                            NO. 4-05-0593       Filed 8/9/06

                      IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   ) Appeal from
          Plaintiff-Appellee,          ) Circuit Court of
          v.                           ) County McLean
WILLIAM DUNCAN LAND,                   ) No. 90CF647
          Defendant-Appellant.         )
                                       ) Honorable
                                       ) Ronald C. Dozier,
                                       ) Judge Presiding.
_________________________________________________________________

          JUSTICE STEIGMANN delivered the opinion of the court:

          In June 2005, defendant, William Duncan Land, an

Illinois Department of Corrections inmate, filed a petition to

vacate judgment under section 2-1401 of the Code of Civil Proce-

dure (735 ILCS 5/2-1401 (West 2004)) and for habeas corpus

relief.   Later that month, the trial court sua sponte dismissed

defendant's petition, upon determining that (1) defendant's

sentence is not void and (2) defendant's claims had previously

been rejected on direct appeal and in petitions for postconvic-

tion relief.

          Defendant appeals, arguing that the trial court lacked

the authority to summarily dismiss his habeas corpus petition and
section 2-1401 petition.   We disagree and affirm.

                            I. BACKGROUND

          In July 1991, a jury convicted defendant of three

counts of aggravated criminal sexual assault (Ill. Rev. Stat.

1989, ch. 38, par. 12-14(b)(1)), for incidents involving his

daughter, C.L., who was then seven years old.    The trial court
later sentenced him to 20 years in prison on each count, with

those sentences to be served consecutively.     In March 1993, this

court affirmed defendant's convictions.     People v. Land, 241 Ill.

App. 3d 1066, 609 N.E.2d 1010 (1993).

          In April 1994, defendant pro se filed a petition for

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

through 122-8 (West 1992)).   The trial court later dismissed

defendant's petition, upon finding it to be frivolous and pa-

tently without merit (725 ILCS 5/122-2.1 (West 1994)), and in

March 1996, this court affirmed the dismissal (People v. Land,
No. 4-94-0980 (March 28, 1996) (unpublished order under Supreme

Court Rule 23)).

          In February 1998, defendant pro se filed a second

postconviction petition.   In that petition, defendant claimed

that his sentence is void because the trial court erroneously

imposed consecutive sentences under the belief that it was

required to do so under section 5-8-4(a) of the Unified Code of

Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-4(a) (now

730 ILCS 5/5-8-4(a) (West 1996))).     The trial court (1) found

that defendant had forfeited this claim by failing to raise it

either on direct appeal or in his first postconviction petition

and (2) dismissed defendant's petition as frivolous and patently

without merit (725 ILCS 5/122-2.1 (West 1996)).     Defendant

appealed, and this court affirmed the dismissal, upon concluding

that defendant's sentence was not void.     People v. Land, 304 Ill.
App. 3d 169, 173-74, 710 N.E.2d 471, 473-74 (1999).


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             In June 2005, defendant filed his petition for relief

from judgment and habeas corpus relief.     In the petition, defen-

dant argued that (1) his sentence is void, (2) this court's 1999

decision was erroneous, and (3) he is entitled to immediate

release from prison (based on what he claims his sentence should

have been, minus the good-time credit he accrued).

             Later in June 2005, the trial court entered a written

order sua sponte dismissing defendant's petition.     Specifically,

the court noted, in pertinent part, that (1) defendant's sentence

is not void because it falls within the permissible statutory

range and (2) defendant had the opportunity to raise this issue

on direct appeal and in two previous postconviction petitions.

             This appeal followed.

                             II. ANALYSIS

             Defendant urges this court to (1) reconsider its prior

holdings that trial courts have the authority to sua sponte
dismiss meritless section 2-1401 petitions and (2) decline to

follow the Fifth District's decision in People v. Tiller, 361

Ill. App. 3d 803, 805-06, 838 N.E.2d 969, 971-72 (2005), holding

that trial courts may sua sponte dismiss meritless habeas corpus
petitions.    We adhere to our prior holdings and agree with the

Fifth District.

          In Mason v. Snyder, 332 Ill. App. 3d 834, 842, 774

N.E.2d 457, 464 (2002), this court held that a trial court has

the authority to sua sponte dismiss a mandamus petition, upon

finding it to be frivolous and patently without merit.    In People


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v. Bramlett, 347 Ill. App. 3d 468, 472-73, 806 N.E.2d 1251, 1254-

55 (2004), we held that trial courts also have authority to

summarily dismiss frivolous section 2-1401 petitions, based on

the same rationale.   In People v. Ryburn, 362 Ill. App. 3d 870,

876, 841 N.E.2d 1013, 1017-18 (2005), we were asked to reconsider

our holding in Bramlett, and we declined to alter our position.



          In Tiller, 361 Ill. App. 3d at 806, 838 N.E.2d at 972,

the Fifth District held that trial courts have authority to sua

sponte dismiss meritless habeas corpus petitions.     In so holding,

the Fifth District noted that, like mandamus cases, habeas corpus

relief is a very limited and specific form of relief.    The court

upheld sua sponte dismissal where the defendant's petition for

habeas corpus relief challenged the nature of his sentences and

failed to raise any claim that he was otherwise entitled to be

discharged from prison.   Tiller, 361 Ill. App. 3d at 806, 838

N.E.2d at 972.

          We acknowledge that the Second and Third Districts, as

well as some divisions of the First District, have disagreed with

these holdings.   Our sister districts in disagreement have cited

the following as their primary rationale:    (1) concern for the

petitioner's right to amend his pleading and (2) that it is up to

the legislature to provide trial courts with such authority.     See

People v. Coleman, 358 Ill. App. 3d 1063, 1069-70, 835 N.E.2d

387, 392-93 (2005); People v. Winfrey, 347 Ill. App. 3d 987, 989-
90, 808 N.E.2d 589, 591-92 (2004).     We are not persuaded that by


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recognizing the trial court's inherent authority to sua sponte

dismiss patently frivolous mandamus, habeas corpus, and section

2-1401 petitions, we interfere with either the rights of peti-

tioners or the legislature.

          By holding that trial courts have the inherent author-

ity to sua sponte dismiss meritless mandamus, habeas corpus, and

section 2-1401 petitions, we in no way suggest that trial courts

should cease to exercise their discretion in granting petitioners

leave to amend their petitions.    Instead, we simply acknowledge

(1) the trial court's capacity to recognize a frivolous filing

and (2) its authority to dispose of such a petition without

further expending judicial resources.   In Owens v. Snyder, 349
Ill. App. 3d 35, 45, 811 N.E.2d 738, 747 (2004), the First

District recognized that when a petition is completely devoid of

merit, no reason exists to require the trial court to do more.

In addressing a petitioner's meritless mandamus petition, Justice

Wolfson wrote as follows:

          "There was nothing plaintiff could do to make

          it any better.    He simply was off the track

          and could not get back on.    We do not believe

          the legislature intended to require judges

          and clerks to jump through useless hoops

          aimed toward impossible goals.    ***   This

          judge apparently saw the plaintiff's com-

          plaint for what it was--a totally deficient

          claim for mandamus relief."    Owens, 349 Ill.


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            App. 3d at 45, 811 N.E.2d at 747.

Presiding Justice O'Malley picked up on this theme in her special

concurrence in People v. Anderson, 352 Ill. App. 3d 934, 952, 817

N.E.2d 1000, 1015 (2004) (O'Malley, P.J., specially concurring),

when she wrote:      "If the appellate court, based on a cold record

and absent input from defendant, could clearly see and appreciate

the fatal flaws in defendant's petition, I fail to see why the

circuit court should not be trusted to do the same."

            We recognize and agree that trial courts should not sua

sponte dismiss a mandamus, habeas corpus, or section 2-1401
petition merely because a flaw exists in the pleadings.       We

further do not suggest that courts should exercise their author-

ity to sua sponte dismiss patently frivolous petitions lightly.

Thus, we initially admonished trial courts in Mason to clearly

set forth their analysis regarding the deficiencies of a mandamus

petition.   Mason, 332 Ill. App. 3d at 843, 774 N.E.2d at 464.

The First District echoed these concerns in Owens, when it wrote

as follows:

                    "We hold a trial judge has the inherent

            authority to dismiss a patently frivolous

            mandamus complaint before service on the
            defendant is issued.    But we urge trial

            judges to use this power with caution, espe-

            cially in cases related to criminal proceed-

            ings.    We also suggest trial judges give

            reasons for early dismissals, for the benefit


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            of the losing litigant and for those called

            on to review trial court orders."   Owens, 349

            Ill. App. 3d at 45, 811 N.E.2d at 747.

            The holdings of the Second and Third Districts suggest

that the hands of the trial courts are tied until the legislature

provides a mechanism for disposing of patently frivolous manda-

mus, habeas corpus, and section 2-1401 petitions.     While we would

welcome statutory provisions that explicitly provide for the

prompt dismissal of such petitions, we fail to see why the

resources of the courts and the named respondents should be

expended when a petition is hopelessly flawed and the trial court

knows it.   Allowing a case to proceed when everyone involved

knows what the ultimate result will be elevates form over sub-

stance and does so to the detriment of everyone involved--except

for the petitioner, who in many cases is the only participant in

this process with an unlimited amount of time on his hands.

            We note that section 3-6-3(d) of the Unified Code of

Corrections (730 ILCS 5/3-6-3(d) (West 2004)) provides for

revocation of an inmate's good-time credit as a penalty for the

filing of frivolous lawsuits.    Although a "lawsuit" under section

3-6-3(d) includes a postconviction petition and a habeas corpus
petition, section 2-1401 petitions are not currently included.

There thus does not exist any statutory deterrent for the filing

of frivolous section 2-1401 petitions by an inmate.    If the trial

court lacks the inherent authority to dismiss patently frivolous

section 2-1401 petitions, there is nothing to stop a vexatious


                                - 7 -
inmate--or some 40,000 of them--from filing multiple section 2-

1401 petitions.   In our view, the courts and the respondents

should not be required to expend their limited resources respond-

ing to such petitions because the legislature has not expressly

provided a mechanism for disposing of them.

            In sum, we (1) adhere to our prior holdings in Mason,

Bramlett, and Ryburn; (2) hold that the trial court had the

inherent authority to sua sponte dismiss defendant's patently

frivolous habeas corpus petition; and (3) conclude that the court

did not err by dismissing defendant's combination habeas corpus-
section 2-1401 petition.

                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.

            Affirmed.

            McCULLOUGH and KNECHT, JJ., concur.




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