judge. At this stage of the proceedings, the court should only determine whether the petition alleges constitutional deprivations, not whether the petitioner will ultimately succeed on those claims. In this case, the review was not limited to whether the...
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