                      Nos. 2--04--0750 & 2--04--0751 cons. filed: 6/23/06
______________________________________________________________________
________

                                       IN THE

                          APPELLATE COURT OF ILLINOIS

                           SECOND DISTRICT
______________________________________________________________________
________

THE PEOPLE OF THE STATE            ) Appeal from the Circuit Court
OF ILLINOIS,                       ) of Lake County.
                                   )
      Plaintiff-Appellee,          )
                                   )
v.                                 ) No. 98--CF--1033
                                   )
JAMES P. QUIGLEY,                  ) Honorable
                                   ) Victoria A. Rossetti,
      Defendant-Appellant.         ) Judge, Presiding.
_________________________________________________________________________
_____

THE PEOPLE OF THE STATE            ) Appeal from the Circuit Court
OF ILLINOIS,                       ) of Lake County.
                                   )
      Plaintiff-Appellee,          )
                                   )
v.                                 ) No. 98--CF--1178
                                   )
JAMES P. QUIGLEY,                  ) Honorable
                                   ) Victoria A. Rossetti,
      Defendant-Appellant.         ) Judge, Presiding.
_________________________________________________________________________
_____

      PRESIDING JUSTICE GROMETER delivered the opinion of the court:

      Defendant, James P. Quigley, appeals the trial court's summary dismissal of his

petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West

2004)). He argues that we must reverse and remand for further proceedings under the Act
Nos. 2--04--0750 & 2--04--0751 cons.

because the trial court required his petition to meet a standard higher than that necessary

to survive summary dismissal. Assuming that the trial court applied the wrong standard, we

determine that we may apply the proper standard in the first instance. Because defendant

concedes that his petition does not satisfy that standard, we affirm the summary dismissal.

       Under the Act, a postconviction proceeding that does not involve the death penalty

consists of three stages. At the first stage, the defendant files a petition and the trial court

has 90 days in which it may review the petition without the input of any party and summarily

dismiss it if it is frivolous or patently without merit. 725 ILCS 5/122--2.1(a)(2) (West 2004);

People v. Jones, 211 Ill. 2d 140, 144 (2004). To survive summary dismissal, the petition

must present only the gist of a constitutional claim. Jones, 211 Ill. 2d at 144. If the petition

advances to the second stage, the defendant may be appointed counsel and may amend

his petition. The State may then move to dismiss it. 725 ILCS 5/122--4, 122--5 (West

2004); People v. Gaultney, 174 Ill. 2d 410, 418 (1996). To survive dismissal at the second

stage, the petition must make a substantial showing of a constitutional violation. People v.

Edwards, 197 Ill. 2d 239, 246 (2001). If the petition advances to the third stage, the trial

court conducts an evidentiary hearing. 725 ILCS 5/122--6 (West 2004); Edwards, 197 Ill.

2d at 246.

       Here, defendant filed his petition on April 26, 2004. The trial court summarily

dismissed the petition within 90 days (on June 15, 2004), without the input of any party.

However, although the court determined that the petition was "without merit," the court

added that the petition "failed to make a substantial showing that [defendant's]

Constitutional rights were violated." As noted, a substantial showing of a constitutional

violation is required to survive dismissal at the second stage; to survive summary dismissal,



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a petition must present only the gist of a constitutional claim. Thus, the court's reference to

the substantial-showing standard was inappropriate. Edwards, 197 Ill. 2d at 246.

       The State notes that, in Gaultney, the supreme court affirmed a summary dismissal

that included the trial court's finding " 'that [the] Defendant's Petition fails to present a

substantial showing of [a] violation of [the] Defendant's constitutional rights.' " Gaultney,

174 Ill. 2d at 416. The supreme court stated that such language "involves general

terminology that is common in post-conviction proceedings" and added that the trial court

"specifically found that the petition was 'frivolous and patently without merit,' which is the

proper statutory standard for [summary] dismissal." Gaultney, 174 Ill. 2d at 422. We note

that the supreme court made these comments in determining only that the trial court had

not relied on the input of the State. However, the supreme court certainly implied that,

despite the trial court's inappropriate reference to the substantial-showing standard

(Edwards, 197 Ill. 2d at 246), its additional determination that the petition was frivolous and

patently without merit established that the court applied the proper standard. Thus, in this

case, as the trial court similarly found that defendant's petition was "without merit," we

acknowledge the possibility that it applied the proper standard, despite its similarly

inappropriate reference to the substantial-showing standard.

       Ultimately, however, whether the trial court applied the proper standard is

immaterial. As the trial court summarily dismissed the petition within 90 days and without

the input of any party, the dismissal was procedurally proper. In People v. Cleveland, 342

Ill. App. 3d 912, 915-16 (2003), which involved a procedurally proper summary dismissal

that was based on an improper ground, we determined that we could affirm the dismissal

on any proper ground. Thus, assuming that the trial court summarily dismissed defendant's



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petition on the improper ground that it fails to make a substantial showing of a constitutional

violation, we may affirm that dismissal if the petition fails to present the gist of a

constitutional claim. As defendant concedes that it does not, we affirm.

       Defendant relies on three cases, none of which persuades us that we are required to

reverse and remand for second-stage proceedings under the Act. In People v. Dauer, 293

Ill. App. 3d 329 (1997), the trial court purported to enter a summary dismissal, but it

dismissed the petition beyond the 90-day limitations period. The dismissal was not a

procedurally proper summary dismissal that was based on an improper ground; instead,

because the court did not comply with the procedural requirements of a summary

dismissal, the dismissal was void. See People v. Volkmar, 363 Ill. App. 3d 668, 671 (2006).

Thus, in effect, there was no dismissal for the appellate court to affirm on any proper

ground.

       Similarly, in People v. Merritte, 225 Ill. App. 3d 986 (1992), the trial court purported to

enter a summary dismissal, but it dismissed the petition at least partly on the basis of the

State's premature motion to dismiss. Again, the dismissal was not a procedurally proper

summary dismissal on an improper ground; instead, the dismissal was void. See People v.

Magdaleno, 188 Ill. App. 3d 384, 386 (1989).

       Finally, defendant cites People v. Reed, 302 Ill. App. 3d 1007 (1999), which requires

a bit more consideration. There, the trial court summarily dismissed the petition, apparently

without any procedural impropriety, but based on its finding that the petition was untimely.

The appellate court determined that the petition was timely; thus, the summary dismissal




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was procedurally proper yet based on an improper ground. 1 Nevertheless, the appellate

court reversed and remanded.

       Interestingly, both parties asked the appellate court to review what the trial court

labeled its " 'advisory' " opinion that the petition was without merit. Reed, 302 Ill. App. 3d at

1010. However, the appellate court declined to do so, reasoning that neither the trial court

nor the appellate court could issue an advisory opinion.

       We submit that the Reed court was unduly distracted by the term "advisory." The

trial court's ruling that the petition lacked merit was not so much an advisory opinion as it

was an alternative basis for its summary dismissal. Similarly, had the appellate court

reviewed that ruling and found it correct, the court would not have issued an advisory

opinion but simply would have exercised the well-settled principle, which we invoked in

Cleveland, that an appellate court may affirm a trial court's judgment on any proper ground,

even if the trial court relied on a different ground. See Cleveland, 342 Ill. App. 3d at 915.
       1
           Of course, the supreme court had not yet determined that untimeliness is an

improper ground for summary dismissal even when the petition is actually untimely. See

People v. Boclair, 202 Ill. 2d 89, 99 (2002).




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Thus, to the extent that Reed holds that an appellate court may not affirm on any proper

ground a procedurally proper summary dismissal that was based on an improper ground,

we decline to follow it.

       Defendant asserts, bluntly, that our willingness to reverse and remand due to

procedural error but not due to substantive error "makes no sense."              According to

defendant, "[i]t obviously is just as important--perhaps more important--that the trial court

be substantively correct as well as procedurally correct in its ruling. And, if procedural error

at the first stage warrants remand for second-stage proceedings, then so too should

substantive error at the first stage." We respectfully disagree. The sense behind our

rationale is that, when a summary dismissal is substantively erroneous, it is merely

erroneous; thus, we may affirm it on a different substantive ground. However, when a

summary dismissal is procedurally erroneous, at least in the contexts of Dauer and

Merritte, it is not merely erroneous but rather is void. As a void judgment is one that the

trial court has no power to enter (People v. Rogers, 364 Ill. App. 3d 229, 246 (2006)), we

see no way that such a judgment could be one that the appellate court has the power to

affirm. Moreover, given a procedural error, we cannot fathom what an alternate procedural

ground would entail.

       For the reasons set forth above, the judgment of the circuit court of Lake County is

affirmed.

       Affirmed.

       BOWMAN and O'MALLEY, JJ., concur.




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