                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Bland, 2011 IL App (4th) 100624




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    STACEY BLAND, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-10-0624


Filed                      December 2, 2011


Held                       Where defendant filed a pro se motion seeking to vacate his theft
(Note: This syllabus       conviction following his unsuccessful appeal and the motion cited both
constitutes no part of     section 2-1401 of the Code of Civil Procedure and the Post-Conviction
the opinion of the court   Hearing Act and defendant said that he wanted to proceed under the Act
but has been prepared      when the trial judge sought clarification as to how defendant wanted to
by the Reporter of         proceed, the trial court’s subsequent dismissal of the motion was reversed
Decisions for the          and the cause was remanded with directions to proceed to the second
convenience of the         stage of postconviction proceedings and appoint counsel to represent
reader.)
                           defendant, since the trial court considered input from the State when it
                           dismissed defendant’s motion without appointing postconviction counsel
                           to represent defendant as required by the Act.


Decision Under             Appeal from the Circuit Court of Sangamon County, No. 06-CF-227; the
Review                     Hon. Esteban F. Sanchez, Judge, presiding.



Judgment                   Reversed and remanded with directions.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Susan M. Wilham, all of State
Appeal                     Appellate Defender’s Office, of Springfield, for appellant.

                           John P. Schmidt, State’s Attorney, of Springfield (Patrick Delfino, Robert
                           J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE STEIGMANN delivered the judgment of the court, with
                           opinion.
                           Justices Appleton and McCullough concurred in the judgment and
                           opinion.




                                              OPINION

¶1           In May 2006, a jury convicted defendant, Stacey Bland, of theft (720 ILCS 5/16-1(a)(1)
        (West 2006)). In August 2006, the trial court sentenced him to seven years in prison.
        Defendant appealed, and this court affirmed (People v. Bland, No. 4-07-0592 (August 28,
        2008) (unpublished order pursuant to Supreme Court Rule 23)).
¶2           In October 2009, defendant pro se filed a “Motion to Vacate Judgment,” citing section
        2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)) and section
        122-1 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 (West 2008)). At the trial
        court’s urging, the State responded by filing a motion to dismiss. Following a May 2010
        hearing at which (1) the court asked defendant to clarify whether he wished to proceed under
        the Code or the Act and (2) defendant responded that he wished to proceed under the Act,
        the court granted the State’s motion to dismiss.
¶3           Defendant appeals, arguing that (1) the trial court erred by failing to properly admonish
        him prior to recharacterizing his pleading, and (2) alternatively, the court erred by dismissing
        his petition without appointing counsel for him. Because we agree that the court erred by
        failing to appoint counsel, we reverse and remand with directions.

¶4                                      I. BACKGROUND
¶5         Following defendant’s May 2006 theft conviction, the trial court sentenced him to seven
        years in prison. Defendant appealed, and this court affirmed (People v. Bland, No. 4-07-0592
        (August 28, 2008) (unpublished order pursuant to Supreme Court Rule 23)).
¶6         In October 2009, defendant pro se filed a “Motion to Vacate Judgment,” citing section
        2-1401 of the Code (735 ILCS 5/2-1401 (West 2008)) and section 122-1 of the Act (725
        ILCS 5/122-1 (West 2008)). In his motion, defendant requested the appointment of counsel.

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       At the trial court’s urging, the State responded by filing a motion to dismiss, in which the
       State argued that although it was unclear from defendant’s pleading whether he wished to
       proceed under the Code or the Act, defendant’s pleading should be dismissed because it was
       untimely and baseless under either characterization.
¶7         In May 2010, the trial court initiated a hearing at which defendant participated by
       telephone and the prosecutor participated from the trial judge’s chambers. At the outset, the
       prosecutor outlined why the hearing was being held, as follows:
               “Judge, initially, the threshold determination as to what type of petition or motion
           that [defendant] filed *** needs to be addressed. I will specifically state from the outset
           that I don’t think from the State’s perspective it really concerns us as to whether it is a
           [p]ost-conviction [p]etition or a [p]etition for [p]ost-judgment [r]elief under the Code of
           Civil Procedure.
               Judge, I spent several pages in my motion discussing the various issues with respect
           to that, and I think, for the sake of clarity, [defendant] characterized this as a [section] 2-
           1401 *** [p]etition ***, and perhaps we ought to just address it as such. But I can
           address it if it were to be characterized as a [p]ost-conviction [p]etition.”
       The prosecutor then explained the reasons why defendant’s petition should fail under either
       characterization. Defendant, who was unrepresented at the hearing, responded by attempting
       to address the prosecutor’s points.
¶8         Following defendant’s argument, the trial court asked defendant to clarify whether he
       wished to proceed under the Code or the Act.
               “Let me ask you a question, [defendant].
                                                  ***
               You petitioned the Court, and you stated here that you are only seeking to vacate the
           sentence because *** you feel that the sentence is illegal. But you filed your [p]etition
           under the Civil Rules of Procedure[,] 735 ILCS 5/2-1401. *** [B]ut there is some ***
           reference in the body of your motion to the Post-[C]onviciton Hearing Act. Are you ***
           asking to proceed under the Civil Procedure Act or under the *** Post-[C]onviction
           Hearing Act.”
¶9         Defendant responded as follows: “I’m going to *** go with the post-conviction, Your
       Honor.” The trial court clarified by asking defendant, “You’re going to go with the post-
       conviction?” Defendant confirmed, “Right.” The court further clarified, “Are you sure? You
       are asking me to treat this [p]etition as a [p]ost-conviction [p]etition; is that correct?”
       Defendant again confirmed, “Yes, sir, Your Honor. I’m *** not going to change a thing. I’m
       going to stay with the post-conviction.” The court then took the matter under advisement.
¶ 10       In August 2010, the trial court entered a written order granting the State’s motion to
       dismiss. That written order (1) began by explaining that the order “addresses the State’s
       Motion to Dismiss” and (2) concluded as follows, “Based upon the forgoing reasons, the
       Motion to Dismiss the Petition for Post Conviction Relief and Vacate Judgment is hereby
       granted.”
¶ 11       This appeal followed.


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¶ 12                                      II. ANALYSIS
¶ 13       Defendant argues that (1) the trial court erred by failing to properly admonish him prior
       to recharacterizing his pleading, and (2) alternatively, the court erred by dismissing his
       pleading, without appointing counsel for him. We address defendant’s contentions in turn.

¶ 14             A. Defendant’s Claim That the Trial Court Erred by Failing To
                Properly Admonish Him Prior To Recharacterizing His Pleading
¶ 15        Defendant contends that the trial court erred by failing to properly admonish him prior
       to recharacterizing his pleading. Specifically, defendant asserts that the court failed to inform
       him that he had the option to withdraw or amend his pleading to comply with the Act as
       required by People v. Shellstrom, 216 Ill. 2d 45, 833 N.E.2d 863 (2005). Because we
       conclude that the court did not “recharacterize” defendant’s pleading, but instead merely
       sought to clarify an ambiguous postjudgment filing, we disagree.

¶ 16                                1. Standard of Review
¶ 17       We review de novo the question of whether the trial court has used the proper procedure
       in complying with the supreme court’s mandate in Shellstrom. People v. Corredor, 399 Ill.
       App. 3d 804, 806, 927 N.E.2d 1231, 1232 (2010).

¶ 18                      2. The Supreme Court’s Directive in Shellstrom
¶ 19       In Shellstrom, the defendant pro se filed a pleading entitled “Motion to Reduce Sentence,
       Alternatively, Petition for Writ of Mandamus to Order Strict Compliance with Terms of
       Guilty Plea.” Shellstrom, 216 Ill. 2d at 48, 833 N.E.2d at 866. The trial court later sua sponte
       treated–or “recharacterized”–the defendant’s pleading as a postconviction petition and
       summarily dismissed it. Shellstrom, 216 Ill. 2d at 49, 833 N.E.2d at 866. The defendant was
       not present, had no notice, and had no opportunity to respond to the court’s dismissal of his
       petition. Shellstrom, 216 Ill. 2d at 49, 833 N.E.2d at 866.
¶ 20       The defendant appealed, arguing, in pertinent part, that he should have been provided
       notice that the trial court intended to treat his pleading as a first postconviciton petition.
       Shellstrom, 216 Ill. 2d at 53-54, 833 N.E.2d at 868. The supreme court agreed, holding that
       when a trial court sua sponte recharacterizes a pleading as a first postconviciton petition, the
       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 postconviction
       petition will be subject to the restrictions on successive postconviction petitions, and (3)
       provide the litigant an opportunity to withdraw the pleadings or amend it so that it contains
       all the claims appropriate to a postconviction petition that the litigant believes he has.
       Shellstrom, 216 Ill. 2d at 57, 833 N.E.2d at 870.




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¶ 21            3. Defendant’s Pleading and the Trial Court’s Action in This Case
¶ 22       In this case, defendant pro se filed a “Motion to Vacate Judgment,” citing section 2-1401
       of the Code (735 ILCS 5/2-1401 (West 2008)) and section 122-1 of the Act (725 ILCS
       5/122-1 (West 2008)). At the trial court’s urging, the State responded by filing a motion to
       dismiss. The record shows that the reason the court urged the State to file a motion in
       response to defendant’s pleading–and subsequently held a hearing–was to establish whether
       defendant’s intent was to file a petition under section 2-1401 of the Code or a petition under
       section 122-1 of the Act. In this regard, this case is squarely inapposite of Shellstrom.
¶ 23       As previously explained, Shellstrom stands for the proposition that when a trial court sua
       sponte recharacterizes a pleading as a first postconviction petition, the court must provide
       the defendant certain admonishments. See People v. Stoffel, 389 Ill. App. 3d 238, 243, 907
       N.E.2d 79, 84 (2009) (“Because of the defendant’s repeated requests to recharacterize his
       section 2-1401 petition as a postconviction petition, the trial court would not have had to take
       sua sponte action, the concerns raised in Shellstrom would not apply, and no Shellstrom
       warnings would need to have been provided.”). Here, the court did not sua sponte
       recharacterize defendant’s pleading. Instead, the court (1) asked the State to respond to
       defendant’s pleading and (2) initiated a May 2010 hearing to ascertain defendant’s intent. At
       that May 2010 hearing, defendant made clear that he intended to file–and have his pleading
       evaluated as–a petition for postconviction relief. Pursuant to defendant’s direction, the court
       treated defendant’s pleading as a postconviction petition.
¶ 24       Because the trial court did not sua sponte recharacterize defendant’s pleading, the court
       was not required to admonish defendant pursuant to Shellstrom. Accordingly, we reject
       defendant’s contention that the court erred by failing to properly admonish him prior to
       “recharacterizing” his pleading.

¶ 25             B. Defendant’s Claim That the Trial Court Erred by Dismissing
                        His Pleading Without Appointing Counsel for Him
¶ 26       Alternatively, defendant contends that the trial court erred by dismissing his pleading
       without appointing counsel for him after receiving input from the State. Specifically,
       defendant asserts that even if we conclude that the court complied with Shellstrom, the court
       erred by failing to appoint counsel for him before dismissing his petition at what amounted
       to a second-stage postconviction proceeding. The State responds that because defendant’s
       petition had not reached the first stage of postconviction proceedings when the court
       accepted its input, defendant’s contention must fail. We agree with defendant.

¶ 27                               1. Postconviction Proceedings
¶ 28      In People v. Andrews, 403 Ill. App. 3d 654, 658-59, 936 N.E.2d 648, 652-53 (2010), this
       court outlined postconviction proceedings under the Act, as follows:
              “A defendant may proceed under the Act by alleging 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.’ 725 ILCS 5/122-


                                                 -5-
          1(a)(1) (West 2006). In noncapital cases, the Act establishes a three-stage process for
          adjudicating a postconviction petition. 725 ILCS 5/122-1 through 122-8 (West 2006);
          People v. Jones, 213 Ill. 2d 498, 503, 821 N.E.2d 1093, 1096 (2004). At the first stage,
          ‘the trial court, without input from the State, examines the petition only to determine if
          [it alleges] a constitutional deprivation unrebutted by the record, rendering the petition
          neither frivolous nor patently without merit.’ (Emphasis in original.) People v. Phyfiher,
          361 Ill. App. 3d 881, 883, 838 N.E.2d 181, 184 (2005). ‘Section 122-2.1 [of the Act]
          directs that if the defendant is sentenced to imprisonment (rather than death) and the
          circuit court determines that the petition is frivolous or patently without merit, it shall be
          dismissed in a written order. 725 ILCS 5/122-2.1(a)(2) (West 2004).’ People v. Torres,
          228 Ill. 2d 382, 394, 888 N.E.2d 91, 99-100 (2008).
               If a petition is not dismissed at stage one, it proceeds to stage two, where section 122-
          4 of the Act provides for the appointment of counsel for an indigent defendant who
          wishes counsel to be appointed. 725 ILCS 5/122-4 (West 2006). At the second stage, the
          State has the opportunity to answer or move to dismiss the petition. 725 ILCS 5/122-5
          (West 2006). If the trial court does not grant the State’s motion to dismiss or if the State
          has filed an answer, the petition proceeds to the third stage, where the defendant may
          present evidence in support of his petition. 725 ILCS 5/122-5, 122-6 (West 2006).”

¶ 29                                2. The Proceedings in This Case
¶ 30       In this case, the trial court entered a written order addressing defendant’s postjudgment
       pleading after clarifying that defendant intended to file that pleading as a postconviction
       petition. Our review of that written order, however, belies the State’s assertion that the court
       did not accept input from the State when it dismissed defendant’s petition. Indeed, the court’s
       order (1) began by explaining that the order “addresses the State’s Motion to Dismiss,” (2)
       concluded as follows, “Based upon the forgoing reasons, the Motion to Dismiss the Petition
       for Post Conviction Relief and Vacate Judgment is hereby granted,” and (3) did not mention
       the frivolous-or-patently-without-merit standard required for a first-stage dismissal.
¶ 31       Given that the proceedings below and the trial court’s written order each show that the
       court considered input from the State without appointing postconviction counsel to represent
       defendant as required by the Act, we reverse and remand with directions that the court
       proceed to the second stage of postconviction proceedings. See People v. Carter, 383 Ill.
       App. 3d 795, 798, 892 N.E.2d 1082, 1085 (2008) (remanding for second-stage proceedings
       because the trial court improperly dismissed the defendant’s petition at the first stage without
       determining whether the defendant’s constitutional claims were frivolous or patently without
       merit, under the mistaken belief that the petition was the defendant’s second postconviction
       petition).

¶ 32                                     III. CONCLUSION
¶ 33       For the reasons stated, we reverse the trial court’s judgment and remand with directions
       that the court (1) proceed to the second stage of postconviction proceedings and (2) appoint
       counsel to represent defendant.

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¶ 34   Reversed and remanded with directions.




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