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                                  Appellate Court                           Date: 2019.02.20
                                                                            08:59:40 -06'00'




                      People v. Stewart, 2018 IL App (3d) 160408



Appellate Court       THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption               JOE LEE STEWART, Defendant-Appellant.



District & No.        Third District
                      Docket No. 3-16-0408



Filed                 November 9, 2018
Modified upon
denial of rehearing   December 12, 2018



Decision Under        Appeal from the Circuit Court of Peoria County, No. 06-CF-359; the
Review                Hon. John P. Vespa, Judge, presiding.



Judgment              Vacated and remanded with directions.


Counsel on            James E. Chadd, Thomas A. Lilien, and Jack Hildebrand, of State
Appeal                Appellate Defender’s Office, of Elgin, for appellant.

                      Jerry Brady, State’s Attorney, of Peoria (Patrick Delfino, David J.
                      Robinson, and Mark A. Austill, of State’s Attorneys Appellate
                      Prosecutor’s Office, of counsel), for the People.
     Panel                     JUSTICE O’BRIEN delivered the judgment of the court, with
                               opinion.
                               Justice Lytton concurred in the judgment and opinion.
                               Justice Schmidt dissented, with opinion.


                                                 OPINION

¶1         Defendant, Joe Lee Stewart, appeals the trial court’s order granting the State’s motion to
       dismiss his section 2-1401 petition. Specifically, defendant argues that the court erred in
       considering the petition as a successive postconviction petition without informing defendant.
       We vacate the court’s order dismissing defendant’s petition and remand the matter with
       directions that the court admonish defendant regarding its recharacterization of the petition.

¶2                                                 FACTS
¶3         Defendant was convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West 2004)) for
       causing the death of Leon Riley. The court sentenced defendant to 30 years’ imprisonment plus
       a firearm enhancement of 25 years’ imprisonment. Defendant was represented by Assistant
       Public Defender Mark Rose throughout the pretrial proceedings, the trial, and sentencing. On
       appeal, we awarded defendant additional presentence custody credit but otherwise affirmed
       defendant’s conviction and sentence. People v. Stewart, No. 3-06-0874 (2008) (unpublished
       summary order under Illinois Supreme Court Rule 23(c)).
¶4         On September 8, 2008, defendant filed a pro se postconviction petition alleging, inter alia,
       that defendant’s trial counsel labored under a conflict of interest. Specifically, the petition
       alleged: “Trial counsel was ineffective for failing to make the petitioner aware of his
       connection to the victim and the vi[c]tim’s family, by not presenting petitioner with a[n]
       intelligent waiver prepared by counsel to inform the petitioner of his rights under such
       circumstances.” The trial court summarily dismissed the petition. On appeal, we affirmed the
       summary dismissal. People v. Stewart, 405 Ill. App. 3d 1216 (2010) (table) (unpublished order
       under Illinois Supreme Court Rule 23). We reasoned that defendant “failed to attach any
       affidavits, records, or other evidence to support his allegations of conflict of interest.” Id., slip
       order at 6. We also reasoned that defendant failed to allege sufficient facts to “make clear the
       nature of the conflict of interest he allege[d].” Id.
¶5         On July 9, 2015, defendant filed a pro se pleading titled “Motion in Nature of Writ of Error
       Coram Nobis,” which is the subject of the instant appeal. The pleading indicated that defendant
       was seeking relief under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS
       5/2-1401 (West 2014)). In the motion, defendant argued that Rose had previously represented
       Riley and failed to disclose this conflict to defendant. Defendant attached to his motion a
       document titled “Case Summary Case No. 02-CF-00053-1.” This document indicated that
       Leon D. Riley had been convicted of aggravated robbery in 2002. The document listed the
       “Lead Attorneys” as “A. Purham” and “M. Rose.” Defendant alleged that he had relied on
       family members to supply him with the case summary and that he “exercised due diligence in
       securing this information/evidence as directed by the appellate court.”
¶6         The court held a status hearing on defendant’s pro se pleading. The court asked defendant
       if he was making a claim of ineffective assistance of counsel. Defendant said yes. The court

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       asked defendant if he had brought that claim before the court in prior proceedings. Defendant
       said that his previous appeal was denied because he did not have documentation to support the
       claim. The court asked the State if it had filed a response to defendant’s pleading. The assistant
       state’s attorney replied: “No, sir. I’m not sure that it is even proper character in his post
       conviction petition. If the Court wants to characterize as that, I guess I would ask we set it for
       motions to be filed.” The assistant state’s attorney stated that the pleading was “not obviously
       on its face a post-conviction petition.” The court noted that the State might not have been
       served with the pleading and gave the State 30 days to respond.
¶7          The court then appointed an assistant public defender to represent defendant. The assistant
       public defender asked the court what type of case it was. The court replied: “Well, okay, I will
       call it for purposes of answering your question, post conviction, post conviction case.” The
       court told the assistant public defender to inform the court if he reviewed the case and
       determined that it was not a postconviction case. The assistant public defender stated that he
       believed defendant’s pleading was a section 2-1401 petition and that defendant was not
       entitled to court-appointed counsel. The court replied:
                “The problem is he didn’t label this like he should have. It is no big deal. I don’t care,
                but that has got us where you just can’t go to the one pleading and see a label on there
                and know one way or the other whether to appoint the Public Defender, and I would
                rather not take his word for it.”
       The court gave the assistant public defender 30 minutes to review the pleading. After the
       recess, the court indicated that the case would be continued. The record does not show any
       further discussion between the court and the assistant public defender, nor does it show that the
       trial court admonished defendant that it intended to recharacterize the petition.
¶8          On May 13, 2016, the State filed a “Motion to Dismiss Defendant’s Petition for Relief
       from Judgment,” which characterized defendant’s pleading as a section 2-1401 petition. The
       motion to dismiss argued that defendant’s petition was untimely under section 2-1401(c) of the
       Code (id. § 2-1401(c)) because it was filed more than two years after the entry of judgment.
       The motion also argued that defendant’s petition improperly attempted to relitigate an issue
       that he previously raised in other collateral proceedings and that defendant’s petition was
       insufficient on its face because trial counsel’s alleged prior representation of the murder victim
       was not a per se conflict of interest.
¶9          On June 10, 2016, a hearing was held on the State’s motion to dismiss. Defendant appeared
       pro se at the hearing. The record does not indicate that the public defender had withdrawn as
       counsel. At the hearing, the court and the State referred to defendant’s pleading as a petition for
       relief from judgment. Defendant asked to file a pro se response to the State’s motion to
       dismiss. The State did not object, and the court indicated that it would consider defendant’s
       written response.
¶ 10        In the written response, defendant argued that trial counsel’s prior representation of Riley
       created a per se conflict of interest. Defendant stated that this was a violation of his sixth
       amendment right to effective assistance of counsel and requested that the court recharacterize
       his section 2-1401 petition as a successive postconviction petition. Defendant attached a
       notarized affidavit stating that he was never informed of his trial counsel’s prior representation
       of Riley or given the chance to waive his right to conflict-free counsel. Defendant also attached
       a “Motion for Leave to File Successive Post-Conviction Petition Pursuant to 725 ILCS
       5/122-1(f).” In this motion, defendant alleged that there was cause for his failure to bring the

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       claim in his previous postconviction petition because he was waiting on family members to
       obtain the case summary documenting trial counsel’s prior representation of Riley. Defendant
       also alleged that prejudice resulted from his failure to bring the claim earlier because “the
       claim infected [his] judgment of conviction.”
¶ 11       The court entered a written order granting the State’s motion to dismiss. The court referred
       to defendant’s pro se pleading as a postconviction petition throughout the written order. The
       court reasoned that defendant’s petition was untimely, his claim was barred by the doctrine of
       res judicata, and the petition “fail[ed] to ‘clearly set forth the respects in which petitioner’s
       constitutional rights were violated.’ ” The order stated that it was a final judgment pursuant to
       section 122-2.1(a)(2) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-2.1(a)(2)
       (West 2014)).

¶ 12                                               ANALYSIS
¶ 13       Defendant argues that the court erred in dismissing his section 2-1401 petition by
       “(1) considering the petition as a successive post-conviction petition without informing
       [defendant]; (2) appointing counsel and then having [defendant] proceed pro se; and
       (3) requiring [defendant] to show prejudice from the per se conflict.” We find that this matter
       must be remanded because the court failed to properly admonish defendant before
       recharacterizing defendant’s pro se pleading as a postconviction petition.
¶ 14       “[W]here 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 where the
       pleading is labeled differently.” People v. Shellstrom, 216 Ill. 2d 45, 53 (2005). However,
       before recharacterizing a pleading as a postconviction petition, the trial court must give the
       defendant several admonitions (Shellstrom admonitions). Id. at 57. Specifically, before
       recharacterizing a pro se pleading as a successive postconviction petition, the trial 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 the 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 factors
               and arguments appropriate to a successive postconviction petition that the litigant
               believes he or she has.” People v. Pearson, 216 Ill. 2d 58, 68 (2005).
       See also Shellstrom, 216 Ill. 2d at 57.
¶ 15       In the instant case, it is clear that the court recharacterized defendant’s pro se pleading as a
       successive postconviction petition at some point during the proceedings.1 At the initial status
       hearing, the court asked defendant if he was making a claim of ineffective assistance of

           1
             We disagree with the State’s position that the court recharacterized defendant’s pleading as an
       initial postconviction petition rather than a successive postconviction petition. Because defendant had
       previously filed an initial postconviction petition, the standards for successive postconviction petitions
       necessarily applied in the event that the court recharacterized the pro se pleading as a postconviction
       petition. We acknowledge that the court cited section 122-2.1(a)(2) of the Act (725 ILCS
       5/122-2.1(a)(2) (West 2014)) in its written order, which concerns first-stage summary dismissals.
       However, we believe that the court’s reference to section 122-2.1(a)(2) of the Act merely indicated that
       the court applied the incorrect standard after recharacterizing the pro se pleading as a postconviction
       petition.

                                                       -4-
       counsel, which is a constitutional claim that is cognizable in a postconviction proceeding.
       Defendant said yes. The court then appointed counsel to represent defendant. Appointed
       counsel asked what type of case it was, and the court replied, “I will call it for purposes of
       answering your question, post conviction, post conviction case.” When appointed counsel
       expressed doubt as to whether defendant’s pro se pleading was actually a successive
       postconviction petition, the court indicated that defendant did not label the pleading correctly.
       The court told appointed counsel that he could review the case and advise the court if he did not
       believe it was a postconviction case, but the record does not indicate that counsel ever did this.
       Significantly, the court referred to defendant’s pleading as a postconviction petition in its
       written order granting the State’s motion to dismiss.
¶ 16       Because the court recharacterized defendant’s pro se pleading as a successive
       postconviction petition, the court erred in failing to (1) admonish defendant that it was
       recharacterizing the pleading as a successive postconviction, (2) admonish defendant that the
       petition would be subject to the strictures of the Act, and (3) give defendant an opportunity to
       withdraw or amend his pleading. See Pearson, 216 Ill. 2d at 68. Accordingly, we find that the
       matter must be remanded for new proceedings. Because we have found that remand is
       required based on the court’s failure to give the Shellstrom admonitions, we need not reach
       defendant’s alternative arguments on appeal.
¶ 17       We reject the State’s argument that the court did not err in failing to give defendant the
       above admonitions because defendant requested that the court recharacterize his pro se
       pleading as a successive postconviction petition in his response to the State’s motion to
       dismiss. The State cites People v. Bland, 2011 IL App (4th) 100624, for the proposition that a
       court need not provide Shellstrom admonitions where the court does not sua sponte
       recharacterize a defendant’s pleading. In Bland, the defendant filed a pro se pleading that cited
       both section 2-1401 of the Code and section 122-1 of the Act. Id. ¶ 2. The trial court asked the
       defendant at a hearing whether he wished to proceed under the Act or section 2-1401, and the
       defendant replied that he wished for his pleading to be treated as a postconviction petition. Id.
       ¶¶ 8-9. The Bland court held that Shellstrom admonitions were unnecessary under these
       circumstances. Id. ¶ 24.
¶ 18       In the instant case, unlike in Bland, defendant did not cite both the Act and section 2-1401
       of the Code in his initial pro se pleading. Moreover, unlike in Bland, the record does not
       clearly show at which point the court recharacterized the petition. Here, the court did not state
       explicitly in its order granting the State’s motion to dismiss that it was recharacterizing
       defendant’s pro se pleading as a successive postconviction petition because defendant had
       requested that the court do so. Also, the court showed some intent to recharacterize the pro se
       pleading as a successive postconviction petition at the initial hearing on defendant’s pro se
       pleading, which occurred before defendant requested that the court recharacterize his pleading.
       During that hearing, the trial court appeared to believe defendant’s pleading was in the nature
       of a successive postconviction petition, and it gave the appointed public defender thirty
       minutes to review the case and inform the court if he determined it was not a postconviction
       case. However, there is no indication the public defender weighed in on the nature of the
       petition as requested by the trial court. Thus, it is unclear whether the court recharacterized the
       pro se pleading after defendant filed his motion for leave to file a successive postconviction
       petition or earlier in the proceedings.



                                                    -5-
¶ 19        While the dissent correctly notes that defendant filed a pro se motion for leave to file a
       successive postconviction petition along with his response to the State’s motion to dismiss, it is
       unclear whether the trial court actually considered this motion. The court did not expressly
       deny defendant’s motion for leave to file a successive postconviction petition. Instead, the
       court granted the State’s motion to dismiss, which characterized defendant’s initial pleading as
       a section 2-1401 petition. The written order granting the State’s motion to dismiss did not
       mention defendant’s motion for leave to file a successive postconviction petition or the cause
       and prejudice standard. The written order cited section 122-2.1(a)(2) of the Act (725 ILCS
       5/122-2.1(a)(2) (West 2014)), which concerns first-stage summary dismissals rather than leave
       to file successive petitions. The court’s reference to section 122-2.1(a)(2) rather than the cause
       and prejudice standard indicates that the court did not recharacterize the pleading in response
       to defendant’s motion for leave to file a successive postconviction petition.
¶ 20        In light of all of the confusion as to the nature of the pleadings, we cannot conclude that the
       trial court recharacterized the pleadings at defendant’s request, which would have alleviated
       the need for the Shellstrom admonitions. Giving the admonitions would have the additional
       benefit of clarifying for all parties involved that the court was proceeding under the Act rather
       than under section 2-1401 of the Code.

¶ 21                                         CONCLUSION
¶ 22       For the foregoing reasons, we vacate the judgment of the trial court. We remand the matter
       to the trial court with directions to (1) admonish defendant that the court intends to
       recharacterize the pleading as a successive postconviction petition, (2) warn defendant that this
       recharacterization means that the petition will be subject to the restrictions on successive
       postconviction petitions, and (3) provide defendant an opportunity to withdraw or amend the
       pleading “so that it contains all the factors and arguments appropriate to a successive
       postconviction petition that [defendant] believes he *** has.” Pearson, 216 Ill. 2d at 68.

¶ 23      Vacated and remanded with directions.

¶ 24       JUSTICE SCHMIDT, dissenting:
¶ 25       Defendant cannot ask the court to treat his pleading as a successive postconviction petition
       and then complain on appeal that the court granted his request. People v. Carter, 208 Ill. 2d
       309, 319 (2003); see People v. Henderson, 2017 IL App (3d) 150550, ¶ 36; People v. Threatte,
       2017 IL App (2d) 160161, ¶ 18; People v. Henderson, 45 Ill. App. 3d 798, 802 (1977).
¶ 26       Because this does not involve a court, sua sponte, characterizing a pleading as a successive
       postconviction petition, Pearson and Shellstrom are inapplicable. Unlike the defendant in
       Pearson, it is clear that defendant knew what he was doing when he asked that his pleading be
       filed as a successive postconviction petition. He alleged, or attempted to allege, both cause and
       prejudice.
¶ 27       I also believe that the majority’s attempts to distinguish Bland clearly fail. See supra
       ¶¶ 17-18. While the majority is not bound to follow Bland, Bland is well-reasoned and
       supports the State’s position that, under the facts of this case, no additional admonitions to
       defendant were necessary.



                                                    -6-
¶ 28        Defendant’s successive postconviction petition failed to establish “cause.” The gravamen
       of defendant’s argument is that his former defense attorney, Mark Rose, had previously acted
       as defense counsel for defendant’s victim, Riley, in a 2002 criminal matter. In his motion for
       leave to file a successive postconviction petition, the defendant pled that the cause for not
       filing this motion until eight years after his trial was that he was waiting for his family to obtain
       the case summary documenting trial counsel’s prior representation of Riley. As the majority
       points out (supra ¶ 4), defendant unsuccessfully attempted to raise this same issue in his
       September 8, 2008, postconviction petition. The trial court correctly found the issue
       res judicata. Defendant provides no reason why he could not obtain necessary documentation
       before filing his original postconviction petition. “I was waiting for my family” is no just cause
       for delay. If defendant could obtain the records in 2015, he could have done so in 2008.
¶ 29        Again, the defendant here filed a motion for leave to file a successive postconviction
       petition, asked that his claim be treated as a successive postconviction petition, and then the
       majority holds that the trial court recharacterized defendant’s section 2-1401 petition as a
       successive postconviction petition sua sponte, without giving admonitions to defendant. This
       case is nothing like either Shellstrom or Pearson. I would affirm.




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