                           NO. 4-06-0288       Filed 9/5/07

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,  )    Appeal from
          Plaintiff-Appellee,         )    Circuit Court of
          v.                          )    Mason County
JAMIE L. SHIPP,                       )    No. 95CF44
          Defendant-Appellant.        )
                                      )    Honorable
                                      )    Thomas L. Brownfield,
                                      )    Judge Presiding.
_________________________________________________________________

           PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

           In December 1995, defendant, Jamie L. Shipp, pleaded

guilty to first degree murder and three counts of aggravated

arson (720 ILCS 5/9-1(a)(1), 20-1.1 (West 1994)).   The trial

court later sentenced him to 50 years in prison on the first

degree murder conviction and 25 years in prison on each of the

aggravated arson convictions, with those sentences to be served

concurrently.

           In December 2005, defendant pro se filed a petition

under the Post-Conviction Hearing Act (725 ILCS 5/122-1 through

122-8 (West 2004)).   In March 2006, the trial court dismissed the

petition, upon finding that it was frivolous and patently without

merit.   Defendant appeals, and we affirm.

                           I. BACKGROUND

           In exchange for defendant's guilty plea, the State
dismissed the other counts of first degree murder that were based

upon the deaths of the two other victims who died in the trailer

fire defendant pleaded guilty to setting.   Although in March 1996

defendant filed pro se a motion to withdraw his guilty plea and

vacate sentence, he later withdrew that motion and never filed an

appeal.

          In May 1997, defendant pro se filed a "petition for

relief from judgment" that he described as "pursuant to the

Illinois Post-Conviction Act of the Illinois Revised Statutes."

In that petition, defendant alleged that he had been denied his

right to effective assistance of counsel because his attorney had

failed to investigate the terms of the plea agreement before

advising him to plead guilty.

          In July 1997, defendant pro se filed a second "petition

for relief from judgment" that he again characterized as "pursu-

ant to the Illinois Post-Conviction Act of the Illinois Revised

Statutes."   This petition also alleged that his trial counsel was

ineffective for failing to investigate the terms of the plea

agreement before advising defendant to plead guilty.   Later in

July 1997, the trial court dismissed defendant's petitions, upon

finding that they were frivolous and patently without merit.

Defendant did not appeal.

          In December 2005, defendant pro se filed a petition for

relief "pursuant to the Illinois Post-Conviction Act, 725 ILCS


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5/122-1, et seq."   In March 2006, the trial court dismissed

defendant's petition, upon finding that it was frivolous and

patently without merit.   In so finding, the court noted that

defendant had previously filed postconviction petitions under the

Act, which the court had previously dismissed.

          This appeal followed.

         II. DEFENDANT'S FAILURE TO COMPLY WITH SECTION
                       122-1(f) OF THE ACT

          Defendant argues that the trial court erred by dismiss-

ing his December 2005 postconviction petition at the first stage

of the postconviction proceedings because (1) the petition

presented a gist of a meritorious claim of actual innocence; (2)

the court applied the wrong standard to judging at this stage

whether defendant's petition made a substantial showing of a

violation of constitutional rights; (3) the petition should not

be considered as a successive postconviction petition because the

two previous petitions were labeled motions for relief from

judgment; and (4) waiver and res judicata should not apply or,

alternatively, those principles should yield to a doctrine of

fundamental fairness.   We need not consider any of defendant's

arguments because his petition fails to comply with section 122-

1(f) of the Act.

          In People v. DeBerry, 372 Ill. App. 3d 1056, 1059, 868

N.E.2d 382, 383-84 (2007), this court recently addressed section

122-1(f) of the Act, which the legislature added to the Act on

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January 1, 2004.    The first sentence of subsection (f) reads as

follows:   "Only one petition may be filed by a petitioner under

this [a]rticle without leave of the court."    725 ILCS 5/122-1(f)

(West 2004).   We explained the import of this language in

DeBerry, as follows:

           "[S]ection 122-1(f) unequivocally requires

           that a defendant must obtain leave of court

           before filing a successive petition, and if a

           defendant fails to do so, the court, whether

           sua sponte or on the State's motion, should

           dismiss any such petition.   In taking this

           action, the court need not--and should not--

           concern itself with the merits of any claims,

           contentions, or arguments that the petition

           contains.   Section 122-1(f) constitutes a

           procedural hurdle to any such consideration

           that the legislature has intentionally chosen

           to impose regarding such petitions. [Cita-

           tion.]

                Just as trial courts should not consider

           anything contained within a postconviction

           petition that violates section 122-1(f) of

           the Act, courts of review should be so lim-

           ited as well.   Accordingly, when, as here, we


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          are reviewing the dismissal of defendant's

          postconviction petition and we conclude that

          section 122-1(f) has been violated, we have

          nothing further to discuss or review.   That

          conclusion trumps anything that defendant's

          petition may contain."   (Emphasis in origi-

          nal.)   DeBerry, 372 Ill. App. 3d at 1060, 868

          N.E.2d at 384-85.

          Defendant tries to avoid the application of DeBerry by

asserting that (1) his prior petitions were not postconviction

petitions under the Act but instead were petitions for relief of

judgment, pursuant to section 2-1401 of the Code of Civil Proce-

dure (735 ILCS 5/2-1401 (West 1996)) and (2) the trial court

recharacterized both of his previous section 2-1401 petitions as

postconviction petitions without either warning him that such

recharacterizations would subject his petitions to the restric-

tions on successive postconviction petitions or providing him

with the opportunity to withdraw the pleadings or amend them to

include all possible postconviction claims.   In support of these

contentions, defendant cites People v. Shellstrom, 216 Ill. 2d

45, 833 N.E.2d 863 (2005), and People v. Pearson, 216 Ill. 2d 58,

833 N.E.2d 827 (2005).   We reject defendant's efforts to distin-

guish DeBerry.

          First, the trial court did not recharacterize defen-


                               - 5 -
dant's 1996 petitions as postconviction petitions; defendant

himself labeled them as such.    Indeed, defendant made no mention

in either petition of section 2-1401 or any other basis for

relief other than the Post-Conviction Hearing Act to which those

petitions referred.    Defendant apparently bases his entire

argument in this regard upon the title he gave to the petitions--

namely, petition for relief from judgment--but this claim falls

short.

            Second, even if the trial court had recharacterized

defendant's earlier petitions from being brought under section 2-

1401 of the Code of Civil Procedure to being postconviction

petitions, none of that would matter.    In People v. Adams, 373

Ill. App. 3d 991, 994, 869 N.E.2d 856, 859 (2007), the First

District Appellate Court held that the supreme court's mandate in

Shellstrom does not apply retroactively.    We agree with the First

District.    The supreme court's decision in Shellstrom, by its

explicit language, applies only prospectively.      In particular,

the Shellstrom court wrote, "we hold that, in the future, when a

circuit court is recharacterizing as a first postconviction

petition a pleading that a pro se litigant has labeled as a

different action cognizable under Illinois law, the circuit court

must" take certain action to alert the defendant about the

proposed recharacterization.    (Emphasis added.)     Shellstrom, 216

Ill. 2d at 57, 833 N.E.2d at 870.


                                - 6 -
           As in DeBerry, we have intentionally chosen not to

discuss the substance of the claims set forth in defendant's

December 2005 postconviction petition because the claims them-

selves are not properly before us.     We reiterate what we said in

DeBerry that "when, as here, we are reviewing the dismissal of a

defendant's postconviction petition and we conclude that section

122-1(f) has been violated, we have nothing further to discuss or

review."   DeBerry, 372 Ill. App. 3d at 1060, 868 N.E.2d at 385.

           Our dissenting colleague states that we should not

allow the State to raise for the first time in this court the

issue that defendant failed to obtain leave from the trial court

to file a successive postconviction petition.    He also criticizes

the State for not raising the issue in the trial court and

asserts that it gained an advantage by not doing so.    Our dis-

senting colleague's criticism of the State is unwarranted.    As

our opinion points out, the trial court dismissed defendant's

postconviction petition upon finding that it was frivolous and

patently without merit.   The trial court's determination was at

the first stage of the postconviction petition process and

occurred in accordance with section 122-2.1 of the Act (725 ILCS

5/122-2.1 (West 2004)).   During such first-stage scrutiny, a

trial court should review a petition without any State input.

See People v. Jones, 211 Ill. 2d 140, 144, 809 N.E.2d 1233, 1236

(2004) (the trial court's review at the first stage "is independ-


                               - 7 -
ent, as the Act does not permit any further pleadings from the

defendant, or any motions, responsive pleadings, or other input

from the State"); People v. Gaultney, 174 Ill. 2d 410, 419, 675

N.E.2d 102, 107 (1996) ("reversal is required where the record

shows that the circuit court sought or relied on input from the

State when determining [at the first stage] whether the petition

is frivolous").    In People v. Williams, 364 Ill. App. 3d 1017,

1022, 848 N.E.2d 254, 258 (2006), this court recently wrote that

at the first stage, "the Act does not permit any further plead-

ings from the defendant or any motions or responsive pleadings

from the State."    Accordingly, our dissenting colleague criti-

cizes the State for not taking action the law specifically

prohibits it from taking.



                            III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.

            Affirmed.

            KNECHT, J., concurs.

            COOK, J., dissents.




                                   - 8 -
          JUSTICE COOK, dissenting:

          I would address the ruling of the trial court.    We

should not allow the State to raise for the first time in this

court the issue that defendant failed to obtain leave from the

trial court to file a successive postconviction petition.     The

State gains an advantage by raising these issues for the first

time in the reviewing court.   "If the State had raised the issue

in the trial court, the trial court may have granted leave to

file the petition or allowed it to be amended."   DeBerry, 372

Ill. App. 3d at 1061, 868 N.E.2d at 385 (Cook, J., dissenting).

Even if the trial court denied leave to amend, raising the issue

in the trial court would have saved the trial court time and

effort, the purpose of section 122-1(f).   If the State was

dissatisfied with the trial court's ruling, it could have filed

an objection after the ruling was received.




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