                                                                      FIFTH DIVISION
                                                                      December 19, 2008


No. 1-07-1014


THE PEOPLE OF THE STATE OF ILLINOIS,                          )       Appeal from the
                                                              )       Circuit Court of
       Plaintiff-Appellee,                                    )       Cook County.
                                                              )
       v.                                                     )       No. 90 CR 29983
                                                              )
SHONGO COLLIER,                                               )       The Honorable
                                                              )       Thomas R. Sumner,
       Defendant-Appellant.                                   )       Judge Presiding.


       JUSTICE TOOMIN delivered the opinion of the court:

       Defendant, Shongo Collier, appeals from an order of the circuit court of Cook County

denying him leave to file a successive petition for relief under the Post-Conviction Hearing Act

(Act) (725 ILCS 5/122-1 et seq. (West 2006)). Defendant contends that the trial court erred

because: (1) he presented a freestanding claim of actual innocence; and (2) the court improperly

permitted input by the prosecutor during the first stage of the postconviction proceedings.

Defendant also asserts that the court erred in imposing fees and costs pursuant to section 22-105

of the Code of Civil Procedure (Code) (735 ILCS 5/22-105 (West 2006)). He further requests

that the mittimus be corrected to reflect a single conviction for the offense of first degree murder.



       For the following reasons, we vacate the order for fees and costs, order the mittimus to be

corrected and affirm the court’s judgment in all other respects.
1-07-1014



                                          BACKGROUND

        In 1991, following a bench trial before Judge Howard Savage, defendant was convicted

of first degree murder and sentenced to 45 years’ imprisonment in the Department of

Corrections. The conviction stemmed from the drive-by shooting of Keith Muldrew on

November 18, 1990, at or near 7016 South Sangamon in the city of Chicago. At trial, the sole

eyewitness, Terrence Franks, identified defendant as the driver and shooter. Erica Wright

corroborated Franks’ testimony that he left her apartment and joined up with the victim just prior

to the shooting. Additionally, Tyrone Freeman testified that at 11 p.m. he had dropped off

defendant at his home, thereby contradicting defendant’s defense of alibi. Judgment was

affirmed on direct appeal notwithstanding petitioner’s claims of reasonable doubt and excessive

sentence. People v. Collier, No. 1-92-0598 (1995) (unpublished order under Supreme Court

Rule 23).

        On June 7, 1993, during the pendency of his direct appeal, defendant filed a pro se

petition for postconviction relief. The petition alleged, inter alia, (1) illegal arrest; (2) perjury by

Terrence Franks; (3) the State’s manipulation of Tyrone Freeman’s testimony; and (4) trial

counsel’s failure to properly investigate. The petition was summarily dismissed by the trial court

upon a finding of res judicata or waiver. On April 18, 1995, the dismissal was affirmed. People

v. Collier, No. 1-93-3513 (1995) (unpublished order under Supreme Court Rule 23).

        On August 2, 1999, private counsel filed a successive postconviction on defendant’s

behalf asserting a claim of actual innocence based upon newly discovered evidence. The petition


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1-07-1014

incorporated affidavits of Terrence Franks and Erica Wright recanting their trial testimony.

Franks now averred that he did not witness the murder and stated he had falsely identified and

accused defendant at trial. Similarly, Erica now stated that she had fabricated her testimony to

match that of Franks. On October 25, 1999, the trial court summarily dismissed the successive

petition finding that defendant had failed to demonstrate that the proceedings on the original

petition had been fundamentally deficient and that defendant’s claim was barred by res judicata.

On March 19, 2001, we affirmed the dismissal, holding that petitioner had failed to show

diligence in obtaining the affidavits of both Franks and Wright. People v. Collier, No. 1-99-4212

(2001) (unpublished order under Supreme Court Rule 23).

       On April 26, 2005, defendant filed another pro se petition for relief, this time pursuant to

section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2004)). In that petition, he asserted that

his right to due process had been violated by the State’s use of perjured testimony, as well as by

the knowing use of testimony coerced by a key officer, Detective McWeeny. In support, he

incorporated the identical affidavits of Franks and Wright that were earlier rejected in his

successive petition. On June 9, 2005, the trial court by written order recharacterized the pleading

as a petition for postconviction relief before summarily dismissing it as frivolous and patently

without merit.

       Defendant appealed, and on respondent’s motion, we remanded the matter pursuant to

People v. Shellstrom, 216 Ill. 2d 45, 833 N.E.2d 863 (2005). People v. Collier, No. 1-05-2432

(2006) (unpublished order pursuant to Supreme Court Rule 23). On January 18, 2007, defendant

was returned to court and given his Shellstrom admonishments. On that occasion, defendant


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elected to have his previously filed section 2-1401 petition treated as a successive petition for

postconviction relief. Defendant requested 60 days to amend the petition, which the court

allowed.

       On March 7, 2007, defendant filed the instant petition for postconviction relief, facially

captioned as “Newly Discovered Evidence of Actual Innocence.” In this second successive

petition, he alleges that the State knowingly used perjured testimony of Tyrone Freeman,

Terrence Franks and Erica Wright that had been coerced by Detective McWeeny. Defendant

again incorporated the earlier affidavits of Franks and Wright, as well as Freeman’s affidavit

dated October 7, 2006. Freeman averred that when Detective McWeeny and Assistant State’s

Attorney Eileen Rubin took his statement, they directed that he change the time he dropped off

defendant in such manner as to destroy defendant’s defense of alibi. In a supplement to the

successive petition filed March 19, 2007, defendant further asserted that trial counsel was

ineffective for failing to call Preston Berry, a potential witness who would have denied that an

earlier altercation took place between Muldrew and the defendant, thereby contradicting the

State’s “motive” evidence presented at trial.

       On March 26, 2007, the trial court rejected the claims set forth in defendant’s successive

petition and also granted the State’s motion for fees, costs and reduction of good-time credits.

The dismissal order concluded:

       “That the defendant’s second successor [sic] post-conviction petition is summarily

       dismissed pursuant to the cause and prejudice requirements set forth in People v.

       Pitsonbarger, 205 Ill. 2d 444, 793 N.E.2d 600 [sic] (2002) as these allegations are


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1-07-1014

       frivolous and patently without merit, res judicata, and otherwise waived. See also,

       People v. Blair, 215 Ill. 2d 427, 831 N.E. 2d 604 (2005).”

                                             ANALYSIS

                          1. Dismissal of the Second Successive Petition

       We first address defendant’s contention that the trial court “misconstrued his free-

standing claim of actual innocence to require compliance with the cause and prejudice test” and

erred in summarily dismissing the petition because defendant presented the gist of an actual

innocence claim based on newly discovered evidence. Alternatively, defendant asserts that his

allegations sufficed to establish the cause-and-prejudice test. In response, the State maintains

that the trial court’s order did not constitute a first-stage dismissal but, rather, denied defendant

leave to file a second successive postconviction petition.

       While the trial court may impliedly have suggested a first-stage dismissal by directing

that the “second successor [sic] post-conviction petition is summarily dismissed,” the order

nonetheless expressly states that dismissal is “pursuant to the cause and prejudice requirements

set forth in People v. Pitsonbarger.” Although we concur in the State’s position that the trial

court’s order denied leave to file the successive petition, our resolution of this issue is premised

upon different grounds.

       A trial court’s compliance with statutory procedures implicates a question of law.

Accordingly, our standard of review is de novo. People v. Spivey, 377 Ill. App. 3d 146, 148, 879

N.E.2d 391, 394 (2007). Our review is of the trial court’s judgment, not the reasons given for the

judgment. People v. Lee, 344 Ill. App. 3d 851, 853, 801 N.E.2d 969, 972 (2003).


                                                   5
1-07-1014

       The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)) provides

a means whereby criminal defendants can assert that their convictions were the result of a

substantial denial of their rights under the United States Constitution, the Illinois Constitution, or

both. 725 ILCS 5/122-1(a) (West 2006); People v. Harris, 206 Ill. 2d 293, 299, 794 N.E.2d 181,

186 (2002). Postconviction relief is limited to constitutional deprivations that occurred at the

original trial. People v. Coleman, 183 Ill. 2d 366, 380, 701 N.E.2d 1063, 1071 (1998).

       The Act generally limits a defendant to the filing of but one postconviction petition,

(People v. Holman, 191 Ill. 2d 204, 210, 730 N.E.2d 39, 43 (2000)) and expressly provides that

any claim of substantial denial of constitutional rights not raised in the original or amended

petition is waived. 725 ILCS 5/122-3 (West 2006). Notwithstanding this procedural bar, claims

in successive petitions may be reviewed when the proceedings on the original petitions are

deficient in some fundamental way. People v. Britt-El, 206 Ill. 2d 331, 339, 794 N.E.2d 204, 209

(2002). Section 122-1(f) of the Act provides the legislature’s limited grant of authority for

successive petitions:

                “Only one petition may be filed by a petitioner under this Article without

       leave of the court. Leave of court may be granted only if a petitioner demonstrates

       cause for his or her failure to bring the claim in his or her initial post-conviction

       proceedings and prejudice results from that failure.” 725 ILCS 5/122-1(f) (West

       2006).

       Adoption of the cause-and-prejudice test in subsection (f) thus codifies our supreme

court’s holding in People v. Pitsonbarger, 205 Ill. 2d 444, 793 N.E.2d 609 (2002). Cause is


                                                  6
1-07-1014

defined as an objective factor, external to the defense, that impeded the defendant’s effort to raise

the claim in an earlier proceeding. Pitsonbarger, 205 Ill. 2d at 460, 793 N.E.2d at 621.

Prejudice is defined as an error so serious that it affected the entire trial to the extent that the

resulting conviction violates due process. Pitsonbarger, 205 Ill. 2d at 464, 793 N.E.2d at 624.

Both requirements must be satisfied in order for the defendant to prevail. Pitsonbarger, 205 Ill.

2d at 464, 793 N.E.2d at 624.

        In People v. LaPointe, 227 Ill. 2d 39, 879 N.E.2d 275 (2007), our supreme court held that

because section 122-1(f) “expressly conditions leave to file on the petitioner’s satisfaction of the

cause-and-prejudice test, a second or successive petition cannot be considered filed despite its

having been previously accepted by the clerk’s office.” LaPointe, 227 Ill. 2d at 44, 879N.E.2d at

278. The court thus determined that, “Having been denied leave to file the petition, LaPointe’s

case ended at that point without his second petition having ever been properly filed under the

statute.” LaPointe, 227 Ill. 2d at 44, 879 N.E.2d at 278. Accordingly, the submission of a

second postconviction petition does not in itself trigger review on the merits. People v. Wyles,

383 Ill. App. 3d 271, 274, 891 N.E. 2d 437, 439 (2008).

        Earlier, in People v. DeBerry, 372 Ill. App. 3d 1056, 868 N.E.2d 382 (2007), the Fourth

District affirmed the dismissal of defendant’s successive postconviction petition because

defendant had likewise failed to comply with section 122-1(f) by first seeking leave to file the

successive petition. The court held that section 122-1(f) acts as a “procedural hurdle to any such

consideration that the legislature has intentionally chosen to impose regarding such petitions.”

DeBerry, 372 Ill. App. 3d at 1060, 868 N.E.2d at 384. A violation of the statute “trumps


                                                    7
1-07-1014

anything that defendant’s petition may contain.” DeBerry, 372 Ill. App. 3d at 1060, 868 N.E.2d

at 385. See also People v. Thompson, 383 Ill. App. 3d 924, 928, 890 N.E.2d 1119, 1124 (2008).

       An identical result obtained in People v. Spivey, where the Second District held that, in

accordance with LaPointe, a defendant must obtain the trial court’s express leave in order to file

a second postconviction petition. The trial court’s consideration of the merits of the petition

cannot be construed as an implicit ruling that the defendant has met section 122-1(f)’s threshold.

Spivey, 377 Ill. App. 3d at 149-50, 879 N.E.2d at 395-96. Moreover, the court further held that

because section 122-1(f) is a procedural prerequisite to obtaining review on the merits, the failure

to meet the requirements of the statute means that the trial court need not, and should not,

consider the merits of the petition, and the same proscription applies to the reviewing court.

Spivey, 377 Ill. App. 3d at 150, 879 N.E.2d at 395-96, quoting DeBerry, 372 Ill. App. 3d at 1060,

868 N.E.2d at 384-85.

       However, the procedural history of this case warrants a relaxation of the bright-line rule

articulated in LaPointe and other appellate court decisions. Notably, here as in People v. Smith,

383 Ill. App. 3d 1078, 892 N.E.2d 55 (2008), defendant’s 2005 petition for relief was grounded

on section 2-1401 and, following recharacterization as a successive postconviction petition, was

summarily dismissed. We remanded the matter pursuant to Shellstrom and after receiving his

mandated admonishments, defendant elected to treat the filing as a successive petition. By

granting defendant’s request to amend the petition, here, as in Smith, the trial court implicitly

acknowledged a request for leave to file and thus fulfilled the requirements of section 122-1(f).

Smith, 383 Ill. App. 3d at 1084, 892 N.E.2d at 62. Although we agree that the filing of a separate


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motion for leave to file a successive petition is the preferred mode of proceeding, given the

unique circumstances presented here, the procedure did not hinder the trial court from

performing its review under section 122-1(f). See People v. Conick, No. 105621, slip op. at 7 n.2

(November 20, 2008).

          In the instant case, although defendant concededly failed to seek leave of court prior to

filing his second successive petition, he asserts that he was not required to do so because “a valid

claim of actual innocence can overcome the cause and prejudice test.” Although we have no

disagreement with defendant’s assertion that claims of actual innocence may be raised at any

time, such claims are not self-executing but, rather, must be raised within the framework of an

avenue providing relief. In People v. Washington, 171 Ill. 2d 475, 489, 665 N.E.2d 1330, 1336-

37 (1996), our supreme court recognized that the appropriate footing in the Illinois Constitution

for asserting newly discovered claims of actual innocence was under the Post-Conviction

Hearing Act. Thus, while mindful of Pitsonbarger’s reach, we do not subscribe to defendant’s

view that the mere allegation of actual innocence serves as a talisman to avert the cause-and-

prejudice test. Although a showing of actual innocence may relax the bar of waiver, section 122-

1(f) nonetheless mandates that defendants seek leave of court before filing successive

postconviction petitions. People v. Daniel, 379 Ill. App. 3d 748, 750, 886 N.E.2d 383, 385

(2008).

          Even assuming the merits of defendant’s assertion that claims of actual innocence trump

the cause-and-prejudice test, our analysis of the record within that construct lends little support to

his position. Among the touchstones for judging claims of actual innocence is the requirement


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that the evidence adduced by the defendant must first be “newly discovered.” That means it must

be evidence that was not available at a defendant’s trial and that he could not have discovered

sooner through due diligence. The evidence must also be material and noncumulative. People v.

Morgan, 212 Ill. 2d 148, 154, 817 N.E.2d 524, 527-28 (2004). In addition, it must be of such

conclusive character that it would probably change the result on retrial. People v. Barrow, 195

Ill. 2d 506, 540-41, 749 N.E.2d 892, 913 (2001).

       However, “actual innocence” is not within the rubric of whether a defendant has been

proved guilty beyond a reasonable doubt. People v. Jones, 362 Ill. App. 3d 31, 34, 839 N.E.2d

539, 542 (2005). Rather, the hallmark of “actual innocence” means “total vindication,” or

“exoneration.” People v. Savory, 309 Ill. App. 3d 408, 414-15, 722 N.E.2d 220, 224-25 (1999).

       Here, defendant’s claim of actual innocence necessarily fails for twofold reasons. First,

as to Tyrone Freeman, the purported machinations of Detective McWeeny and Assistant State’s

Attorney Rubin were essentially vetted at trial as well as in defendant’s first pro se

postconviction petition. Although Freeman’s affidavit did not materialize until the pendency of

defendant’s section 2-1401 petition, precedent instructs that evidence is not newly discovered

when it presents facts already known to a defendant at or prior to trial, though the source of these

facts may have been unknown, unavailable or uncooperative. See People v. Moleterno, 254 Ill.

App. 3d 615, 625, 627 N.E.2d 129, 136-37 (1993). As regards Terrence Franks and Erica

Wright, their changing stories were likewise explored at trial. Moreover, in affirming the

dismissal of defendant’s first successive petition, we held that defendant had failed to show

diligence in obtaining the witness’s affidavits. Repackaging those allegations in support of


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defendant’s actual innocence claim undermines any suggestion of diligence.

       Second, as noted, the newly discovered evidence must be of such conclusive nature that it

would probably change the result on retrial. Barrow, 195 Ill. 2d at 540-41, 749 N.E.2d at 913.

Evidence that merely impeaches a witness will typically not be of such conclusive character as to

justify postconviction relief. People v. Chew, 160 Ill. App. 3d 1082, 1086, 513 N.E.2d 1099,

1101 (1987). Here, none of the allegations of defendant’s proffered affidavits go to actual

innocence. At best, they merely impeach or contradict trial testimony. Given the responses of

Freeman at trial, coupled with his impeachment by Assistant State’s Attorney Rubin, the time

discrepancies do not establish defendant’s innocence but, rather, impact Freeman’s credibility as

a witness. Similarly, as regards Franklin and Wright, the allegations of their 1998 affidavits

measured against their trial testimony address considerations of credibility that go to reasonable

doubt, not actual innocence.

       For different reasons we likewise reject the suggestion that Preston Berry’s affidavit

offered in support of defendant’s claim of ineffective assistance of counsel comes within the

rubric of actual innocence. Freestanding claims of innocence contemplate that the newly

discovered evidence is not also being used to supplement the assertion of another constitutional

violation with respect to the trial. Washington, 171 Ill. 2d at 479, 665 N.E.2d at 1332.

Accordingly, in People v. Hobley, 182 Ill. 2d 404, 696 N.E.2d 313 (1998), our supreme court

held that newly discovered evidence of a negative fingerprint report and a second gasoline can

recovered from the crime scene, while supportive of defendant’s Brady, claim, could not also be

raised as a claim of actual innocence. Hobley, 182 Ill. 2d at 444, 696 N.E.2d at 333. See also


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People v. Brown, 371 Ill. App. 3d 972, 984, 864 N.E.2d 767, 778 (2007) (affidavits used to

assert ineffective assistance of counsel claim could not also be used to support a free-standing

claim of actual innocence).

       From the foregoing discussion one could well conclude that defendant has employed his

claims of actual innocence essentially as a vehicle to challenge the sufficiency of the evidence.

However, it has long been established that reasonable doubt of a defendant’s guilt is not a proper

issue for a postconviction proceeding. People v. Frank, 48 Ill. 2d 500, 504, 272 N.E.2d 25, 27

(1971). Succinctly stated, it is not the purpose of the Act to redetermine guilt or innocence.

People v. Eddmonds, 143 Ill. 2d 501, 510, 578 N.E.2d 952, 955-56 (1991). Here, it is

inescapable that the defendant has repackaged the reasonable doubt arguments advanced at trial,

on direct appeal, and collateral review and placed them upon the altar of actual innocence. Yet, a

defendant may not simply offer his interpretation of the original proceedings in support of the

argument that “new facts” warrant reconsideration of the issue. Barrow, 195 Ill. 2d at 522, 749

N.E.2d at 903. For the foregoing reasons, we reject defendant’s claim of actual innocence.

       Alternatively, defendant contends that he demonstrated cause-and-prejudice for failing to

present the claims in his second postconviction petition. Although both requirements must be

met (Pitsonbarger, 205 Ill. 2d at 464, 793 N.E.2d at 624), our initial focus is upon cause; that is,

whether defendant has established that an objective factor, external to the defense, impeded his

efforts to raise the claim in an earlier proceeding. Pitsonbarger, 205 Ill. 2d at 460, 793 N.E.2d at

621-22. Considering first defendant’s perjury claim, as previously noted, the recantations of

Terrence Franks and Erica Wright were considered by the court and rejected by our order


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affirming the dismissal of defendant’s first successive postconviction petition. See People v.

Collier, No. 1-99-4212 (2001) (unpublished order under Supreme Court Rule 23). Similarly, the

seeds of Tyrone Freeman’s revelations were in early bloom as evidenced from his trial testimony

and sufficiently blossomed to warrant inclusion in defendant’s first pro se postconviction petition

filed during the pendency of defendant’s direct appeal. Finally, as regards to defendant’s claim

of ineffective assistance of counsel, the record clearly shows that defendant was well aware of

the purported significance of Preston Berry from the time of trial onward. Trial counsel’s failure

to secure the attendance of Berry at trial was among the claims raised in defendant’s first pro se

petition, and he has failed to provide a satisfactory explanation for failing to locate Berry and

secure his affidavit for some 17 years.

       We find that defendant’s failure to demonstrate cause alone provided a sufficient basis to

warrant the trial court’s denial of his second successive postconviction petition. Moreover, it is

abundantly clear that defendant has failed to satisfy the second requirement of prejudice. Despite

defendant’s proffer of recanted testimony, perjury and trial counsel’s ineffectiveness, defendant

has failed to demonstrate that his claims so infected the entire trial that his resulting conviction

violated the process. Pitsonbarger, 205 Ill. 2d at 464, 793 N.E.2d at 624. Res judicata and

forfeiture likewise bar further consideration of these claims.

                   2. Propriety of the State’s Participation in the Proceedings

       We next consider defendant’s claim that the circuit court’s reliance on the State’s input at

the first stage of his postconviction proceeding mandates reversal of the court’s summary

dismissal and a remand for further proceedings. The claim stems from the court’s interaction


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with the prosecutor upon receipt of our 2006 order remanding the matter for compliance with

Shellstrom. Defendant submits that the colloquy between the court and counsel violates the

requirement of People v. Gaultney, 174 Ill. 2d 410, 419-20, 675 N.E.2d 102, 107 (1996), that at

the first step of postconviction proceedings, the court must consider the defendant’s petition

without any input from the State. Although we share in the efficacy of Gaultney’s proscription,

the independent review it seeks to uphold concerns determinations of whether the petition is

frivolous or is patently without merit. See 725 ILCS 5/122-2.1(a)(2) (West 2006). We agree with

the State that this rule has no application where, as here, defendant’s successive petition had not

yet advanced to the first stage of postconviction proceedings. Consequently, because the court

had yet to docket the successive petition, it is axiomatic that there was no properly filed petition

for the court to consider. See LaPointe, 227 Ill. 2d at 43-44, 879 N.E.2d at 277-78.

       An identical claim was raised in the First District case of People v. Smith, 383 Ill. App.

3d 1078, 892 N.E.2d 55 (2008), where the input between the court and counsel likewise followed

remand for Shellstrom admonishments. In Smith, as here, the colloquy embraced the proper

manner of proceeding on defendant’s remanded pro se section 2-1401 petition for review. 735

ILCS 5/2-1401 (West 2004). Discussion did not focus on the merits of defendant’s claims, but

rather on the nature of the proceeding and the need to writ-in the defendant from the Department

of Corrections pursuant to Shellstrom’s requirements. In turn, defendant appeared and following

receipt of his admonishments, elected to have his section 2-1401 petition recharacterized as a

successive postconviction petition and was granted 60 days to file an amended petition.

Although there was additional interplay between the court and counsel in defendant’s absence on


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March 28, 2007, the colloquy again focused on determining the background and procedural

posture of the case.

       Thus, what transpired during several truncated exchanges lends no support to the claim

that the court improperly permitted input by the State in resolving a decisive issue in the

proceedings. Here, as in Smtih, the record fails to demonstrate that the State discussed with or

influenced the court in its decision to deny defendant leave to file his petition. Neither the merits

of the petition, nor the procedural hurdles were discussed. The colloquy between the court and

the assistant State’s Attorney was directed only to the procedural posture of the case and the

proper method of proceeding on remand. See Smith, 383 Ill. App. 3d at 1089-90, 892 N.E.2d at

66.

                                3. Court’s Imposition of Sanctions

       We next consider defendant’s claim that the trial court improperly imposed sanctions

against him upon a determination that his petitions were frivolous under section 22-105 of the

Code (735 ILCS 5/22-105 (West 2006)). The sanctions included an assessment of fees and costs

in the amount of $160 imposed on the instant petition, as well as on defendant’s first successive

petition summarily dismissed in 1999. Additionally, the court revoked 180 days of good time

premised upon the filing of a frivolous petition.

       We agree with defendant that the court did not have jurisdiction to enter the assessment

for fees and costs because the appeal from his 1999 petition had long been final. Additionally,

the order does not explain the basis for the $160 calculation, nor can we discern which portion

applies to the 1999 petition as distinguished from the instant matter.


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           Moreover, we find similarly disquieting that portion of the order revoking defendant’s

good-time credits. Although the court professed to act pursuant to section 3-6-3(d) of the

Unified Code of Corrections (730 ILCS 5/3-6-3(d) (West 2006)), that statute does not vest the

court with any authority to revoke good time. The procedure contemplated under the statute

provides that upon notification that a court has specifically found that a motion or other paper

filed by a prisoner is frivolous, the Department of Corrections is mandated to conduct a hearing

upon charges against the prisoner before the Prisoner Review Board to revoke up to 180 days of

good-conduct credit. For purposes of this subsection, “frivolous” is defined by five separate

criteria, none of which appears in the trial court’s order. 730 ILCS 5/3-6-3(d)(1)(A) through

(d)(1)(E) (West 2006). Obviously, the court exceeded its jurisdiction in its revocation of good-

time credits.

           Although defendant does not argue nor do we discern that statutory fees and costs could

not be imposed under the prevailing statutes, that is not the situation we are called upon to

address. Rather, because we find that the court acted beyond its jurisdiction and the order

likewise lacks specificity, we vacate the order imposing fees and costs and revoking good-time

credits.

                                     4. Correction of the Mittimus

           Defendant further maintains that the mittimus should be corrected to accurately state that

he was convicted of a single count of first degree murder. The State concurs in that request,

noting that this court may correct a mittimus and need not remand the matter to the trial court.

Accordingly, the mittimus should be corrected to reflect a single conviction of first degree


                                                   16
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murder as alleged in count I of the indictment.



                                         CONCLUSION

       Based upon the foregoing reasons, we affirm the order of the circuit court denying

defendant leave to file a second successive postconviction petition, we vacate the order assessing

fees and costs and revoking good time credits and correct the mittimus.

       Affirmed in part and vacated in part; mittimus corrected.

       FITZGERALD SMITH, P.J., with O'MARA FROSSARD, J., concur.




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             1-07-1014

                                  REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT
Please Use
Following                                   (Front Sheet to be Attached to Each Case)
Form:
                         THE PEOPLE OF THE STATE OF ILLINOIS,
Comple te
TITLE
                                              Respondent-Appellee,
of Case
                         v.
                         SHONGO COLLIER,
                                                          Petitioner-Appellant.




Docket No.
                                                                  Nos. 1-07-1014
COURT
                                                             Appellate Court of Illinois
                                                           First District, FIFTH Division

Opinion                                                        December 19, 2008
Filed                                                       (Give month, day and year)


                                 JUSTICE TOOMIN delivered the opinion of the court:
JUSTICES
                                 Fitzgerald Smith, P.J. with O’Mara Frossard, J.,                                             concur
                                                                                                                              [s]

                                                                                                                    dissent[s]


APPEAL from
the Circuit Ct. of                          Lower Court and T rial Judge(s) in form indicated in the margin:
Cook County,
Chancery Div.
                                                 The Honorable     Thomas R. Sumner, Judge Presiding.




                                       Indicate if attorney represents APPELLANTS or APPELLEE S and include
For
APPELLANTS,                                 attorneys of counsel. Indicate the word NONE if not represented.
John Doe, of
Chicago.                 Attorney for Petitioner-Appellant Shongo Collier.:          Patricia Unsinn, Deputy Defender
                                                                                     Ginger Leigh Odom
For                                                                                  Office of the State Appellate Defender
APPELLEES,
Smith and Smith                                                                      203 North LaSalle Street - 24th Floor
of Chicago,                                                                          Chicago, IL 60601
Joseph Brown,
(of Counsel)             Attorneys for Respondent-People of the State of Illinois:        Richard A. Devine
Also add
                                                                                 State’s Attorney
attorneys for                                                                    County of Cook
third-party                                                                      Room 309-Richard J. Daley Center,
appellants or                                                                    Chicago, IL 60602
appellees.
                         Of counsel:     James E. Fitzgerald, Eve Reilly, Louis A. Crisostomo, Assistant State’s Attorneys.



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