                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Macri, 2011 IL App (2d) 100325




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    GENO F. MACRI, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-10-0325


Filed                      December 14, 2011
Rehearing denied           January 18, 2012
Held                       Where defendant filed a pro se postconviction petition after his
(Note: This syllabus       convictions for first-degree murder, aggravated criminal sexual assault
constitutes no part of     and unlawful possession of a stolen motor vehicle were affirmed on direct
the opinion of the court   appeal, and almost eight years later he voluntarily dismissed his petition,
but has been prepared      but then he filed a “Motion to Reinstate Post-Conviction Petition” and a
by the Reporter of         “Supplemental Petition for Post-Conviction Relief,” the trial court’s
Decisions for the          denial of the motion was upheld over defendant’s contention that the
convenience of the         “Supplemental Petition for Post-Conviction Relief” was a new original
reader.)
                           petition that the trial court should have ruled on within 90 days, since a
                           petition refiled more than one year after its withdrawal and beyond the
                           limitations period is not entitled to automatic reinstatement and treatment
                           as a new original petition.


Decision Under             Appeal from the Circuit Court of Du Page County, No. 93-CF-1879; the
Review                     Hon. Perry R. Thompson, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Thomas A. Lilien and Jaime L. Montgomery, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Robert B. Berlin, State’s Attorney, of Wheaton (Stephen E. Norris, of
                           State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                           People.


Panel                      JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
                           Justices Bowman and Hudson concurred in the judgment and opinion.




                                              OPINION

¶1           At issue in this appeal is whether, when a defendant withdraws a postconviction petition
        and files a subsequent one more than one year later and beyond the limitations period, the
        refiled petition is to be treated as a new original petition where the trial court denies the
        defendant’s motion to refile or reinstate the petition. We deem that it is not. Thus, we affirm.
¶2           The facts relevant to resolving this appeal are as follows. Following a bench trial,
        defendant, Geno F. Macri, was convicted of first-degree murder (720 ILCS 5/9-1(a)(1) (West
        1994)), aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 1994)), and
        unlawful possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1) (West 1994)).
        Defendant was sentenced to death for first-degree murder, which sentence was later
        commuted to life in prison, and concurrent terms of 60 years for aggravated criminal sexual
        assault and 7 years for possession of a stolen motor vehicle. Defendant appealed directly to
        the Illinois Supreme Court, which affirmed defendant’s conviction and sentence. People v.
        Macri, 185 Ill. 2d 1 (1998).
¶3           On September 18, 1996, defendant filed a pro se postconviction petition. While that
        petition was pending, the United States Supreme Court denied his petition for certiorari.
        Macri v. Illinois, 528 U.S. 829 (1999). On April 26, 2004, defendant voluntarily withdrew
        his petition. Almost six years later, on February 2, 2010, defendant filed a “Motion to
        Reinstate Post-Conviction Petition” and a “Supplemental Petition for Post-Conviction
        Relief.” Nowhere in this petition did defendant profess that he was actually innocent. The
        trial court denied the motion on March 4, 2010, and defendant timely appealed.
¶4           On appeal, defendant contends that his “Supplemental Petition for Post-Conviction
        Relief” was a “new original petition,” and, because the trial court failed to rule on the merits
        of the petition within 90 days, his “new original petition” must be remanded for stage-two
        proceedings under the Post-Conviction Hearing Act (Act) (see 725 ILCS 5/122-2.1(b) (West
        2010)). Because this issue concerns a question of law, our review is de novo. See People v.
        English, 381 Ill. App. 3d 906, 908 (2008).

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¶5          Section 122-5 of the Act (725 ILCS 5/122-5 (West 2010)) addresses withdrawing and
       refiling a petition. Specifically, it provides, in relevant part:
            “The court may in its discretion grant leave, at any stage of the proceeding prior to entry
            of judgment, to withdraw the petition. 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 provided in civil
            cases.” 725 ILCS 5/122-5 (West 2010).
¶6          In English, the court construed section 122-5 of the Act. There, the defendant filed his
       first petition in 1999, while his direct appeal was pending. English, 381 Ill. App. 3d at 907.
       On August 6, 2003, that petition was voluntarily withdrawn. Id. On August 5, 2004, the
       defendant moved to reinstate and amend his original petition. Id. The trial court denied the
       motion, and the defendant appealed. Id.
¶7          On appeal, the court construed section 122-5 of the Act as meaning that, if a defendant
       moves to refile or reinstate a petition within one year after it is withdrawn, the trial court
       must grant the motion. Id. at 910 (citing 735 ILCS 5/13-217 (West 1994)). Thus, because the
       defendant’s motion to reinstate was filed within a year after his petition was withdrawn, the
       defendant’s petition should have been automatically reinstated. Id. Given the facts, the court
       had no need to consider whether a petition filed beyond a year but within the limitations
       period delineated in section 122-1(c) of the Act (725 ILCS 5/122-1(c) (West 2010)) must
       likewise be automatically reinstated.
¶8          Here, defendant did not move to reinstate his petition within one year after it was
       voluntarily withdrawn. Rather, defendant waited six years after the petition was withdrawn,
       which was well outside of the limitations period delineated in section 122-1(c) of the Act,
       before seeking to refile it. Thus, even assuming that a petition sought to be refiled beyond
       a year but within the limitations period must be automatically reinstated, defendant was not
       entitled to have his petition automatically reinstated and treated as an original petition.
       English, 381 Ill. App. 3d at 910.
¶9          In reaching this conclusion, we note that defendant makes no argument that the trial court
       abused its discretion in denying his motion. See People v. Wright, 149 Ill. 2d 36, 54 (1992)
       (recognizing that section 122-5 of the Act grants the trial court a great deal of discretion).
       Rather, defendant argues only that his “Supplemental Petition for Post-Conviction Relief”
       must be treated as an original petition. Under defendant’s view, once a defendant has
       voluntarily withdrawn a petition, that defendant may file a subsequent petition at any time
       without leave of the court and, when that petition is filed, it automatically is treated as an
       original petition. This simply is not so. Only if the trial court allowed defendant to reinstate
       his petition would his petition have been treated as an original petition.
¶ 10        For these reasons, the judgment of the circuit court of Du Page County is affirmed.

¶ 11       Affirmed.



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