                   NOS. 4-08-0026, 4-08-0260 cons.      F: 12/19/08

                        IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,      )   Appeal from
          Plaintiff-Appellee,             )   Circuit Court of
          v.                              )   Jersey County
SAMUEL L. PACE,                           )   No. 96CF35
          Defendant-Appellant.            )
                                          )   Honorable
                                          )   Tim P. Olson,
                                          )   Judge Presiding.
_________________________________________________________________

            JUSTICE KNECHT delivered the opinion of the court:

            In April 2007, counsel for defendant, Samuel Pace,

moved for the voluntary dismissal without prejudice of a pro se

petition filed pursuant to the Post-Conviction Hearing Act (Act)

(725 ILCS 5/122-1 through 122-8 (West 1998)).    Approximately nine

months later, defendant sought reinstatement of his entire

petition.    In March 2008, the trial court concluded defendant was

not entitled to reinstatement and refused defendant's request.

Defendant appeals, arguing he had an absolute right to reinstate

his postconviction petition.    We need not explore whether a right

to reinstate was absolute, because we find the petition should

have been reinstated whether the decision was required or a

matter of discretion.

                            I. BACKGROUND

            In June 1997, defendant, Samuel Pace, was convicted of

first-degree murder (720 ILCS 5/9-1(a)(1) (West Supp. 1995)).    He
was sentenced to a term of natural life imprisonment.    Defendant

pursued a direct appeal.    We affirmed his conviction and sen-

tence.   People v. Pace, No. 5-97-0467 (December 1, 1998) (unpub-

lished order under Supreme Court Rule 23).

            In July 1999, defendant filed his pro se postconviction

petition.   In his petition, defendant made numerous allegations

of error, including 28 allegations of trial-counsel error, 17

allegations of appellate-counsel error, and 17 allegations of

prosecutorial misconduct.    In September 1999, the trial court

determined three allegations were "of concern": (1) defense

counsel forced defendant to testify; (2) the sheriff gave false

testimony, as indicated by his conflicting testimony from the

guilty-plea hearing and the suppression hearing; and (3) a juror

told the sheriff she was forced to vote "guilty."    The court

found the other claims frivolous or patently without merit and

appointed counsel.   At least one other issue, concerning an

Apprendi-based argument (Apprendi v. New Jersey, 530 U.S. 466,

147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)), was also raised.

            On April 2, 2007, counsel for defendant petitioned for

voluntary dismissal without prejudice.    Counsel stated he re-

viewed defendant's petition, met with defendant, conducted

interviews of witnesses, and solicited affidavits related to the

petition.   Counsel concluded "currently there is no colorable

argument for a post-conviction petition."    Counsel further


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requested the dismissal "with leave to re-file in the future if

appropriate evidence along with affidavits become available."

On June 12, 2007, the court dismissed defendant's petition.

          On January 26, 2008, defendant asked the trial court to

reconsider the dismissal of his postconviction petition.    In his

motion to reconsider the voluntary dismissal, defendant sought

reinstatement of the petition.    Defendant argued his public

defender, Todd Parish, did not notify him "either before or after

filing" the motion for voluntary dismissal of defendant's

postconviction petition.   Defendant also maintained Parish, when

filing the motion for voluntary dismissal, also sought to be

removed from defendant's case.    According to defendant, Parish

should have been removed and should not have been allowed to seek

the dismissal of his postconviction petition.

          In March 2008, the trial court held a hearing on

defendant's motion to reconsider.    At this hearing, counsel

stated he researched and considered the three arguments of

concern as identified by the trial court.    Counsel stated he read

the entire court record and did not find any inconsistencies that

had merit.   Counsel stated he twice spoke with the juror who

denied defendant's allegations she was coerced into finding

defendant guilty.   As for the argument defendant was forced to

plead guilty, counsel twice spoke with defendant's trial counsel

and received copies of two letters trial counsel wrote to defen-


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dant.    Counsel believed no colorable argument could be made on

this ground as well.

            Appointed counsel further stated the following about

his conversation with defendant and the decision to withdraw his

petition:

                 "And consequently, I told [defendant]

            that in a meeting here in the courthouse.      At

            first he was, I think he was a bit frustrated

            with my conclusions and continued to make the

            same statements about well, these, I still

            think these are issues.    I told him I don't

            believe there is any issue, that I had an

            obligation to research those issues, speak to

            those people, read the court record, there

            were not any issues, and I told him I was

            going to file a voluntary petition to dis-

            miss, and at that time he said yes, that was,

            if that's what I thought was best, then

            that's what I should do.      And that's what I

            did, Your Honor."

            The trial court denied defendant's request to recon-

sider the dismissal of his postconviction petition and to rein-

state.    This appeal followed.

                            II. ANALYSIS


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          The parties agree a trial court may grant leave to a

petitioner under the Act to withdraw his or her petition. 725

ILCS 5/122-5 (West 2006) ("The court may in its discretion grant

leave, at any stage of the proceeding prior to entry of judgment,

to withdraw the petition").   The parties disagree as to when or

how a motion to reinstate may or should be granted.

          Defendant argues the reinstatement of his voluntarily

withdrawn petition is required.   Defendant cites the Third

District decision of People v. English, 381 Ill. App. 3d 906,

909, 885 N.E.2d 1214, 1217 (2008), and maintains when a trial

court permits a defendant to withdraw his petition voluntarily,

"the defendant can refile and reinstate the petition and have it

treated as the original."   Defendant contends as long as the

petitioner who voluntarily withdrew his petition requests rein-

statement within one year of the dismissal or before the expira-

tion of the applicable statute of limitations, whichever is

later, reinstatement is mandated.   Defendant reasons section 122-

5 of the Act authorizes a trial court to enter orders in

postconviction cases "as is generally provided in civil cases."

725 ILCS 5/122-5 (West 2006).   Defendant argues, in civil cases,

section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217

(West 1994) (as the section read before enactment of Public Act

89-7 (Pub. Act 89-7, §15, eff. March 9, 1995), which was declared

unconstitutional in Best v. Taylor Machine Works, 179 Ill. 2d


                                - 5 -
367, 689 N.E.2d 1057 (1997))) applies and authorizes reinstate-

ment within one year of the voluntary dismissal, even if the

limitations period expired:

                "In *** any other act *** where the time

           for commencing an action is limited, if ***

           the action is voluntarily dismissed by the

           plaintiff, *** the plaintiff *** may commence

           a new action within one year or within the

           remaining period of limitation, whichever is

           greater, *** after the action is voluntarily

           dismissed by the plaintiff."

           The State first contends "nowhere in section 122-5, or

anywhere in the Act, is there a provision that allows reinstate-

ment of a voluntarily withdrawn petition."   The State maintains

the decision in English is wrong because, it contends, the court

lifted the "civil cases" language from the end of section 122-5

and used the language to find the rules of the Code of Civil

Procedure apply to petitions filed pursuant to the Act.

           The State argues the Code of Civil Procedure does not

apply to the Act except where it is explicitly mentioned.   The

State contends the Act refers to civil cases or the Code of Civil

Procedure in two sentences, indicating a legislative intent not

to apply civil practice law generally to procedures under the

Act.   The first appears in section 122-4, which discusses how to


                               - 6 -
calculate filing fees and court costs for prisoners who file

frivolous petitions.   725 ILCS 5/122-4 (West 2006).   The second

is in section 122-5.   The State argues the "civil cases" language

can only be applied to the sentence in which it appears.    The

State further argues the General Assembly did not provide for a

means to reinstate a voluntarily withdrawn petition because

section 122-1 of the Act allows the filing of a petition at any

time if the delay was not due to the petitioner's culpable

negligence (see 725 ILCS 5/122-1 (West 2006)).

           The Third District in a similar case determined rein-

statement was required.    English, 381 Ill. App. 3d at 910, 885

N.E.2d at 1218.   In 1999, the English defendant filed a

postconviction petition with a request for the appointment of

counsel while his appeal was pending.    English, 381 Ill. App. 3d

at 907, 885 N.E.2d at 1215.   Appointed counsel amended the

petition and added new grounds.    On August 6, 2003, defendant

moved for the voluntary dismissal "without prejudice" of his

postconviction petition.   The trial court granted defendant's

motion.   English, 381 Ill. App. 3d at 907, 885 N.E.2d at 1215.

           In January 2004, the English defendant filed a

postconviction petition alleging a new error.    The State re-

sponded with a motion to dismiss, arguing this was a successive

petition and defendant did not satisfy the cause-and-prejudice

test.   English, 381 Ill. App. 3d at 907, 885 N.E.2d at 1215.     In


                                - 7 -
May 2004, the trial court granted the State's motion upon con-

cluding the defendant did not show cause for the failure to raise

the claim in the earlier petition.       English, 381 Ill. App. 3d at

907, 885 N.E.2d at 1215-16.    On August 5, 2004, defendant moved

to reinstate and amend the postconviction petition he had volun-

tarily dismissed.   The State moved to dismiss defendant's motion.

The trial court refused to reinstate defendant's petition.

English, 381 Ill. App. 3d at 907, 885 N.E.2d at 1216.

          On appeal, the defendant argued the trial court should

have reinstated his petition because his request to reinstate was

filed within one year of the voluntary dismissal.       English, 381

Ill. App. 3d at 909, 885 N.E.2d at 1217.      The Third District

agreed.   The English court reasoned while section 122-5 granted

courts discretion to allow a defendant to withdraw voluntarily an

initial postconviction petition, the Act failed to "address how

or when a trial court may reinstate a voluntarily withdrawn

postconviction petition."     English, 381 Ill. App. 3d at 908, 885

N.E.2d at 1216.

          Defendant contends this court should follow English.

In his reply brief, defendant argues the Illinois Supreme Court

denied the petition for leave to appeal the English decision.

See People v. English, 229 Ill. 2d 638, ___ N.E.2d ___ (No.

106529, appeal denied 2008).    Defendant maintains "in keeping

with the [s]upreme [c]ourt's apparent approval of English, that


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case provides the correct framework and should be followed."

This argument has no merit.   "[D]enials of leave to appeal ***

carry no connotation of approval or disapproval of the appellate

court action, and signify only that four members of this court,

for reasons satisfactory to them, have not voted to grant leave."

People v. Vance, 76 Ill. 2d 171, 183, 390 N.E.2d 867, 872 (1979).

           We begin with the Act.   Contrary to the State's argu-

ment, the Act is not silent on the issue of reinstatement.    While

the Act does not use the term "reinstate" or explicitly refer to

the reinstatement of a voluntarily withdrawn petition, it does

grant authority to courts to "make such order as to amendment of

the petition or any other pleading, or as to pleading over, or

filing further pleadings."    (Emphases added.)   725 ILCS 5/122-5

(West 2006).   A petition is a pleading.   See Black's Law Dictio-

nary 1191 (8th ed. 2004) (defining pleadings as "[a] formal

document in which a party to a legal proceeding (esp. a civil

lawsuit) sets forth or responds to allegations, claims, denials,

or defenses"); see also 725 ILCS 5/122-5 (West 2006) (allowing

the amendment of the "petition or any other pleading" (emphasis

added)).   Asking the court to reinstate a voluntarily dismissed

or withdrawn petition is the same as asking the court to allow

"pleading over" or to permit the "filing [of] further pleadings."

725 ILCS 5/122-5 (West 2006).   The last sentence of section 122-5

applies to defendant's reinstatement request.


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           We note this conclusion renders irrelevant the State's

argument the "civil cases" language does not apply to the Act in

general.   In making this argument, the State concluded "section

122-5 is only intended to give courts authority to use civil

procedure in those specific instances mentioned in that last

sentence."   The flaw in the State's argument is the "civil cases"

language appears in the very sentence that gives the trial court

discretion to make orders regarding "pleading over" or "filing

further pleadings" or refiling withdrawn petitions.

           The question remains whether the trial court has

discretion to allow reinstatement or a refiling of a voluntarily

withdrawn petition or whether the reinstatement is mandatory.    We

turn to the relevant language of section 122-5:

                "The court may in its discretion make

           such order as to amendment of the petition or

           any other pleading, or as to pleading over,

           or filing further pleadings, or extending the

           time of filing any pleading other than the

           original petition, as shall be appropriate,

           just and reasonable and as is generally pro-

           vided in civil cases."   725 ILCS 5/122-5

           (West 2006).

           The sentence begins with giving the trial court discre-

tion to determine when to allow parties to plead over or amend.


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The sentence ends with a reference to "civil cases."   As we know

from defendant's argument, the "civil cases" authorize the

refiling of a voluntarily dismissed complaint within one year of

the voluntary dismissal.   In this case, less than one year has

passed since the trial court authorized the voluntary dismissal.

           Defendant's position, consistent with the holding in

English, is although the General Assembly gave the trial court

discretion to allow "pleading over" or "filing further plead-

ings," it then removed that discretion within the same sentence.

We need not decide whether this interpretation is the correct

one.   Under the circumstances of this case, whether reinstatement

was mandatory or an act of discretion, defendant's request to

reconsider and reinstate should have been allowed.

           The Act creates a remedy for prisoners who suffered "a

substantial violation of their constitutional rights at trial."

People v. Edwards, 197 Ill. 2d 239, 243-44, 757 N.E.2d 442, 445

(2001).   Under the Act, there are three stages for proceedings

for those not sentenced to the death penalty.    In the first

stage, after a prisoner files a petition, the circuit court must

review it within 90 days to ascertain whether "'the petition is

frivolous or patently without merit.'"    Edwards, 197 Ill. 2d at

244, 757 N.E.2d at 445, quoting 725 ILCS 5/122-2.1(a)(2) (West

1998).    A petition will survive this stage if it is not frivolous

or patently without merit or, in other words, sets forth the gist


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of a constitutional claim.    See 725 ILCS 5/122-2.1(a)(2) (West

2004); People v. Ledbetter, 342 Ill. App. 3d 285, 286, 794 N.E.2d

1067, 1068-69 (2003).

          If the petition succeeds in setting forth the gist of a

constitutional claim, it proceeds to the second stage.    See 725

ILCS 5/122-2.1(b) (West 2004).    At this stage, counsel may be

appointed for those defendants who allege they are "unable to pay

the costs of the proceeding."    725 ILCS 5/122-4 (West 2004).

          Appointed counsel is required, under Supreme Court Rule

651(c) (134 Ill. 2d R. 651(c)), to (1) consult with the peti-

tioner "to ascertain his contentions of deprivation of constitu-

tional right"; (2) examine the record of the trial proceedings;

and (3) make amendments "necessary for an adequate presentation

of petitioner's contentions."    Rule 651(c) does not require

counsel to amend the pro se petition.    People v. Jennings, 345

Ill. App. 3d 265, 272, 802 N.E.2d 867, 873 (2003).    Indeed,

ethical obligations prohibit counsel from doing so if the claims

are frivolous or spurious. People v. Greer, 212 Ill. 2d 192, 205,

817 N.E.2d 511, 519 (2004).    The question remains what should

counsel do if counsel investigates the claims but finds them

without merit.   The case law provides options.   One is to stand

on the allegations in the pro se petition and inform the court of

the reason the petition was not amended.    See, e.g., People v.

Wolfe, 27 Ill. App. 3d 551, 552, 327 N.E.2d 416, 417-18 (1975).


                                - 12 -
Another is to withdraw as counsel.       Greer, 212 Ill. 2d at 194-95,

212, 817 N.E.2d at 514, 523.    In both of these scenarios, the

allegations in the pro se petition remained to proceed according

to the parameters of the Act.    See Greer, 212 Ill. 2d at 195,

212, 817 N.E.2d at 514, 523; Wolfe, 27 Ill. App. 3d at 552, 327

N.E.2d at 417-18.

          In addition to authorizing the appointment of counsel

and the amendment of a pro se petition, the second stage requires

State involvement.   The State has the option of moving to dismiss

or answering the petition.   725 ILCS 5/122-5 (West 2006).     If the

petition survives the second stage, it advances to the third

stage for an evidentiary hearing.    See 725 ILCS 5/122-6 (West

2006).

          In this case, the petition advanced to the second stage

after the trial court found three allegations "of concern" and

appointed counsel.   Counsel did not amend the petition or ask to

withdraw as counsel.   Instead, counsel pursued another option:

the voluntary dismissal of his client's petition "with leave to

re-file in the future if appropriate evidence along with affida-

vits become available."   The trial court granted the dismissal.

When defendant asked for a reinstatement, he did so within the

time "civil cases" allow the refiling of a complaint.      See 735

ILCS 5/13-217 (West 2006).   The court denied his request.

          The trial court should have granted defendant's request


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to reinstate his petition.    The record does not firmly establish

what defendant knew when the motion for voluntary dismissal was

filed.   At the hearing on the motion to reconsider the voluntary

dismissal, counsel stated he informed defendant he decided to

file the petition for voluntary dismissal.    While counsel also

indicated defendant consented if counsel "thought it was best,"

counsel did not date the discussion or, more importantly, indi-

cate he gave defendant the option of proceeding on his pro se

petition.    This latter information is significant because counsel

indicated when he told defendant his intentions to voluntarily

dismiss the case, defendant continued to believe his case had

merit.

            Considering the established options available to

counsel, the choice of voluntary dismissal is troublesome under

these circumstances.    If counsel and the trial court believed

defendant's case lacked merit, they should have allowed the pro

se petition to proceed with or without counsel.    Instead, the

court allowed the voluntary dismissal upon defense counsel's

request for leave to amend if evidence became available.    Defen-

dant's three remaining claims, however, were not of the type that

would have benefitted from a delay.     The juror twice denied she

had been influenced, trial counsel and the record provided proof

defendant was aware of his right not to testify, and the record

did not divulge significant inconsistencies in the sheriff's


                               - 14 -
testimony.    The record shows no indication time would have

resulted in any evidence to counter these conclusions.

          Ultimately, the combined actions of appointed counsel

and the trial court usurped the second stage of the proceedings

under the Act, denying defendant the very process he sought by

filing his pro se petition.    The petition should have been

reinstated.

                           III. CONCLUSION

          For the reasons stated, we find the trial court erred

in denying defendant's request to reinstate his pro se petition.

We reverse the order on defendant's motion to reconsider the

voluntary dismissal and remand for further proceedings.

          Reversed and remanded.

          STEIGMANN and APPLETON, JJ., concur.




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