                  NOTICE                          NO. 5-03-0117
 Decision filed 01/11/06. The text of
 this decision may be changed or                     IN THE
 corrected prior to the filing of a
 Petition   for    Rehearing   or   the   APPELLATE COURT OF ILLINOIS
 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                       ) Circuit Court of
   Plaintiff-Appellee,                 ) Marion County.
                                       )
v.                                     ) No. 86-CF-125
                                       )
FRANK VOLKMAR,                         ) Honorable
                                       ) Dennis E. Middendorff,
   Defendant-Appellant.                ) Judge, presiding.
________________________________________________________________________

            JUSTICE WELCH delivered the opinion of the court:

            We revisit this case on remand from the Illinois Supreme Court, which, upon the
denial of a petition for leave to appeal and in the exercise of its supervisory authority,

directed us to determine whether the postconviction petition of the defendant, Frank

Volkmar, was dismissed at the first stage or second stage of postconviction proceedings and

to address the propriety of that dismissal in light of People v. Blair, 215 Ill. 2d 427 (2005).

People v. Volkmar, 216 Ill. 2d 730 (2005) (supervisory order). The circuit court of Marion

County had dismissed the defendant's amended postconviction petition on the grounds of
waiver, res judicata, and untimeliness. On appeal to this court, the parties raised the issue of

whether the circuit court's dismissal of the amended postconviction petition was a first- or
second-stage dismissal. We found it unnecessary to decide that issue because, we held, in
either event the dismissal of the petition was error.

            In our previous disposition of this cause (People v. Volkmar, No. 5-03-0117 (2004)
(unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23))), we held that if the

petition was dismissed as frivolous or patently without merit at the first stage of the

                                                       1
proceedings, it was error because waiver, res judicata, and untimeliness were not proper

grounds for a summary dismissal at the first stage of postconviction proceedings. We also
held that if the petition was dismissed at the second stage of the proceedings, it was error

because a dismissal at that stage was not proper in the absence of a motion to dismiss by the
State. Accordingly, we reversed the dismissal of the defendant's amended postconviction
petition and remanded the cause to the circuit court of Marion County for further proceedings
on the petition.

       Subsequent to our decision, the supreme court ruled in Blair, 215 Ill. 2d at 442, that a
postconviction petition may be summarily dismissed at the first stage of postconviction

proceedings on the grounds of waiver or res judicata. The State's petition for leave to appeal
our decision to the supreme court was denied, but in the exercise of its supervisory authority,

the supreme court has directed us to determine whether the defendant's petition was

dismissed at the first or second stage of postconviction proceedings and to address the

propriety of that dismissal in light of Blair. We find that the defendant's petition was
dismissed at the second stage of postconviction proceedings, when a dismissal on the

grounds of waiver, res judicata, or untimeliness is only appropriate on the motion of the

State. Because the State had not filed such a motion, we reverse the dismissal of the

defendant's postconviction petition and remand this cause to the circuit court of Marion
County for further proceedings on the postconviction petition.
       The defendant's conviction and 60-year prison term for first-degree murder were

affirmed by this court on direct appeal in People v. Volkmar, 183 Ill. App. 3d 149 (1989). On
April 22, 2002, the defendant filed in the circuit court of Marion County a pro se petition
pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)),

alleging that his sentence violated Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435,
120 S. Ct. 2348 (2000). He contemporaneously sought leave to proceed as a poor person and

                                              2
sought the appointment of counsel to assist him. On October 11, 2002, no action having been

taken on his postconviction pleadings, the defendant filed another motion for the appointment
of counsel. On October 22, 2002, the circuit court appointed counsel for the defendant and

ordered that any amendments to the petition be filed within 90 days. On November 12, 2002,
the defendant's court-appointed counsel entered his appearance and filed a motion for
discovery. On January 10, 2003, the defendant's counsel filed a certificate pursuant to
Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)) stating that he had consulted with the

defendant, examined the record of the trial proceedings, and made any necessary
amendments to the pro se petition.

       On February 7, 2003, the defendant filed a pro se motion for leave to amend his
postconviction petition, seeking to present numerous new claims of constitutional

deprivations. On February 10, 2003, the circuit court of Marion County entered an order

stating that it had reviewed the motion for leave to amend the postconviction petition. The

order dismissed the amended petition as patently without merit on the grounds of waiver, res
judicata, and untimeliness. Because both the amendment and the dismissal occurred more

than 90 days after the filing of the original petition and after counsel had been appointed to

represent the defendant, we find that the dismissal occurred during the second stage of the

proceedings, when a sua sponte summary dismissal was not proper. At this stage of the
proceedings, a dismissal can be granted only on the motion of the State.
       The Act provides that upon the filing of a petition pursuant to the Act, the circuit court

has 90 days in which to examine the petition and enter an order either dismissing the petition
as frivolous or patently without merit or docketing the petition for further consideration in
accordance with sections 122-4 through 122-6 of the Act (725 ILCS 5/122-4 through 122-6

(West 2004)). 725 ILCS 5/122-2.1 (West 2004). The Act states, "If the petition is not
dismissed pursuant to this Section, the court shall order the petition to be docketed for further

                                               3
consideration ***." (Emphasis added.) 725 ILCS 5/122-2.1(b) (West 2004).

       If the petition survives this first stage of the proceedings and is docketed for further
proceedings, it moves on to the second stage of the proceedings. For this stage, section 122-4

of the Act provides as follows: if the petition is not dismissed pursuant to section 122-2.1 of
the Act (725 ILCS 5/122-2.1 (West 2004)) and the defendant is indigent and requests
counsel, the court shall appoint counsel to represent the defendant. 725 ILCS 5/122-4 (West
2004). Section 122-5 provides that the State has 30 days from the time the petition is

docketed for further proceedings in which to file an answer to the petition or a motion to
dismiss the petition. 725 ILCS 5/122-5 (West 2004). If the petition survives a motion to

dismiss, the State has 20 days in which to file an answer to the petition. 725 ILCS 5/122-5
(West 2004).

       At the third stage of the proceedings, the court holds a hearing on the petition and

either grants or denies the relief requested. 725 ILCS 5/122-6 (West 2004).

       In the case at bar, the petition was not dismissed within 90 days pursuant to section
122-2.1. Thus, under the mandate of the Act ("[i]f the petition is not dismissed ***, the court

shall order the petition to be docketed" (725 ILCS 5/122-2.1(b) (West 2004))), it appears the

court was obligated to docket the petition for further consideration. Indeed, the circuit court

appointed counsel for the defendant pursuant to section 122-4 of the Act, something the Act
expressly provides can only be done "[i]f the petition is not dismissed pursuant to [s]ection
122-2.1" (725 ILCS 5/122-4 (West 2004)). The confusion in the case at bar arises because

the defendant filed an amended postconviction petition after the initial 90-day time period
had expired, which the circuit court apparently believed began a new 90-day time period for
determining if the amended petition should be dismissed as frivolous or patently without




                                              4
merit. 1

           In People v. Greer, 341 Ill. App. 3d 906, 910 (2003), the appellate court held that a

trial court's power to summarily dismiss pursuant to section 122-2.1 on the basis that the
petition is frivolous or patently without merit must be exercised within 90 days after the
filing of the petition. After that time, the circuit court can no longer summarily dismiss the

petition pursuant to section 122-2.1. Instead, the State is required to file an answer or a
motion to dismiss. Where the circuit court has lost its power to dismiss pursuant to section
122-2.1 and the State has filed no motion to dismiss, the circuit court errs in dismissing the

petition. See People v. Porter, 122 Ill. 2d 64, 85 (1988) (the time period in section 122-2.1 is

mandatory, and a summary dismissal order entered beyond that time period is void).

However, in People v. Watson, 187 Ill. 2d 448, 451 (1999), the supreme court held that the

filing of an amended postconviction petition restarts the 90-day period during which the

           1
               There does not seem to be any dispute that the initial 90-day time period had expired

and that the original petition could not have been summarily dismissed pursuant to section
122-2.1 of the Act. The dispute centers on whether the filing of an amended petition after the

expiration of the original 90-day time period begins a new 90-day time period during which

the circuit court may examine and summarily dismiss the amended petition as frivolous or

patently without merit pursuant to section 122-2.1.




                                                    5
circuit court may summarily dismiss the petition as frivolous or patently without merit. In

that case, the defendant filed a pro se postconviction petition in which he sought leave to file
an amended petition, which was granted. During the initial 90-day time period, the defendant

filed an amended petition. Within 90 days thereafter, the circuit court dismissed the amended
petition as frivolous or patently without merit. On appeal, the defendant argued that the
circuit court was not authorized to summarily dismiss the amended petition more than 90
days after the filing of the original petition. The supreme court disagreed, holding that the

90-day period restarted when the defendant filed his amended petition. Watson, 187 Ill. 2d at
451. The court held that the legislature had authorized a court considering a postconviction

petition to allow amendments to the petition and that it would be unreasonable to authorize
the court to allow amendments to the petition and yet require the court to rule on the

amended petition within the period remaining for the consideration of the original petition.

Watson, 187 Ill. 2d at 451.

       In Watson, the defendant filed his amended petition on day 88 of the initial 90-day
period, allowing the circuit court only 2 days in which to examine the amended petition to

determine if it was frivolous or patently without merit. The supreme court found that this

would be inadequate and unfair, working to the detriment of all, including both defendants

and prosecutors. Watson, 187 Ill. 2d at 451. Accordingly, the court held that, when a
defendant who has filed an original postconviction petition subsequently files an amended
petition, the 90-day period in which the court must examine the amended petition and enter

an order thereon is to be calculated from the filing of the amended petition.
       We find it noteworthy that in Watson, the amended petition was actually filed within
the initial 90-day time period during which a summary dismissal is allowed. Thus, in

Watson, the proceedings had not yet passed from the first stage to the second stage. In
Watson, the trial court never lost the power or authority to summarily dismiss the petition

                                               6
pursuant to section 122-2.1, and the 90-day time period was extended upon the filing of the

amended petition. In the case at bar, the proceedings had passed from the first stage to the
second stage at the time the amended petition was filed, and the trial court had therefore lost

its authority or power to summarily dismiss the petition pursuant to section 122-2.1.
       We do not believe that Watson stands for the proposition that any time an amended
petition is filed, the 90-day time period for summary dismissal starts anew. Counsel
appointed in the second stage of the proceedings pursuant to section 122-4 of the Act must

have the opportunity to amend the petition. People v. Dredge, 148 Ill. App. 3d 911, 912
(1986). To allow the summary dismissal of a petition that has been amended by counsel

might deter counsel from making any amendment, for fear that it would make the petition
vulnerable to a sua sponte summary dismissal by the circuit court. Furthermore, such a rule

would not advance the purpose sought to be achieved by allowing a summary dismissal of

the initial petitionBto deter the filing of frivolous pro se petitions and save both the court and

the prosecutor from having to expend time and resources on them. It must be assumed that
counsel, who by signing a pleading certifies pursuant to Supreme Court Rule 137 (155 Ill. 2d

R. 137) that it is well-grounded in fact and in law and is not interposed for an improper

purpose, will not file a frivolous or patently unmeritorious petition. We acknowledge that in

the case at bar the amended petition was filed pro se and was not signed by counsel.
Nevertheless, we believe that once counsel has been appointed, any dismissal of the petition
should be by adversary process, based on a motion to dismiss filed by the prosecutor, and not

done sua sponte and summarily by the circuit court.
       Furthermore, in the case at bar, where the amended petition was filed beyond the
initial 90-day period of section 122-2.1, the original petition had already passed muster and

must be deemed not to have been frivolous or patently without merit. The original petition
was thus subject to a dismissal only upon the motion of the State. It stands to reason, then,

                                                7
that the amended petition should also be subject to a dismissal only upon the motion of the

State.    Where the original petition has already passed into the second stage of the
postconviction proceedings, necessitating either an answer or a motion to dismiss from the

State and further proceedings thereon, it does not seem unduly burdensome to either the court
or the prosecutor to require a motion to dismiss the amended petition. In Watson, the original
petition had not passed muster and was still subject to a dismissal as frivolous or patently
without merit at the time the amended petition was filed. Furthermore, counsel had not been

appointed to represent the defendant. In that case, extending the 90-day time period for a
summary dismissal is sensible and consistent with the purposes of the Act.

         In People v. Lara, 317 Ill. App. 3d 905, 907 (2000), the appellate court interpreted the
aforementioned precedents to mean that a summary dismissal more than 90 days after the

petition is filed is void, unless the defendant requested leave to amend within the period for

the trial court's first-stage review. We agree with this interpretation of the case law and

hereby hold that once the postconviction proceedings have advanced from the first stage to
the second stage by virtue of the expiration of the 90-day period set forth in section 122-2.1,

the petition may not be summarily dismissed as frivolous or patently without merit. At the

second stage of the proceedings, the petition may only be dismissed on the motion of the

State as provided in section 122-5 of the Act.
         Because in the instant case the defendant's amended petition was filed beyond the 90-
day time period set forth in section 122-2.1, after counsel had been appointed and the

proceedings had advanced to the second stage, the circuit court erred in sua sponte
summarily dismissing the amended petition. Accordingly, we remand this cause to the
circuit court for further proceedings on the amended petition.



         Reversed; cause remanded.

                                                8
DONOVAN and CHAPMAN, JJ., concur.




                             9
                                            NO. 5-03-0117
                                               IN THE

                                APPELLATE COURT OF ILLINOIS
                                  FIFTH DISTRICT
___________________________________________________________________________________
      THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                            ) Circuit Court of
         Plaintiff-Appellee,                ) Marion County.
                                            )
      v.                                    ) No. 86-CF-125
                                            )
      FRANK VOLKMAR,                        ) Honorable
                                            ) Dennis E. Middendorff,
         Defendant-Appellant.               ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed:                     January 11, 2006
___________________________________________________________________________________

Justices:           Honorable Thomas M. Welch, J.
                 Honorable James K. Donovan, J., and
                 Honorable Melissa A. Chapman, J.,
                 Concur
___________________________________________________________________________________

Attorneys        Daniel M. Kirwan, Deputy Defender, Nancy L. Vincent, Assistant Defender, Office
for              of the State Appellate Defender, Fifth Judicial District, 730 E. Illinois Highway 15,
Appellant        Suite #1, Mt. Vernon, IL 62864
___________________________________________________________________________________
Attorneys        Hon. James Creason, State's Attorney, Marion County Courthouse, P.O. Box 157,
for              Salem, IL 62881; Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director,
Appellee         T. David Purcell, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor,
                 730 E. Illinois Highway 15, P.O. Box 2249, Mt. Vernon, IL 62864
___________________________________________________________________________________
