                                           2016 IL App (3d) 140586

                                Opinion filed December 19, 2016
       _____________________________________________________________________________

                                                    IN THE

                                     APPELLATE COURT OF ILLINOIS

                                              THIRD DISTRICT

                                                     2016

       THE PEOPLE OF THE STATE OF                       )       Appeal from the Circuit Court
       ILLINOIS,                                        )       of the 14th Judicial Circuit,
                                                        )       Rock Island County, Illinois,
              Plaintiff-Appellee,                       )
                                                        )       Appeal No. 3-14-0586
              v. 	                                      )       Circuit No. 06-CF-696

                                                        )

       JASON J. THOMPSON,                               )       Honorable

                                                        )       F. Michael Meersman,
              Defendant-Appellant.                      )       Judge, Presiding.
       _____________________________________________________________________________

             JUSTICE McDADE delivered the judgment of the court, with opinion.
             Justices Lytton and Wright concurred in the judgment and opinion.
       _____________________________________________________________________________

                                                  OPINION

¶1            Defendant, Jason J. Thompson, appeals the denial of his postconviction petition at the

       second stage of proceedings. Defendant contends that the trial court erred in denying his petition

       without holding an evidentiary hearing. We reverse and remand for a third-stage evidentiary

       hearing.

¶ 2	                                                FACTS

¶3            Following a stipulated bench trial, defendant was found guilty of two counts of first

       degree murder (720 ILCS 5/9-1(a)(2), (a)(3) (West 2006)). The trial court sentenced defendant to
     60 years’ imprisonment. At the sentencing hearing, the trial court indicated that the two counts

     would merge into one conviction. However, the written sentencing order stated that defendant

     was sentenced to 60 years’ imprisonment on each count of first degree murder, to be served

     concurrently. On direct appeal, we affirmed defendant’s conviction. People v. Thompson, No. 3­

     08-0132 (2009) (unpublished order under Supreme Court Rule 23).

¶4          Defendant filed a pro se postconviction petition. The petition argued that defendant’s

     arrest was void and his subsequent statements to the police should have been suppressed because

     he was arrested without a warrant and held for an unduly long period of time before his probable

     cause hearing. The trial court found that defendant’s pro se petition presented the gist of a

     constitutional claim and ordered that the petition be docketed for further postconviction

     proceedings.

¶5          Defendant filed a pro se “Supplemented Post-Conviction Petition” arguing that “Illinois

     Revised Statutes, Ch38 [sic], sec. 109-1(a)” was unconstitutional and void because it provided no

     legal remedy for a violation of fourth amendment rights.

¶6          Defendant then filed an amended postconviction petition through counsel. The petition

     argued that defendant received ineffective assistance of trial and appellate counsel. Specifically,

     the petition argued that defendant’s due process rights were violated when (1) two first degree

     murder judgments were entered against him for the murder of the same individual and (2) the

     sentencing judge “based his sentencing on his personal belief that people like the defendant don’t

     deserve mercy from the court and *** are a real threat to society.” The amended petition also

     argued that appellate counsel was ineffective for failing to raise these issues. The amended

     petition also sought “incorporation of the arguments contained within and the Affidavits attached

     to [defendant’s] pro se Petition for Post-Conviction Relief.”


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¶7             Defendant then filed a pro se “Motion for Leave to File Supplemental Claims in the

       Currently Pending Amended Post-Conviction Petition.” The motion alleged that postconviction

       counsel failed to include several claims in the amended petition that defendant believed to be

       meritorious. Defendant argued that he should be able to present all of his postconviction claims

       to the court even if his postconviction counsel did not “agree” with all of his claims.

¶8             Defendant also filed a pro se “Supplemental Amended Post-Conviction Petition.” The

       supplemental petition argued that (1) trial counsel was ineffective for failing to raise various

       objections to the photographic lineups at the suppression hearing, (2) trial counsel was

       ineffective for failing to raise a meritorious fourth amendment claim based on defendant being

       held by the police for an unduly long period of time before he was taken before a judge for a

       probable cause hearing, and (3) section 109-1(a) of the Code of Criminal Procedure of 1963 (725

       ILCS 5/109-1(a) (West 2006)), which provided that a person arrested for a crime shall be taken

       “without unnecessary delay before the nearest and most accessible judge in that county,” was

       unconstitutional in that it was vague and ambiguous and provided no remedy for noncompliance.

¶9             On September 27, 2013, the trial court held a “second stage hearing.” The trial court

       stated that it had read the trial transcript, the file, the amended postconviction petition filed

       through counsel, and defendant’s various pro se filings. The trial court said it would consider

       defendant’s pro se supplemental claims even though postconviction counsel did not adopt them.

       Both postconviction counsel and the assistant State’s Attorney stated that they did not wish to

       present any evidence.

¶ 10           After hearing arguments, the trial court dismissed the amended petition. The trial court

       found that only one conviction for first degree murder had been entered and that the sentencing

       judge did not err in sentencing defendant to 60 years’ imprisonment. The trial court also denied


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       relief based on defendant’s pro se supplemental claims. Postconviction counsel filed a notice of

       appeal on behalf of defendant.

¶ 11          Defendant filed a pro se motion to reconsider. The motion alleged that postconviction

       counsel filed a notice of appeal without consulting defendant. The motion argued that the trial

       court erred in dismissing the postconviction petition because the State had not answered the

       petition or filed a motion to dismiss.

¶ 12          We dismissed defendant’s appeal and ordered the trial court to rule on defendant’s

       motion to reconsider. People v. Thompson, No. 3-13-0735 (Nov. 18, 2013) (dispositional order).

¶ 13           A hearing was held following our dismissal of the appeal. Postconviction counsel stood

       on the grounds for reconsideration in the pro se motion to reconsider. The State argued that

       “[a]ny potential penalties for the State’s failure to file [an answer or a motion to dismiss] does

       not include granting the petition.” Ultimately, the trial court ordered the State to file an answer or

       a motion to dismiss.

¶ 14          On June 5, 2014, the State filed an answer to the amended petition filed by counsel. The

       answer admitted the allegations contained in the postconviction petition. The answer stated that

       the court entered judgment on one count of first degree murder but the judgment order

       erroneously showed two convictions and sentences for first degree murder. The answer stated

       that this was a “typographical error” and that the conviction and sentence on the second count of

       first degree murder should be vacated. Regarding the allegations in the petition that the

       sentencing judge based the sentence on improper factors, the answer stated as follows:

                      “Respondent admits that the sentencing court made the comment alleged, but that

                      must be considered in the context of the case. In the evidence, the Court heard

                      that Petitioner confessed to police the day after shooting that he shot the victim


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                      solely to steal the victim’s cannabis and money. He also admitted there was no

                      provocation for the shooting other than the robbery. Taken in context the Court’s

                      statement is and was reasonable and based upon the evidence.”

¶ 15          A hearing was held after the State filed its answer. The trial court indicated that the

       hearing was “in relation to a motion to reconsider my dismissal of [defendant’s] second-stage

       post-conviction petition.” The trial court ruled as follows:

                              “I have reviewed the files again and gone over this. I’ve gone over the

                      motion to reconsider, the State’s answer, and, again, the Defendant and his

                      counsel both of their responses to the State’s motion. The State acknowledges that

                      they need to do a new sentencing order in relation showing that there’s only one

                      conviction for the First-Degree Murder.

                              The other matters, again, that I made my ruling back earlier as far as the

                      dismissal of the motion to reconsider or the reason I dismissed the post-conviction

                      petition, I haven’t changed my mind. I think I was right then. I think I’m right

                      now.

                              The State is to file a new sentencing order in relation to the First-Degree

                      Murder charge as far as Count 1 and Count 2 had merged into that. The rest of the

                      Defendant’s post-conviction allegations are denied, the motion to reconsider is

                      denied except for the change of the sentencing order.”

¶ 16          The trial court entered an amended judgment order showing that defendant was convicted

       of only one count of first degree murder.




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¶ 17                                               ANALYSIS

¶ 18          Defendant contends that the dismissal of his postconviction petition at the second stage of

       proceedings, without holding an evidentiary hearing, was improper because the State answered

       the petition rather than filing a motion to dismiss. We agree. See People v. Pendleton, 223 Ill. 2d

       458, 472-73 (2006); People v. Volkmar, 363 Ill. App. 3d 668, 670 (2006); People v. Andrews,

       403 Ill. App. 3d 654, 658-59 (2010); People v. Snow, 2012 IL App (4th) 110415, ¶ 14.

¶ 19          Our supreme court has described the procedure for the second and third stages of

       postconviction proceedings as follows:

                              “At the second stage of postconviction proceedings, counsel may be

                      appointed for defendant, if defendant is indigent. [Citation.] ***

                              After counsel has made any necessary amendments to the petition, the

                      State may move to dismiss a petition or an amended petition pending before the

                      court. [Citation.] If that motion is denied, or if no motion to dismiss is filed, the

                      State must answer the petition, and, barring the allowance of further pleadings by

                      the court, the proceeding then advances to the third stage, a hearing wherein the

                      defendant may present evidence in support of the petition. [Citation.] Pendleton,

                      223 Ill. 2d at 472-73.

¶ 20          Here, the trial court advanced defendant’s postconviction petition to the second stage of

       proceedings and appointed counsel. Counsel filed an amended petition. The trial court eventually

       directed the State to file a motion to dismiss or an answer to the petition, and the State chose to

       answer the petition. We hold that, because the State filed an answer rather than a motion to

       dismiss, the trial court erred in dismissing the petition and should have advanced the petition to a

       third-stage evidentiary hearing. See id.; Volkmar, 363 Ill. App. 3d at 670 (holding that a


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       dismissal can be granted only on the motion of the State at the second stage of postconviction

       proceedings); Andrews, 403 Ill. App. 3d at 658-59 (“If the trial court does not grant the State’s

       motion to dismiss or if the State has filed an answer, the petition proceeds to the third stage,

       where the defendant may present evidence in support of his petition.”); Snow, 2012 IL App (4th)

       110415, ¶ 14 (“If the State does not file a motion to dismiss or the court denies such a motion,

       the petition advances to the third stage, wherein the court holds a hearing at which the defendant

       may present evidence in support of his or her petition.”).

¶ 21          In reaching our holding, we reject the State’s argument that “established law” provides

       that the trial court must make an independent determination at the second stage of proceedings as

       to whether the petition makes a substantial showing of a constitutional violation regardless of

       whether the State files a motion to dismiss. Stated another way, the State contends that it is of no

       consequence that it filed an answer rather than a motion to dismiss because, in either scenario,

       the trial court must determine whether the petition made a substantial showing of a constitutional

       violation before advancing it to the third stage. In support of its argument, the State cites People

       v. Edwards, 197 Ill. 2d 239, 246 (2001): “At [the second] stage, the circuit court must determine

       whether the petition and any accompanying documentation make a substantial showing of a

       constitutional violation.” The State reads the foregoing statement too broadly. Instead, we find

       that the statement merely describes the standard the trial court is to apply when ruling on a

       second-stage motion to dismiss. See People v. Demitro, 406 Ill. App. 3d 954, 956 (2010) (“To

       withstand a second-stage motion to dismiss, the defendant must make a substantial showing that

       his constitutional rights have been violated, taking all well-pled facts as true.”); see also People

       v. Flowers, 2015 IL App (1st) 113259, ¶ 31.




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¶ 22          The State also points to People v. Gaultney, 174 Ill. 2d 410, 418 (1996), in support of its

       argument that the trial court must make an independent second-stage determination regarding

       whether a postconviction petition makes a substantial showing of a constitutional violation.

       Specifically, the State relies on the following sentence in Gaultney: “If the circuit court does not

       dismiss or deny the petition [at the second stage of proceedings], the proceeding advances to the

       third stage.” Id. The State contends that the only way the trial court could ever deny a petition at

       the second stage of proceedings would be to “make some sort of finding.”

¶ 23          We note that Gaultney did not involve a trial court dismissing or denying a

       postconviction petition at the second stage of proceedings for failing to make a substantial

       showing of a constitutional violation absent a motion to dismiss. Rather, the issue in Gaultney

       was the effect of the State filing a motion to dismiss at the first stage of proceedings rather than

       the second stage. Id. at 416. The State does not point to any cases in which a court actually held

       that a postconviction petition was properly denied or dismissed at the second stage of

       proceedings absent a motion to dismiss.

¶ 24          We reject the State’s contention that our holding “would completely negate the role of the

       trial judge in the process” in that a postconviction petition would move forward to the third stage

       “automatically” if the State did not file a motion to dismiss. There is nothing “automatic” about a

       postconviction petition’s advancement to the third stage. Pursuant to section 122-5 of the Post-

       Conviction Hearing Act (725 ILCS 5/122-5 (West 2014)), the State is free to file a motion to

       dismiss at the second stage of proceedings if it would like the trial court to dismiss the petition

       based on its insufficiency of the petition. If the State elects instead to answer the petition, the

       State chooses to have the trial court resolve the issues raised in the postconviction petition

       following an evidentiary hearing. Snow, 2012 IL App (4th) 110415, ¶ 14.


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¶ 25          We also reject the State’s argument that its answer was “part answer and part dismissal.”

       The State’s argument ignores the fact that an answer and a motion to dismiss are categorically

       different pleadings:

                              “An answer and a motion to dismiss, though, are by no means related. By

                      its answer, a party either admits or denies the allegations contained in the

                      complaint, thereby framing the issues to be resolved later by litigation. A motion

                      to dismiss, on the other hand, attacks the sufficiency of the complaint.” Tyler v.

                      J.C. Penney Co., 145 Ill. App. 3d 967, 972 (1986).

¶ 26          The State’s failure to concede the postconviction claim regarding the sentencing

       comments within its answer does not somehow act to transform the answer into a motion to

       dismiss. Simply put, the answer did not request that the court dismiss the amended petition nor

       did it argue that the petition failed to make a substantial showing of a constitutional violation.

       Rather, the effect of the answer’s denial of the sentencing comments claim was to frame the

       scope of the dispute to be resolved at an evidentiary hearing.

¶ 27                                             CONCLUSION

¶ 28          The judgment of the circuit court of Rock Island County is reversed, and the cause is

       remanded for a third-stage evidentiary hearing.

¶ 29          Reversed and remanded.




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