                                     2019 IL App (1st) 161428
                                           No. 1-16-1428
                                        September 23, 2019


                                                                                      First Division

______________________________________________________________________________
                                              IN THE
                                 APPELLATE COURT OF ILLINOIS
                                         FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,                          )   Appeal from the
                                                              )   Circuit Court of
          Plaintiff-Appellee,                                 )   Cook County.
                                                              )
     v.                                                       )   No. 99 CR 10066
                                                              )
RORY COOK,                                                    )   Honorable
                                                              )   Neera L. Walsh,
          Defendant-Appellant.                                )   Judge, presiding.



          JUSTICE WALKER delivered the judgment of the court, with opinion.
          Presiding Justice Mikva and Justice Pierce concurred in the judgment and opinion.

                                             OPINION


¶1        Following a 2000 jury trial, defendant, Rory Cook, was convicted of first degree murder

and sentenced to 30 years’ imprisonment. We affirmed on direct appeal. People v. Cook, 352 Ill.

App. 3d 108 (2004). We affirmed the dismissal of his 2005 postconviction petition and the denial

of leave to file a successive postconviction petition in 2012. People v. Cook, 2013 IL App (1st)

111551-U; People v. Cook, 2015 IL App (1st) 123236-U. We also affirmed the denial of

defendant’s 2013 pro se “Motion for Prosecutorial Misconduct,” denial of his 2014 mandamus
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petition, denial of his 2015 motion for forensic testing, and dismissal of his 2015 petition for

relief from judgment. 1

¶2     Defendant now appeals from the circuit court’s disposition of his pro se “Motion for New

Trial for Newly Discovered Evidence, State’s Miscarriage of Justice for Witholding [sic]

Evidence in Defendants [sic] Judicial Proceedings.” Defendant’s contention is that the court

erred in recharacterizing his motion as a successive postconviction petition and denying leave to

file it without first notifying him and giving him an opportunity to withdraw or amend it. For the

reasons stated below, we vacate the denial of leave to file and remand for the requisite notice and

opportunity to withdraw or amend the motion.

¶3                                       I. BACKGROUND

¶4     Defendant filed his “Motion for New Trial for Newly Discovered Evidence, State’s

Miscarriage of Justice for Witholding [sic] Evidence in Defendants [sic] Judicial Proceedings”

on December 31, 2015. He did not name or cite any statute as a basis for the filing. In the

motion, defendant claimed newly discovered evidence showed he was not proved guilty beyond

a reasonable doubt, he was actually innocent, and he was wrongfully convicted. Defendant

claimed he was denied a fair trial and due process of law because the State withheld evidence

from the jury and made prejudicial, inflammatory, and erroneous statements in closing argument,

and the trial court erred in denying his motion to suppress. Defendant did not support the motion

with attachments.

¶5     On April 1, 2016, the circuit court issued an order finding that defendant’s filing of

December 31, 2015, asserted constitutional claims as a collateral attack on his conviction and

       1
        Defendant has two other pending appeals proceeding separately from this appeal (case Nos. 1-
17-3032 and 1-18-1105).

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characterized the filing as a successive postconviction petition. In the same order, the court

denied leave to file the petition, finding defendant’s claims barred by waiver and res judicata and

he did not state the requisite cause and prejudice for a successive postconviction petition.

¶6                                        II. ANALYSIS

¶7     On appeal, defendant’s sole contention is that the court erred by recharacterizing his

pro se “pleading” as a successive postconviction petition without notice and an opportunity to

amend or withdraw the “pleading,” as required by People v. Shellstrom, 216 Ill. 2d 45 (2005),

and People v. Pearson, 216 Ill. 2d 58 (2005). The State does not dispute that the court

characterized defendant’s filing as a successive postconviction petition without providing said

notice and opportunity. It contends, however, that the court was not required to do so because

defendant’s filing was not a pleading commencing an action cognizable under Illinois law. See

id. at 68 (holding the three-step Shellstrom notice procedure applies to “recharacterizing as a

successive postconviction petition a pleading that a pro se litigant has labeled as a different

action cognizable under Illinois law” (emphases added)).

¶8     The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(a)(1) (West 2016)) allows a

defendant to file a petition claiming that “in the proceedings which resulted in his or her

conviction there was a substantial denial of his or her rights under the Constitution of the United

States or of the State of Illinois or both.” Generally, a defendant may file only one petition under

the Act without leave of court, and claims not raised in an initial petition as amended are waived.

Id. §§ 122-1(f), 122-3. Leave to file a successive petition is granted if the defendant can show

cause for not raising the new claim in an earlier proceeding and prejudice—a deprivation of due

process—from not raising it earlier. Id. § 122-1(f). Thus, the requirements for filing a successive



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postconviction petition are higher than those for an initial postconviction petition. See

Shellstrom, 216 Ill. 2d at 55-56 (cause-and-prejudice test is “not easy to overcome”); Pearson,

216 Ill. 2d at 68 (“rigorous standards of a successive postconviction petition”).

¶9     It is well settled that the circuit court can recharacterize a pro se pleading alleging a

deprivation of rights cognizable in a postconviction proceeding but not labeled a postconviction

petition, even one clearly labeled as something else. Shellstrom, 216 Ill. 2d at 51-53; Pearson,

216 Ill. 2d at 66-67.

¶ 10   However, the Shellstrom court warned that, if the circuit court “could summarily

recharacterize as a first postconviction petition a pro se litigant’s pleading that was labeled

differently” without an opportunity for the litigant to respond,

       “the pleading that was transformed into the litigant’s first postconviction petition would

       present only those arguments that the litigant had chosen to include before realizing that

       he was, in effect, filing a postconviction petition. Any additional arguments that the

       litigant might have included in a first postconviction petition would be barred from

       successive petitions unless the litigant could demonstrate cause for failing to bring them

       and prejudice resulting from that failure.” (Emphasis in original.) Shellstrom, 216 Ill. 2d

       at 56.

The Shellstrom court therefore held that:

       “when a circuit court is recharacterizing as a first postconviction petition a pleading that a

       pro se litigant has labeled as a different action cognizable under Illinois law, the circuit

       court 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


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       postconviction petition will be subject to the restrictions on successive postconviction

       petitions, and (3) provide the litigant an opportunity to withdraw the pleading or to

       amend it so that it contains all the claims appropriate to a postconviction petition that the

       litigant believes he or she has. If the 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.” (Emphases

       added.) Id. at 57.

¶ 11   The Shellstrom defendant had not previously filed a petition under the Act before filing a

pro se “Motion to Reduce Sentence, Alternatively, Petition for Writ of Mandamus to Order Strict

Compliance with Terms of Guilty Plea.” The circuit court recharacterized the pleading as a

postconviction petition without informing the defendant and summarily dismissed it. Id. at 57-

58. Because the Shellstrom defendant was not given an opportunity to withdraw or amend his

pleading to include whatever additional postconviction claims he thought fit, the supreme court

vacated the summary dismissal and remanded for the circuit court to give the defendant that

opportunity. Id.

¶ 12   In Pearson, filed the same day as Shellstrom, the supreme court held that the three-step

Shellstrom procedure applies to “recharacterizing as a successive postconviction petition a

pleading that a pro se litigant has labeled as a different action cognizable under Illinois law.”

(Emphases added.) Pearson, 216 Ill. 2d at 68. Because the circuit court in Pearson neither

notified the defendant that recharacterizing his section 2-1401 petition (735 ILCS 5/2-1401

(West 2000)) as a successive postconviction petition would require it to satisfy the requirements




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of a successive postconviction petition, nor gave the defendant the opportunity to withdraw or

amend it, the supreme court remanded for the circuit court to do so. Pearson, 216 Ill. 2d at 69.

¶ 13   Thus, as the State argues here, Shellstrom and Pearson include a proviso that the

recharacterized pro se filing was a pleading stating an action cognizable under Illinois law. The

State argues the three-step Shellstrom/Pearson procedure was therefore not required for

recharacterization of defendant’s filing because his motion for a new trial was not a pleading

cognizable under Illinois law, such as the mandamus pleading at issue in Shellstrom and the

section 2-1401 pleading in Pearson. It asserts defendant’s 2015 pro se motion for a new trial did

not set forth a cognizable claim at all, as it was untimely filed years after the 2000 trial and the

trial court had no jurisdiction to consider it. See 725 ILCS 5/116-1(b) (West 2016) (motion for a

new trial must be filed within 30 days following the entry of a finding or the return of a verdict).

¶ 14   However, since Shellstrom and Pearson, our supreme court has decided People v.

Swamynathan, 236 Ill. 2d 103, 106 (2010), in which the circuit court recharacterized a

defendant’s untimely pro se motion to withdraw his guilty plea and vacate his sentence as a

postconviction petition. The circuit court provided the defendant the Shellstrom admonishments,

including the opportunity to withdraw or amend his filing, but the final admonishment was not

given until months after the first. Id. at 107-10. When the circuit court then summarily dismissed

the recharacterized petition, the defendant contended on appeal that his petition was improperly

summarily dismissed more than 90 days after its filing and docketing in violation of the Act. Id.

at 110-11. The question before the supreme court was when did the 90-day time period start to

run: at the time the initial Shellstrom admonishment was given or at the time Shellstrom was




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fully complied with months later. Id. The court determined the defendant’s motion became a

postconviction petition only when defendant received the full Shellstrom admonitions. Id. at 113.

¶ 15    The Swamynathan court stated that, “[i]f a trial court determines that recharacterization is

appropriate, the court must take certain steps to insure that the defendant is admonished of the

consequences of recharacterization” and then recited the Shellstrom procedure. Id. at 112 (citing

Shellstrom, 216 Ill. 2d at 57). It analyzed the Act in light of Shellstrom and concluded “that the

Act’s 90-day rule could not apply to a recharacterized petition until the defendant was fully

admonished under Shellstrom and recharacterization was fully completed.” Id. at 113. It found

“that any review of a recharacterized petition prior to full Shellstrom admonishments would be

futile, as it would require the review of claims that are likely to be altered” pursuant to the

opportunity to withdraw or amend. Id. at 115.

¶ 16    As in the instant case, where defendant styled his filing a motion for a new trial and

sought a new trial in his prayer for relief, the filing at issue in Swamynathan was a motion

usually filed in the original criminal proceedings but instead untimely filed well after the trial

court lost jurisdiction over the original conviction 30 days thereafter. See 725 ILCS 5/116-1(b)

(West 2016); Ill. S. Ct. R. 604(d) (eff. July 1, 2017). In Swamynathan, our supreme court ruled

that Shellstrom applied to the untimely postplea motion at issue despite it not being a pleading

commencing a cognizable action other than a postconviction petition. We conclude that the

supreme court in Swamynathan ruled that Shellstrom admonishments always follow a

recharacterization, not just when the cognizable-action proviso applies. 2



        2
         This does not include the later-recognized exception that the circuit court does not err when it
does not provide Shellstrom recharacterization admonishments if it appoints counsel upon the
recharacterized petition rather than summarily dismissing it. People v. Stoffel, 239 Ill. 2d 314, 328 (2010).

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¶ 17   This conclusion is consistent with the overall opinions in Shellstrom and Pearson. Both

cases support the circuit court’s broad authority to recharacterize filings not citing the Act as

petitions under the Act if they raise cognizable claims.

¶ 18   We note that the Second District of this court, in People v. Corredor, 399 Ill. App. 3d

804, 808 (2010), was “not persuaded that the supreme court intended the rule in Shellstrom to be

limited to filings over which the trial court has jurisdiction or, for that matter, ones that are

pleadings initiating actions.” It remarked that the cognizable-action requirement would unduly

limit the remedy for the problem recognized in Shellstrom—accidentally losing the right to file

an initial petition—because the “risk of accidental loss of claims is likely at its highest when a

defendant has filed something that he or she thinks of as a mere motion, for instance, a motion

for reduction of sentence that slightly misses the filing deadline.” Id.

¶ 19   The Corredor court found support for its stance in Swamynathan, where the

recharacterized filing was a defendant’s untimely pro se motion to withdraw his guilty plea and

vacate his sentence. Corredor explained,

       “Although the trial court would have lacked jurisdiction over this filing as a motion and

       although the defendant did not label the filing as a pleading initiating an action, the

       supreme court nevertheless cited Shellstrom for the proposition that ‘[i]f a trial court

       determines that recharacterization is appropriate, the court must take certain steps [(the

       Shellstrom admonitions)] to insure that the defendant is admonished of the consequences

       of recharacterization.’ [Citation.] The supreme court did not suggest that the admonitions

       were unneeded given the nature of the defendant’s filing. Admittedly, the State did not

       raise the applicability of Shellstrom. Nevertheless, for the supreme court to say in that



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       context that recharacterization requires Shellstrom admonitions does suggest that the

       court did not intend to limit the rule to recharacterization of filings that, as initial

       pleadings, vest the trial court with jurisdiction.” Id. at 808-09 (quoting Swamynathan, 236

       Ill. 2d at 112).

¶ 20   Pursuant to Swamynathan and Corredor, we find that the circuit court erred by not giving

the defendant the three-part Shellstrom admonishments upon recharacterizing his pro se motion

as a successive postconviction petition and denying leave to file it as a successive postconviction

petition. We remand for further proceedings consistent with this opinion.

¶ 21                                   III. CONCLUSION

¶ 22   Defendant was entitled to the Shellstrom admonitions prior to recharacterization of his

motion as a postconviction petition. Accordingly, the judgment of the circuit court is vacated and

remanded for the circuit court to provide defendant the Shellstrom admonishments.

¶ 23   Vacated and remanded with directions.




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                                 No. 1-16-1428


Cite as:                 People v. Cook, 2019 IL App (1st) 161428


Decision Under Review:   Appeal from the Circuit Court of Cook County, No. 99-CR-
                         10066; the Hon. Neera L. Walsh, Judge, presiding.



Attorneys                James E. Chadd, Patricia Mysza, and Deepa Punjabi, of State
for                      Appellate Defender’s Office, of Chicago, for appellant.
Appellant:


Attorneys                Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.
for                      Spellberg Annette Collins and Joseph Alexander, Assistant
Appellee:                State’s Attorneys, of counsel), for the People.




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