Filed 6/6/08       NOS. 4-06-0920, 4-07-0134 cons.

                       IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Adams County
WILLIAM DALE CARTER,                   )    No. 01CF458
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Alesia A. McMillen,
                                       )    Judge Presiding.
_________________________________________________________________

            JUSTICE STEIGMANN delivered the opinion of the court:

            In August 2002, a jury convicted defendant, William

Dale Carter, of home invasion (720 ILCS 5/12-11(a)(1) (West

2000)).    The trial court later sentenced him to 20 years in

prison.    In September 2006, defendant pro se filed a petition for

postconviction relief under the Post-Conviction Hearing Act (725

ILCS 5/122-1 through 122-8 (West 2006)).     In October 2006, the

court dismissed his petition.    Defendant now appeals (case No. 4-

06-0920).

            In December 2006, defendant filed a petition for relief

from judgment pursuant to section 2-1401 of the Code of Civil

Procedure (735 ILCS 5/2-1401 (West 2006)).      In January 2007, the

trial court granted the State's motion to strike his petition.

Defendant now appeals (case No. 4-07-0134).

            At defendant's request, we have consolidated these

appeals.    For the reasons that follow, we (1) reverse the trial
court's dismissal of defendant's postconviction petition and

remand with directions (case No. 4-06-0920) and (2) affirm the

trial court's dismissal of defendant's section 2-1401 petition

(case No. 4-07-0134).

                            I. BACKGROUND

          Following defendant's home-invasion conviction and 20-

year prison sentence, he appealed to this court.    In People v.

Carter, 362 Ill. App. 3d 1180, 1195, 841 N.E.2d 1052, 1064

(2005), we affirmed.

          In September 2006, defendant pro se filed a

postconviction petition contending, in part, that his (1) trial

counsel was ineffective for not requesting that the jury be

instructed on the lesser included offense of criminal trespass to

a residence (720 ILCS 5/19-4 (West 2000)) and (2) appellate

counsel was ineffective for failing to raise that and other

issues on direct appeal.

          In October 2006, the trial court entered the following

written order:

                 "Cause comes on for the [c]ourt's review

          of the [d]efendant's current [p]etition for

          [p]ostconviction [r]elief.    The [c]ourt hav-

          ing reviewed the record of this case and

          having reviewed the defendant's current

          [p]etition for [p]ostconviction [r]elief,


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          [finds]:

               1.    The defendant appealed his convic-

          tion to the Illinois Appellate Court and that

          appeal was denied.

               2.    The defendant filed one or more

          [p]ostconviction petitions which were denied

          by the trial court, appealed to the Illinois

          Appellate Court, and also denied.

               3.    The defendant again filed a subse-

          quent [p]ostconviction [p]etition alleging

          the same or similar errors or alleges errors

          that could have been addressed in his earlier

          [p]ostconviction [p]etitions.

               It is ordered that the [d]efendant's

          present [p]ostconviction petition filed Sep-

          tember 14, 2006[,] is denied as duplicitous

          or dismissal [sic] on the basis of res judi-

          cata and waiver."

          Defendant now appeals (case No. 4-06-0920).

          In December 2006, defendant filed his petition for

relief from judgment pursuant to section 2-1401 (735 ILCS 5/2-

1401 (West 2006)).   In January 2007, the trial court granted the

State's motion to strike his petition for relief from judgment.

Defendant appeals (case No. 4-07-0134).   As earlier noted, we


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granted defendant's request to consolidate case Nos. 4-06-0920

and 4-07-0134.

                            II. ANALYSIS

                        A. Case No. 4-06-0920

            Defendant argues that the trial court erred by dismiss-

ing his pro se postconviction petition.      Specifically, he con-

tends that the court erred by deeming his September 2006

postconviction petition to be an improper subsequent petition

because he had not previously filed a postconviction petition.

We agree.

                    1. Proceedings Under the Act

            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 Constitu-

tion of the United States or of the State of Illinois or both"

(725 ILCS 5/122-1(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.


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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 pro-

ceeds 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)), and the

trial court determines whether the petition alleges a "substan-

tial showing of a constitutional violation" (Phyfiher, 361 Ill.

App. 3d at 883, 838 N.E.2d at 184).    "A defendant is not entitled

to an evidentiary hearing *** as a matter of right" (People v.

Makiel, 358 Ill. App. 3d 102, 105, 830 N.E.2d 731, 736 (2005)),

and "nonspecific and nonfactual assertions are insufficient to

require an evidentiary hearing" (People v. Broughton, 344 Ill.

App. 3d 232, 236, 799 N.E.2d 952, 956 (2003)).   If the allega-

tions of the petition, supported by the record and accompanying

affidavits, demonstrate a substantial violation of a constitu-

tional right, the petition proceeds to stage three for an eviden-


                               - 5 -
tiary hearing.   Phyfiher, 361 Ill. App. 3d at 884, 838 N.E.2d at

184.

        2. The Trial Court's Improper Stage One Dismissal

          As noted earlier, the trial court dismissed defendant's

September 2006 postconviction petition because the court deemed

it an improper subsequent petition.    However, as the State

concedes, this designation was not correct.    Although defendant

had appealed his conviction, he had not previously filed a

postconviction petition.

          The trial court's confusion may be due to defendant's

August 2006 "motion for declaratory judgment," in which he sought

to attack his September 2001 guilty plea to a violation of an

order of protection, for which he was sentenced to 12 months'

probation.   The September 2001 case involved the same victim as

the present case, Patricia Bizaillion.    In August 2007, the court

denied defendant's motion, and the matter is currently before

this court on appeal (case No. 4-07-0781).

          If, as here, defendant's postconviction petition is not

a subsequent petition, then the trial court may dismiss it under

section 122-2.1 of the Act only if the court determines that it

is frivolous or patently without merit.    Although the trial court

in this case dismissed the petition, it made no such determina-

tion.

          The State contends that because this court may affirm


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the trial court's judgment on any basis supported by the record,

we can examine the record ourselves to determine whether defen-

dant's postconviction petition was frivolous or patently without

merit.    We decline the State's invitation to do so.   The Act's

legislative scheme provides for a trial court initially to (1)

make that determination and, if it does not so decide, (2) then

proceed to the second stage of postconviction proceedings.

            Accordingly, we reverse the trial court's dismissal of

defendant's September 2006 postconviction petition and remand for

stage-two proceedings in accordance with the views expressed

herein.    This decision does not constitute any statement by this

court regarding what merits, if any, that petition may possess.



                        B. Case No. 4-07-0134

            In this consolidated appeal, defendant has not argued

for reversal of the trial court's dismissal of his section 2-1401

petition.    Because that motion and his postconviction petition

(the dismissal of which we have now reversed) are so similar, the

defendant is apparently seeking only a reversal and a remand on

the postconviction petition.    Accordingly, we affirm the trial

court's dismissal of defendant's section 2-1401 petition.

                           III. CONCLUSION

            For the reasons stated, in case No. 4-06-0920, we

reverse the trial court's dismissal of defendant's postconviction


                                - 7 -
petition and remand with directions.   In case No. 4-07-0134, we

affirm the trial court's judgment.

          No. 4-06-0920, Reversed and remanded with directions.

          No. 4-07-0134, Affirmed.

          APPLETON, P.J., and TURNER, J., concur.




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