                           2015 IL App (1st) 141094
                                 No. 1-14-1094
                          Opinion filed August 14, 2015

                                                                    FIFTH DIVISION

                                      IN THE

                     APPELLATE COURT OF ILLINOIS

                                FIRST DISTRICT


THE PEOPLE OF THE STATE OF                )       Appeal from the Circuit Court
ILLINOIS,                                 )       of Cook County.
                                          )
    Plaintiff-Appellee,                   )
                                          )
    v.                                    )       No. 3 CR 1284
                                          )
GREGORY MINNIEFIELD,                      )       The Honorable
                                          )       Thomas J. Byrne,
    Defendant-Appellant.                  )       Judge, presiding.




          JUSTICE GORDON delivered the judgment of the court, with opinion.
          Presding Justice Palmer and Justice Reyes concurred in the judgment and opinion.




                                  OPINION
     No. 1-14-1094

¶1           Defendant Gregory Minniefield appeals the trial court's December 6,

       2013, order striking defendant's pro se document which was entitled "Motion to

       Vacate Conviction/Sentence as Void."

¶2           Defendant was found guilty after a jury trial of first-degree murder and

       sentenced to a total of 50 years with the Illinois Department of Corrections. The

       sentence included a 25-year enhancement for personally discharging a firearm

       which proximately caused death. This court affirmed defendant's conviction and

       sentence on direct appeal on April 11, 2007. People v. Minniefield, No. 1-05-

       2792 (2007) (unpublished order under Supreme Court Rule 23). Defendant

       then filed a pro se postconviction petition which the trial court summarily

       dismissed. On May 28, 2010, this court reversed the trial court's summary

       dismissal and remanded for second-stage postconviction proceedings. People v.

       Minniefield, No. 1-08-0649 (2010) (unpublished order under Supreme Court

       Rule 23). After the remand, the trial court granted the State's motion to dismiss

       on January 15, 2013. On December 13, 2013, this court affirmed the trial

       court's second-stage dismissal.    People v. Minniefield, 2014 IL App (1st)

       130535.

¶3           While defendant's appeal of the second-stage dismissal of his

       postconviction petition was pending, defendant filed on November 27, 2013, a

       document entitled a "Motion to Vacate Conviction/Sentence as Void." The

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       document claimed that he was wrongly sentenced under a firearm enhancement

       provision because the jury was incorrectly instructed under a modified

       instruction.

¶4           On this appeal, defendant characterizes this document as a section 2-1401

       petition (735 ILCS 5/2-1401(a) (West 2012)), but concedes that he "chose the

       incorrect vehicle to present his claims" and that "a circuit court is not required

       to construe a collateral petition arguing constitutional violations as a post-

       conviction petition if the pleading does not explicitly invoke the [Post-

       Conviction Hearing] Act, as is the case here." In addition, defendant also

       observes that this court recently rejected his underlying substantive argument.

       People v. Sharp, 2015 IL App (1st) 130438, ¶¶ 79-80.

¶5           For the following reasons, we do not find defendant's arguments

       persuasive.

¶6                                  BACKGROUND

¶7                               I. The Evidence at Trial

¶8                                    A. The Events

¶9           On direct appeal, we summarized the evidence at defendant's trial as

       follows:

                  "The trial evidence demonstrated that, on December 17, 2002,

             defendant fatally shot the victim, Theopolis Ransberry. Immediately

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               prior, defendant was driving a car with two passengers, his girlfriend and

               cousin.   The victim was simultaneously driving his car with three

               passengers. Although defendant admitted that he shot the victim, the trial

               testimony conflicted regarding the exact chain of events leading to the

               victim's death. The State's witnesses, including the victim's passengers

               and defendant's cousin, testified that defendant instigated the exchange

               with the victim by shooting at the victim's car. Then, after the victim

               subsequently pulled his car over, defendant approached on foot and shot

               the victim several more times absent provocation. Contrarily defendant

               testified that he did not shoot the victim until, after approaching the

               victim's car to merely talk, he thought the victim was reaching for a gun,

               and thus responsively shot the victim's hand twice. Then because the

               victim began to drive away while defendant's hand remained partially

               inside the car, defendant's hand hit the window causing the handgun to

               fire several more times." Minniefield, No. 1-05-2792, slip op. at 2 (April

               11, 2007).

¶ 10                         B. Defendant's Pretrial Confession

¶ 11           On direct appeal, we described defendant's pretrial confession as follows:

                  "At trial, Assistant State's Attorney (ASA) John Brady testified that

               defendant agreed to have his statement videotaped, and it was published

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       No. 1-14-1094

               to the jury over defense counsel's objections. In the statement, defendant

               admitted that he chased the victim's car on the day in question because

               they were engaged in an ongoing feud over money. Defendant further

               admitted that, while chasing the victim's car, he fired two gunshots into

               the air. Defendant additionally admitted that he approached the victim's

               car, grabbed the chain around his neck and demanded money that the

               victim owed him. The victim moved and defendant fired his handgun

               toward the victim's leg.     Then, while defendant's handgun remained

               inside the car, the car moved approximately two feet causing defendant to

               shoot the victim four additional times. Defendant admitted that no one

               was armed in the victim's car. Defendant knew that bullets hit both the

               victim and Roshawn Adams, one of the passengers; however, he fled the

               scene and disposed of his handgun. Defendant stated that he merely

               intended to scare the victim, not to hurt him." Minniefield, No. 1-05-

               2792, slip op. at 2 (April 11, 2007).

¶ 12                          C. Defendant's Testimony at Trial

¶ 13           We described defendant's trial testimony as follows:

                  "Defendant testified that, in April 2002, he and the victim had a

               conversation during which the victim denied involvement in an incident

               with defendant's girlfriend.     He further testified that, early in the

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No. 1-14-1094

        afternoon on the day in question, defendant was driving with his two-year

        old son when the victim opened fire at defendant's car. Defendant found

        a police officer in the area and reported the incident; however, the officer

        was forced to leave on an emergency call. At some point during the day,

        defendant purchased a loaded handgun for protection.

           Later in the evening, defendant was driving with his girlfriend, Nicole

        Saunders, and his cousin, Erica Simmons, when he recognized the

        victim's car pass him and stop. Defendant approached the victim's car on

        foot, armed with his handgun, to talk to him about a misunderstanding

        involving Sanders. Defendant, however, saw the victim reach for what

        he thought was a handgun, and as a result, shot inside the car in an

        attempt to shoot whatever the victim was trying to retrieve. After firing

        two shots, the victim began to drive away. Defendant's hand, however,

        was still inside the car. As a result, the window frame hit defendant's

        hand causing the gun to fire several more times. Defendant testified that

        he did not intend to fire the handgun and he did not think that he shot

        anyone.

           Defendant further maintained that he was mistreated while in police

        custody, and despite expressly invoking his rights to an attorney and to




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       No. 1-14-1094

                 remain silent, his Miranda rights were violated. 1 Miranda v. Arizona,

                 384 U.S. 436 (1966). Defendant claimed that he told Detective Ron

                 Lewis and Timothy Nolan that the victim threatened him and that he shot

                 the victim because he thought the victim was reaching for a weapon.

                 Defendant, however, admitted that he did not make the same claims in

                 his videotaped statement.

                    On cross-examination, defendant stated that he thought the victim

                 initially shot at his car because the victim mistakenly thought that

                 defendant was involved in a prior attack on the victim, which was

                 actually instigated by defendant's girlfriend. He admitted, however, that

                 during the incident the victim did not make any threats." Minniefield, No.

                 1-05-2792, slip op. at 2-4 (April 11, 2007).

¶ 14                            D. The State's Rebuttal Evidence

¶ 15             We described the State's rebuttal case as follows:

                    "In rebuttal, Detective Lewis testified that defendant did not report

                 that the victim shot at him while he was driving his son or that he thought

                 the victim was reaching for a handgun. On cross-examination, however,

                 Lewis admitted that defendant told him that the victim had threatened


             1
              Prior to trial, the trial court denied defendant's motion to suppress the
       statements he made while in police custody.
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       No. 1-14-1094

               defendant. Also, in rebuttal, Detective Nolan reiterated that defendant

               did not report that the victim shot at him.         On cross-examination,

               however, Nolan admitted that defendant [stated] that he only shot inside

               the victim's car because the victim was reaching for something."

               Minniefield, No. 1-05-2792, slip op. at 4 (April 11, 2007).

¶ 16                                  E. Jury Instructions

¶ 17           At the jury instruction conference, defense counsel requested instructions

         on both second-degree murder and self-defense, which the trial court gave over

         the State's objection.

¶ 18           The jurors were instructed that, in order to sustain the charge of first-

         degree murder, the State had the burden of proving that "the defendant was not

         justified in using the force he used."

¶ 19           As to when force is justified, the jurors were instructed:

                   "A person is justified in the use of force when and to the extent that he

               reasonably believes that such conduct is necessary to defend himself

               against the imminent use of unlawful force.

                   However, a person is justified in the use of force which is intended or

               likely to cause death or great bodily harm only if he reasonably believes

               that such force is necessary to prevent imminent death or great bodily

               harm to himself."

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       No. 1-14-1094

¶ 20           With respect to second-degree murder, the jury was instructed:

                   "You may not consider whether the defendant is guilty of the lesser

               offense of second degree murder until and unless you have first

               determined that the State has proved beyond a reasonable doubt each of

               the previously stated propositions.

                   The defendant has the burden of proving by a preponderance of the

               evidence that a mitigating factor is present so that he is guilty of the

               lesser offense of second degree murder instead of first degree murder.

               By this I mean that you must be persuaded, considering all the evidence

               in this case, that it is more probably true than not true that the following

               mitigating factor is present: that the defendant, at the time he performed

               the acts which caused the death of Theopulous Ransberry, believed the

               circumstances to be such that they justified the deadly force he used, but,

               his belief that such circumstances existed was unreasonable."

         Thus, the jurors were also instructed to consider, if they first found that the

         State had proved that "the defendant was not justified in using the force he

         used" and he was guilty of first-degree murder, whether he had an unreasonable

         belief in the need for the use of deadly force.

¶ 21           After receiving their instructions, the jury convicted defendant of first-

         degree murder, and defendant was sentenced to 50 years of imprisonment, and

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       No. 1-14-1094

         his conviction was affirmed on direct appeal on April 11, 2007. Minniefield,

         No. 1-05-2792.

¶ 22                           II. Postconviction Proceedings

¶ 23           Defendant filed a pro se postconviction petition on December 27, 2007,

         alleging ineffective assistance of counsel, which the trial court summarily

         dismissed as frivolous on February 6, 2008.

¶ 24                        A. Reversal of First-Stage Dismissal

¶ 25           On appeal, this court reversed the summary first-stage dismissal on May

         28, 2010 (Minniefield, No. 1-08-0649, slip op. at 7 (May 18, 2010)), stating:

               "We find defendant's claim should have survived first-stage review

               because his allegation that counsel failed to investigate or present

               witnesses has an arguable basis in law and fact. [Citation.] As a

               threshhold matter, we note that defendant appended his own affidavit as

               well as one from Ratliff. A claim that trial counsel failed to investigate

               and call a witness must be supported by an affidavit from the proposed

               witness. [Citation.]    Therefore, we do not consider the proposed

               testimony from Knighton in our determination. [Citation.]

                  We find that defendant's allegation has an arguable basis in fact. At

               trial, defendant's testimony presented an 'imperfect self-defense' theory:

               that he fired his gun at the victim after believing he saw the victim reach

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No. 1-14-1094

        for a gun. However, the State's testimony established that police did not

        recover a gun from the victim's automobile. In his petition, defendant

        alleged that Ratliff would testify that an unknown man removed a silver

        gun from the automobile before police arrived on the scene. Defendant

        appended an affidavit in which Ratliff averred as such, and also that

        counsel never investigated his statement. In his own affidavit, defendant

        averred that he told counsel about Ratliff and Knighton. Taken as true at

        this stage [citation], Ratliff's affidavit lends support to defendant's theory

        of defense and defendant's affidavit establishes that counsel knew of the

        witnesses. Therefore we cannot find the facts in defendant's allegations

        'fantastic or delusional.' [Citation.]"

           We also cannot find defendant's allegation presented an indisputably

        meritless legal theory. A constitutional claim that a defendant did not

        receive effective assistance of counsel must demonstrate that it is

        arguable that counsel's performance fell below an objective standard of

        reasonableness and the defendant was arguably prejudiced as a result.

        [Citation.] Defendant testified at trial that he believed the victim was

        reaching for a gun and that based on this belief, fired one or two shots

        toward the victim. Testimony presented by the State established that the

        police did not recover a gun from the victim's automobile.               The

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       No. 1-14-1094

                allegations related to Ratliff's testimony corroborate defendant's belief

                that the victim was reaching for a gun. We find this failure to investigate

                could arguably demonstrate that counsel's performance was objectively

                unreasonable. [Citation.] Finally, the affidavits support the allegation

                that counsel failed to investigate Ratliff's testimony.       Although the

                evidence against defendant was strong, it is at least 'arguable' that

                evidence of a gun in the victim's car could have changed the outcome."

                Minniefield, No. 1-08-0649, slip op. at 5-7 (May 18, 2010).

¶ 26            The appellate court did not reach defendant's second allegation

         concerning ineffectiveness based on a failure to ask for further jury instructions,

         since it was already reversing on the first issue. Minniefield, No. 1-08-0649,

         slip op. at 7 (May 18, 2010).

¶ 27                          B. Trial Court's Order on Remand

¶ 28            On remand, counsel was appointed and filed a supplemental petition,

         supplementing the claims and allegations that defendant already made in his pro

         se petition.

¶ 29            In his pro se petition, filed in December 2007, defendant alleged that

         "prior to trial, I informed my trial attorney that Michelle Knighton and Thomas

         Ratliff were present[] after the shooting and saw an unknown male take a silver

         gun off the front passenger floor and [leave] with it before the police came" and

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       No. 1-14-1094

         that defense counsel was ineffective for failing to call these two witnesses to

         testify. Defendant also alleged that "defense counsel was ineffective for not

         requesting an involuntary manslaughter instruction where there was sufficient

         evidence to support it."

¶ 30               Counsel's supplemental petition argued (1) that trial counsel was

         ineffective for not calling Ratliff who indicated prior to trial that the victim was

         armed; and (2) that the newly available testimony of Noah Redic and Antoine

         Nash that the victim was armed with a gun would have changed the outcome at

         trial, resulting in an acquittal or reducing the conviction to second-degree

         murder.    The supplemental petition stated that Ratliff was not a newly

         discovered witness and that his affidavit was submitted to support defendant's

         ineffective assistance claim.

¶ 31           Both Redic and Nash swore in their affidavits that defendant "stepped

         back" from the victim's vehicle immediately before firing the first shot. We

         previously observed that these statements contradicted defendant's trial

         testimony that he reached his hand inside the victim's vehicle to fire the first

         couple of shots at whatever the victim was reaching for on the floor.

         Minniefield, 2014 IL App (1st) 130535, ¶ 43.

¶ 32           The State moved to dismiss defendant's pro se petition as supplemented

         by counsel, and the petition proceeded to a second-stage hearing. The State

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No. 1-14-1094

   conceded that Redic's and Nash's affidavits, which were submitted in support of

   defendant's actual innocence claim, were newly discovered but argued that they

   were not material. Minniefield, 2014 IL App (1st) 130535, ¶¶ 46-47. The State

   argued that Redic and Nash's testimony would not have changed the result at

   trial because, at most, their affidavits showed mutual combat 2 not self-defense

   by defendant. Defendant testified that he was armed when he approached the

   victim's vehicle. Redic and Nash both swore in their affidavits that the victim

   said "Oh, sh**" when he observed defendants approach and then reached for a

   gun. At most, this chain of events showed aggression by defendant, a self-

   defense response by the victim, and then shooting by defendant toward the

   seated victim. The State argued that this chain of events could not possibly

   serve as the basis for a self-defense claim by defendant.




      2
        "Mutual combat" has been defined by our supreme court as a "fight or
struggle which both parties enter willingly or where two persons, upon a sudden
quarrel and in hot blood, mutually fight upon equal terms and where death results
from the combat." People v. Austin, 133 Ill. 2d 118, 125 (1989). See also People
v. Leach, 2012 IL 111534, ¶ 152 (the offense of first-degree murder may be
"mitigated" to second-degree murder if the defendant "killed while under the
influence of a sudden, intense passion engendered by mutual combat"); 720 ILCS
ILCS 5/9-2(a) (West 2012) (a "mitigating factor" for second-degree murder occurs
if defendant is "acting under a sudden and intense passion resulting from serious
provocation by the individual killed *** but he or she negligently or accidentally
causes the death of the individual killed").
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       No. 1-14-1094

¶ 33           On January 15, 2013, the trial court again dismissed the petition, ruling

         (1) that trial counsel was not ineffective for allegedly failing to investigate; and

         (2) that defendant had failed to make a substantial showing of actual innocence.

¶ 34           On appeal of the second-stage dismissal, defendant argued: (1) that he

         made a substantial showing that he acted in self-defense and thus is actually

         innocent; and (2) that his counsel was ineffective (a) for failing to ask for an

         involuntary manslaughter jury instruction and (b) for failing to investigate or

         call occurrence witnesses. We did not find these claims persuasive, and on

         December 31, 2014, we affirmed the trial court's second-stage dismissal of

         defendant's postconviction petition. Minniefield, 2014 IL App (1st) 130535,

         ¶¶ 51, 100. Defendant's petition for rehearing was denied on February 5, 2015.

¶ 35                III. "Motion to Vacate Conviction/Sentence as Void"

¶ 36           While defendant's appeal of the second-stage dismissal of his

         postconviction petition was pending, defendant filed on November 27, 2013, a

         document entitled "Motion to Vacate Conviction/Sentence as Void."              This

         document is the subject of the current appeal.

¶ 37           In this document, defendant claimed that his appellate counsel was

         ineffective for failing to challenge the trial court's imposition of a 25-year-to-

         life sentencing enhancement pursuant to section 5-8-1(a) of the Unified Code of

         Corrections (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012)), which provided that:

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       No. 1-14-1094

               "if, during the commission of the offense, the person personally

               discharged a firearm that proximately caused *** death to another

               person, 25 years or up to a term of natural life shall be added to the term

               of imprisonment imposed by the court."

¶ 38           Defendant attached the modified first-degree murder instructions that

         were tendered to his jury, as well as a portion of the sentencing transcript during

         which his trial counsel objected to the imposition of the sentencing

         enhancement because the jury did not receive a separate verdict form for the

         firearm enhancement.      Defendant claimed that he was wrongly sentenced

         pursuant to the firearm enhancement provision because the jury was not

         correctly instructed.

¶ 39           With respect to defendant's document, the trial court observed on

         December 6, 2013: "First whether or not it's properly filed here that's the first

         issue. If it's not properly filed, I'll strike the motion. Are you able to tell me if

         it's properly filed? It's not a [section 2-]1401 petition." The trial court also

         stated: "This Court loses jurisdiction *** [a]fter the appeal is concluded. Then

         there's other remedies [section 2-]1401 remedies, post-conviction remedies and

         so it would come back to the original court. This could just be a guy that's busy

         typing from jail while he's being represented by the Appellate Defender's




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       No. 1-14-1094

         Office." The trial court then struck defendant's document in a written order,

         filed December 6, 2013, which stated in full:

                   "It is hereby ordered that the defendant's 'Motion to Vacate

               Conviction/Sentence as Void' is not properly filed.

                   This matter is currently pending before the Appellate Court under case

               number 13-535.

                   The defendant's motion is stricken."

         It is this order which is the subject of the current appeal.

¶ 40           On April 29, 2014, this court entered an order allowing defendant's late

         notice of appeal and appointing the State Appellate Defender to represent him.

         On May 9, 2014, the trial court also entered an order appointing the State

         Appellate Defender, and this appeal now follows.

¶ 41                                      ANALYSIS

¶ 42           On this appeal, defendant characterizes his "Motion to Vacate

         Conviction/Sentence as Void" as a section 2-1401 petition (735 ILCS 5/2-

         1401(a) (West 2012)), but concedes that he "chose the incorrect vehicle to

         present his claims" and that "a circuit court is not required to construe a

         collateral petition arguing constitutional violations as a post-conviction petition

         if the pleading does not explicitly invoke the [Post-Conviction Hearing] Act, as

         is the case here." In addition, defendant also observes that this court recently

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       No. 1-14-1094

         rejected his underlying substantive argument.        Sharp, 2015 IL App (1st)

         130438, ¶¶ 79-80.

¶ 43           For the following reasons, we do not find defendant's arguments

         persuasive.

¶ 44                                I. Standard of Review

¶ 45           Defendant argues that our standard of review is de novo and cites in

         support People v. Vincent, 226 Ill. 2d 1 (2007). In Vincent, our supreme court

         held that, in section 2-1401 proceedings, where a trial court enters either

         judgment on the pleadings or a dismissal for failure to state a cause of action,

         the proper standard of review is de novo. Vincent, 226 Ill. 2d at 15-17. Without

         conceding that defendant's document was a 2-1401 petition, the State agrees

         that the issue before us is a question of law subject to de novo review.

¶ 46           However, defendant also argues that the trial court had the discretion to

         treat his document as a postconviction petition even though it did not invoke the

         Post-Conviction Hearing Act (Act), and that the trial court should have done so.

         725 ILCS 5/122-1(d) (West 2012) (a trial court "need not evaluate" under the

         Act a document which fails to specify the Act); People v. Shellstrom, 216 Ill. 2d

         45, 53 (2005) ("where a pro se pleading alleges a deprivation of rights

         cognizable in a postconviction proceeding, a trial court may treat the pleading



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       No. 1-14-1094

         as a postconviction petition, even where the pleading is labeled differently").

         This argument suggests an abuse-of-discretion review.

¶ 47            However, whether we applied a de novo or an abuse-of-discretion

         standard of review, our conclusion would be the same.

¶ 48                                   II. Section 2-1401

¶ 49            On appeal, defendant characterizes his filing as a section 2-1401 petition.

¶ 50            Section 2-1401 permits relief from final judgments, which are older than

         30 days but were entered less than 2 years ago. 735 ILCS 5/2-1401(a), (c)

         (West 2012); People v. Laugharn, 233 Ill. 2d 318, 322 (2009). "To obtain relief

         under section 2-1401, the defendant 'must affirmatively set forth specific factual

         allegations supporting each of the following elements: (1) the existence of a

         meritorious defense or claim; (2) due diligence in presenting this defense or

         claim to the circuit court in the original action; and (3) due diligence in filing

         the section 2-1401 petition for relief.' " People v. Pinkonsly, 207 Ill. 2d 555, 565

         (2003) (quoting Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21 (1986)). "[A]n

         action brought under section 2-1401 is a civil proceeding and, according to this

         court's long-standing precedent, is subject to the usual rules of civil practice,

         even when it is used to challenge a criminal conviction or sentence." Vincent,

         226 Ill. 2d at 6.



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       No. 1-14-1094

¶ 51                                  III. Incorrect Vehicle

¶ 52           In defendant's brief to this court, he acknowledges:           "It is true that

         [defendant] chose the incorrect vehicle to present his claims ***." Defendant

         explains that his "petition for relief from judgment and supporting

         documentation challenged appellate counsel's performance for failing to raise a

         jury instruction claim, but this ineffectiveness claim, based upon the federal and

         Illinois constitutions, was only cognizable pursuant to the Post-Conviction

         Hearing Act (the Act)" (725 ILCS 5/122-1(a)(1) (West 2012) (providing

         prisoners with a process to challenge "a substantial denial of his or her rights

         under the Constitution of the United States or of the State of Illinois" in the

         proceedings which resulted in his or her conviction)). Nonetheless, defendant

         argues that, "while a circuit court is not required to construe a collateral petition

         alleging constitutional violations as a post-conviction petition if the pleading

         does not explicitly the Act, as is the case here, it is within a court's discretion to

         do so."

¶ 53           Section 122-1(d) of the Act provides in full:

                   "(d) A 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

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       No. 1-14-1094

               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."       (Emphasis added.) 725 ILCS 5/122-1(d) (West

               2012).

¶ 54        Although a trial court "need not evaluate" a mislabeled petition, our supreme

         court has held that it may. In Shellstrom, cited by defendant, our supreme court

         held: "where a pro se pleading alleges a deprivation of rights cognizable in a

         postconviction proceeding, a trial court may treat the pleading as a

         postconviction petition, even where the pleading is labeled differently."

         Shellstrom, 216 Ill. 2d at 53.

¶ 55           In a footnote, the Shellstrom court further explained, that "while a trial

         court may treat a pro se pleading as a postconviction petition, there is no

         requirement that the court do so." (Emphases in original.) Shellstrom, 216 Ill.

         2d at 53 n.1. The supreme court then quoted subsection (d) and stated:

               "In other words, if a pro se pleading alleges constitutional deprivations

               that are cognizable under the Act, but, as in the case at bar, the pleading

               makes no mention of the Act, a trial court is under no obligation to treat

               the pleading as a postconviction petition. Nevertheless, as our appellate

               court has pointed out, this does not mean that a trial court is barred from

               treating a pro se pleading as a postconviction petition. 'If the court need

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       No. 1-14-1094

                not do so, then by the strongest of implications, it also may do so.'

                (Emphases in original.) People v. Helgesen, 347 Ill. App. 3d 672, 676

                (2004)." (Emphasis in original.) Shellstrom, 216 Ill. 2d at 53 n.1.

¶ 56        Our supreme court then noted the adverse consequences that could flow to

         the defendant from the trial court's recharacterization and held that, in the

         future, when a circuit court recharacterizes as a postconviction petition a

         pleading that a pro se litigant has labeled differently, "the circuit court must (1)

         notify the pro se litigant that the court intends to recharacterize the pleading, (2)

         warn the litigant that this recharacterization means that any subsequent

         postconviction petition will be subject to the restrictions on successive

         postconviction petitions, and (3) provide the litigant an opportunity to withdraw

         the pleading or to amend it so that it contains all the claims appropriate to a

         postconviction petition that the litigant believes he or she has." Shellstrom, 216

         Ill. 2d at 57.

¶ 57            In the case at bar, we cannot find that the trial court erred by not

         recharacterizing defendant's document, which set forth only one claim, as a

         successive postconviction petition, in light of the consequences to defendant

         that such a recharacterization would have.

¶ 58            Our conclusion is bolstered by the fact that this court recently rejected an

         argument similar to the underlying substantive argument made by defendant.

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       No. 1-14-1094

         Sharp, 2015 IL App (1st) 130438, ¶¶ 79-80 (no error in modified attempted

         first-degree murder instruction, which included the 25-to-life personal discharge

         sentencing enhancement for proximately causing great bodily harm). In his

         brief, defendant acknowledges: "It is true that one panel of the First District

         Appellate Court recently rejected a similar argument." However, defendant

         argues that the very fact that "such a challenge was raised" shows that his claim

         was not meritless. On the contrary, the fact that this court rejected the claim

         does not show its merit.

¶ 59                                   CONCLUSION

¶ 60           For the foregoing reasons, we cannot find any error in the trial court's

         striking of the document which defendant labeled a "Motion to Vacate

         Conviction/Sentence as Void."

¶ 61           Affirmed.




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