                             No. 3--04-0827
                        Filed December 6, 2006.

                                IN THE

                    APPELLATE COURT OF ILLINOIS

                            THIRD DISTRICT

                              A.D., 2006


THE PEOPLE OF THE STATE OF      )     Appeal from the Circuit Court
ILLINOIS,                       )     of the 12th Judicial Circuit,
                                )     Will County, Illinois
     Plaintiff-Appellee,        )
                                )
           v.                   )     No.    99--CF--862
                                )
GLEN R. HIGGINBOTHAM,           )
                                )     Honorable Gerald R. Kinney,
     Defendant-Appellant.       )     Judge, Presiding.


PRESIDING JUSTICE SCHMIDT delivered the opinion of the court:



     Defendant, Glen Higginbotham, was convicted of reckless

homicide as a result of a traffic accident which occurred on May
4, 1999.   While incarcerated, defendant filed a document entitled

"Petition for Habeas Corpus."    The circuit court of Will County

dismissed defendant's petition.     Defendant appeals, claiming that

the trial court erred by treating his petition as if it were

filed under the Post-Conviction Hearing Act (725 ILCS 5/122--1 et

seq. (West 2002)) and failing to acknowledge that his petition

for habeas corpus was civil in nature and, therefore, controlled

by the Illinois Code of Civil Procedure (735 ILCS 5/1--101 et
seq. (West 2002)).

                            BACKGROUND

     While on probation following convictions of theft,

possessing a stolen motor vehicle, and aggravated battery,

defendant was involved in a two-car accident.    This accident

resulted in the death of 10-year-old Candace Graham.    Sometime

after 11 p.m. on May 4, 1999, Constance Graham took her daughter,

Candace, to the local White Hen Pantry in Lockport, Illinois.

While on their way home from the White Hen Pantry, the Graham

vehicle collided with a vehicle driven by defendant.

     Evidence was admitted at trial showing that both Constance

Graham and defendant were driving drunk that night.    Constance

Graham's blood-alcohol level was .197.   She had been drinking

beer and tequila since 4:30 in the afternoon until the time of

the accident.   Blood drawn from defendant at 1:32 a.m. on May 5

(approximately 1½ hours after the accident), indicated that his

blood alcohol level was .181.   A forensic scientist with the

Illinois State Police who specializes in toxicology further

testified that her analysis of defendant's blood indicated the

presence of cocaine.   She could not tell how long the cocaine had

been in his system but testified that, generally, in order for

cocaine to be found in a person's system, it had to have been

ingested within eight hours of the blood draw.

     Michael Homberg of the Will County sheriff's police

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testified that on the night of the accident, he was traveling

southbound on State Street in an unincorporated area of Lockport

Township at approximately 11:52 p.m.    He witnessed a red vehicle

traveling northbound on State Street at a high rate of speed.

His radar indicated that the red vehicle was traveling at 81

miles per hour in an area where the posted speed limit was 40

miles per hour.    Deputy Homberg turned around to pursue the

vehicle but lost sight of it.    When he saw the red vehicle next,

it was at the scene of this accident, 1½ miles from where he

first witnessed it speeding.    Less than two minutes had elapsed

from when he lost sight of it.

     Constance Graham testified that while heading home from the

White Hen Pantry, she was attempting to turn left onto Twelfth

Street from State Street when the accident happened.    She noticed

a car approaching on State Street approximately 1½ blocks away

and she assumed she had time to turn because the speed limit was

30 miles per hour.    Before she could complete her turn, the

impact occurred.    Deputy Charles Albin of the Will County

sheriff's police, traffic division, testified at trial after

being accepted as an expert in the area of accident

reconstruction.    He was involved in the investigation of this

crash.   When arriving at the crash scene, he first observed that

there was slight rain, followed by periods of heavy rain.     Deputy

Albin testified that there were no stop signs or stoplights at

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the intersection where the accident happened and that cars

turning onto Twelfth Street from State Street were to yield to

oncoming State Street traffic.

     Deputy Michael Barton of the Will County sheriff's

department, traffic accident investigation division, also

testified.   He, too, was admitted as an expert witness in the

area of accident reconstruction.       Based on information he

retrieved from the crash site, his opinion was that the impact

speed of Graham's car was 10 miles per hour, plus or minus 3

miles per hour.   Furthermore, he testified that the impact speed

of defendant's car was 68 miles per hour, plus or minus 3 miles

per hour.    He noted that giving the defendant the benefit of the

doubt when calculating the speed of defendant's car before the

collision, defendant's vehicle was traveling at about 78 miles

per hour before defendant applied his brakes.      The calculations

were based upon information given to Barton indicating that the

road was dry at the time of the collision and that it did not

start raining until after the collision.

     Over defense objection, the court agreed with a prosecution

request to give the jury a pattern instruction on proximate

cause.   During its deliberations, the jury sent two notes to the

trial judge.   The first question asked to be allowed to view a

portion of a videotape taken at the scene of the accident.       With

agreement of the parties, the trial judge granted this request.

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Two hours later, the jury asked whether the phrase "caused the

death" meant "sole responsibility or partial."   Over defense

objection, the trial judge allowed the prosecution's request to

read the jury a modified version of Illinois Pattern Jury

Instructions, Criminal, No. 7.15 (3d ed. 1992), stating that the

prosecution had to prove that the defendant's acts were "a

contributing cause" of the death, but that it was not necessary

to find his acts "were the sole and immediate cause of death."

The jury later found the defendant guilty of reckless homicide.

     Prior to the reckless homicide trial, the State filed

petitions to revoke defendant's probation for his prior

convictions.   The State's petitions to revoke were granted and

defendant was sentenced to concurrent sentences of seven, five,

and seven years, respectively, for convictions from one count of

theft and two counts of possessing a stolen motor vehicle.

Defendant also received a seven-year sentence for his aggravated

battery conviction, which the trial court ordered to be served

consecutively to the three concurrent sentences.

     Thereafter, defendant was sentenced for this reckless

homicide conviction.   The trial court ordered the defendant to

serve a seven-year term of imprisonment to run consecutively to

the prior sentences due to the "serious nature of the offense"

and because the defendant was on probation at the time of the

offense.

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     On direct appeal, this court in People v. Higginbotham, Nos.

3--00--0372, 3--00--0373, 3--00--0374, 3--00--0375, 3--00--0376,

(May 29, 2002), reversed the trial court's imposition of the

consecutive sentence for defendant's aggravated battery

conviction, but upheld the trial court's order imposing a

consecutive seven-year sentence for defendant's reckless homicide

conviction.

     While serving the aforementioned sentences, defendant filed

a pro se pleading with the trial court.    He titled this pleading

"Petition for Habeas Corpus."    The trial court recharacterized

defendant's pleading as a postconviction petition, found it

frivolous and patently without merit, and then dismissed it.

Defendant appeals.

                               ANALYSIS

     Where there is no dispute as to the facts of a case and the

issued raised on appeal is purely one of law, such as the case

before us, our review is de novo.     People v. Daniels, 187 Ill. 2d

301, 718 N.E.2d 149 (1999); People v. Coleman, 307 Ill. App. 3d

930, 718 N.E.2d 1074 (1999).

     Defendant acknowledges that Illinois law is well established

that a trial court has the authority to reclassify a pleading

titled petition for habeas corpus relief as a petition for relief

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

(West 2002)).   See People ex rel. Haven v. Macieiski, 38 Ill. 2d

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396, 231 N.E.2d 433 (1967); People ex rel. Lewis v. Frye, 42 Ill.

2d 58, 245 N.E.2d 483 (1969).   Defendant argues, however, that

when exercising this authority and recharacterizing such a

document, a trial judge must "(1) notify the pro se litigant that

the court intends to recharacterize the pleading, (2) warn the

litigant that this recharacterization means that any subsequent

postconviction petition will be subject to the restrictions on

successive postconviction petitions, and (3) provide the litigant

an opportunity to withdraw the pleading or amend it so that it

contains all the claims appropriate to a postconviction petition

that the litigant believes he or she has."    People v. Shellstrom,

216 Ill. 2d 45, 57, 833 N.E.2d 863, 870 (2005).   Defendant

maintains that the trial court erred in dismissing his petition

for he was never notified of the court's intention to

recharacterize it, warned of the consequences pertaining to

subsequent postconviction petitions, or provided an opportunity

to withdraw or amend the pleading.   Defendant claims that such

error mandates reversal pursuant to Shellstrom.

     The State argues that the defendant misreads Shellstrom.

The State notes that Shellstrom begins by reaffirming well-

settled law holding that when a pro se pleading alleges a

deprivation of rights cognizable in a postconviction petition,

the trial judge may treat the pleading as a postconviction

petition.   Shellstrom, 216 Ill. 2d at 53.   The State continues

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that Shellstrom does not hold, as defendant argues, that a trial

court commits reversible error when it recharacterizes a pro se

pleading as a postconviction petition then dismisses it as

patently without merit without first notifying the pro se

litigant of the recharacterization.   The State argues that

Shellstrom merely holds that if the trial court fails to give the

Shellstrom notifications to the pro se litigant prior to

recharacterization, then   the recharacterized pleading cannot be

considered to have become a postconviction petition for purposes

of applying restrictions on successive postconviction petitions

to later pleadings.   We agree with the State.

      The Shellstrom court, after announcing that "in the future

trial courts must provide the aforementioned notifications,

stated that "[i]f the [trial] court fails to do so, the pleading

cannot be considered to have become a postconviction petition for

purposes of applying to later pleadings the Act's restrictions on

successive postconviction petitions."   Shellstrom, 216 Ill. 2d at

57.   The Shellstrom court did not say that failing to provide a

pro se litigant with notice of the court's intent to

recharacterize a pleading as a postconviction petition mandated

reversal.   Again, as both sides acknowledge, the Shellstrom court

"reaffirm[ed] that, where a pro se pleading alleges a deprivation

of rights cognizable in a postconviction proceeding, a trial

court may treat the pleading as a postconviction petition, even

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where the pleading is labeled differently."    Shellstrom, 216 Ill.

2d at 52-53.

     Defendant makes no argument that his pleading stated the

gist of a constitutional claim, only that it was error to

reclassify it and dismiss it without giving him the Shellstrom

notice and warning.   We hold that the trial court did have the

authority to recharacterize defendant's pleading and that it was

not reversible error to dismiss it.    We find that since the trial

court did not notify as required by Shellstrom, the pleadings

cannot be considered to have become a postconviction petition for

purposes of applying the restrictions on successive

postconviction petitions contained in the Post-Conviction Hearing

Act to any later pleadings.    725 ILCS 5/122--1 et seq. (West

2002).

                              CONCLUSION

     For the foregoing reasons, the judgment of the circuit court

of Will County is affirmed.

     Affirmed.

     CARTER and O'BRIEN, JJ., concur.




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