                                                    SECOND DIVISION
                                                    May 29, 2007




No. 1-04-0320

THE PEOPLE OF THE STATE OF ILLINOIS,      )    Appeal from the
                                          )    Circuit Court of
     Plaintiff-Appellee,                  )    Cook County.
                                          )
            v.                            )
                                          )
HARRY MCDONALD,                           )    Honorable
                                          )    Stanley J. Sacks,
     Defendant-Appellant.                 )    Judge Presiding.


     PRESIDING JUSTICE WOLFSON delivered the opinion of the

court:

     Defendant Harry McDonald appeals the summary dismissal of

his pro se petition for relief under the Post-Conviction Hearing

Act (Act) (725 ILCS 5/122-1 et seq. (West 2002)).    Defendant

contends the circuit court erroneously dismissed his petition on

the grounds that the petition failed to assert it was filed under

section 122-1 of the Act.    That is, failed to use the section

number.   Defendant also contends the circuit court clerk’s

failure to “promptly” docket his petition, as required by the

Act, precluded the circuit court from summarily dismissing the

petition.    We reverse and remand.

FACTS

     On June 21, 2002, defendant filed a pro se post-conviction

petition with Dorothy Brown, Clerk of the Circuit Court for Cook
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County.    At the top of pages one, two, and three were the words:

“Ill. Post-Conviction Petition.”       The words “Post-Conviction

Petition” were at the top of pages four, five, six, seven, and

eight.    The Appendix to the petition was headed “Illinois Post-

Conviction Petition.”    In the body of the one-page Appendix were

references to “725 ILCS 5/122-6,” “122-4,” and “122-5&6.”

     The petition was stamped “Received” by the clerk’s office on

June 28, 2002.    No further action was taken on the petition.      On

July 1, 2003, defendant filed a federal lawsuit seeking to compel

action on his petition.    The petition finally was docketed on

October 30, 2003.    After the petition was docketed, defendant’s

federal action was dismissed as moot.

     On November 14, 2003, the circuit court, relying on section

122-1(d) of the Act, summarily dismissed defendant’s petition.

The court found defendant failed to specify his petition had been

filed under the section pertaining to the Act, holding:

            “As I said before, on June 28th, he filed a

            stack of documents which are basically

            illegible, incomprehensible, hardly

            understandable at all and the clerk’s office

            sent them –- kept these documents, whatever

            they are until they sent them up to the

            courtroom within the last few weeks.     After


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            reviewing the documents in consideration, as

            I said before, 5 slash 122 dash 1 D, whatever

            he filed is dismissed.     Defendant to be

            notified.”

The circuit court did not discuss the petition’s merits or lack

of them.    Nor did it use the words “frivolous” or “merit.”

       On January 31, 2005, defendant filed a motion for summary

remand in this court, contending the circuit court failed to

enter its order within 90 days of the filing and docketing of the

petition.    Defendant also contended the circuit court erred in

finding he failed to properly designate his pleading as a post-

conviction petition in a way required by section 122-1(d) of the

Act.    We granted defendant’s motion on March 4, 2005.    On

September 27, 2006, our supreme court entered a supervisory order

directing us to vacate the summary remand and consider the appeal

in light of People v. Brooks, 221 Ill. 2d 381, 851 N.E.2d 59

(2006).    We vacated our order and set a briefing schedule.

DECISION

I. Section 122-1(d)’s pleading requirement

       Defendant contends the trial court erred in summarily

dismissing his petition under section 122-1(d) of the Act.

Defendant contends the captions “Ill. Post-Conviction Petition”

and “Post-Conviction Petition” written across the pages of the


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pleading and the express citations to the Act contained in the

Appendix to the petition established compliance with section 122-

1(d).

     The issue before us requires us to interpret the statute, a

question of law we review de novo.        People v. Donoho, 204 Ill. 2d

159, 172, 788 N.E.2d 707 (2003).        Our primary goal in

interpreting a statute is to give effect to the intent of the

legislature.    People v. Phelps, 221 Ill. 2d 1, 15, 809 N.E.2d

1201 (2003).    The most reliable indication of legislative intent

is the language of the statute, given its plain and ordinary

meaning.    Phelps, 221 Ill. 2d at 15.      "We will not depart from

the plain language of the statute by reading into it exceptions,

limitations, or conditions that conflict with the express

legislative intent."    People v. Blair, 215 Ill. 2d 427, 443, 831

N.E.2d 604 (2005).

     Section 122-1(d) provides:

            “A person seeking relief by filing a petition

            under this Section must specify in the

            petition or its heading that it is filed

            under this Section.   A trial court that has

            received a petition complaining of a

            conviction or sentence that fails to specify

            in the petition or its heading that it is


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            filed under this Section need not evaluate

            the petition to determine whether it could

            otherwise have stated some grounds for relief

            under this Article.”   725 ILCS 5/122-1(d)

            (West 2002).

     The controversy in this case arises from the legislature’s

use of the word “Section.”    The State contends the word section

never is used in the Post-Conviction Act to describe the Act in

its entirety, indicating the legislature’s use of the word means

a post-conviction petition must expressly state it is filed under

section 122-1 of the Act.    The State contends defendant failed to

meet this plainly-stated requirement.

     The long-held view is that the Act must be " ‘liberally

construed to afford a convicted person an opportunity to present

questions of deprivation of constitutional rights.’ "       People v.

Paleologos, 345 Ill. App. 3d 700, 708, 803 N.E.2d 108 (2003),

quoting People v. Correa, 108 Ill. 2d 541, 546, 485 N.E.2d 307

(1985).   To survive summary dismissal, a post-conviction petition

need only present the gist of a constitutional claim.       People v.

Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102 (1996).      This is

intended to be a low threshold and a defendant need only present

a limited amount of detail.    Gaultney, 174 Ill. 2d at 418.    "At

this stage, a defendant need not make legal arguments or cite to


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legal authority."   Gaultney, 174 Ill. 2d at 418.

     In People v. Purnell, 356 Ill. App. 3d 524, 528-29, 825

N.E.2d 1234 (2005), the court held that "[b]ecause [defendant’s]

petition did not indicate in any way that he sought relief under

the Act, under the plain meaning of section 122-1(d), the trial

court was not required to treat his petition as a postconviction

petition."   (Emphasis added.)   Purnell did not hold the section

number of the Act had to be on the petition.   The holding in

Purnell is broad enough to authorize acceptance of the

defendant’s petition in this case.

     In People v. Holliday, 369 Ill. App. 3d 678, 681, __ N.E.2d

__ (2007), the court held the legislature’s intent in enacting

section 122-1(d) seemed clear:   "The legislature wished to undo

the line of Illinois cases (including Sturgeon) holding that a

trial court was required to recharacterize a defendant’s pleading

as a postconviction petition if such recharacterization could

fairly be done based upon the contents of the pleading, even

though the pleading made no reference to the Act."    Holliday, 369

Ill. App. 3d at 681.

     In People v. Edwards, 197 Ill. 2d 239, 245, 757 N.E.2d 442

(2001), the supreme court considered whether, under the "gist"

standard, a pro se defendant must "plead sufficient facts from

which the trial court could find a valid claim of deprivation of


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a constitutional right."   (Emphasis in original.)    The court held

the "sufficient facts" test imposed too heavy a burden on the pro

se defendant.   Edwards, 197 Ill. 2d at 245.    "While in a given

case the pro se defendant may be aware of all the facts

pertaining to his claim, he will, in all likelihood, be unaware

of the precise legal basis for his claim or all the legal

elements of that claim."   Edwards, 197 Ill. 2d at 245.

     In this case, defendant made it clear his petition was

intended to be a post-conviction petition when he wrote "Ill.

Post-Conviction Petition" or “Post-Conviction Petition” at the

top of every page.   Similar to rejection of the "sufficient

facts" test in Edwards, we find requiring a defendant to

specifically cite section 122-1 of the Act by number in his

petition in order to satisfy section 122-1(d)’s pleading

requirements would undermine the intent of the legislature to

provide a "low threshold" during the first stage of a post-

conviction proceeding.   The State’s interpretation of section

122-1(d) would impose "too heavy a burden on a pro se defendant."

See Edwards, 197 Ill. 2d at 245.      Requiring a pro se defendant to

expressly cite section 122-1, rather than simply refer to the Act

itself, would not advance the legislature’s intent when it

adopted section 122-1(d)--to eliminate the need to recharacterize

a pleading as a post-conviction petition even though the pleading


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made no reference to the Act itself.     See Holliday, 369 Ill. App.

3d at 681.

      In support of our conclusion, we note all post-conviction

petitions are necessarily filed under section 122-1 of the Act.

See 725 ILCS 5/122-1 (West 2002).     There is no other way to do

it.   A pro se defendant’s notation in the heading that a petition

is an Illinois post-conviction petition adequately informs the

circuit court that the petition is being filed pursuant to

section 122-1 of the Act.

      The language of section 122-1(d) of the Act does not

persuade us the legislature intended petitioners to specifically

cite section 122-1 in their petitions.     Accordingly, we find the

trial court erred in summarily dismissing defendant’s petition

under section 122-1(d).

II. Nature of remand

      Our conclusion that the trial court erred when it dismissed

the petition for failure to cite section 122-1 by number entitles

the defendant to reversal and remand.     The question then becomes

whether we remand this case for a stage-one or a stage-two

proceeding under the Act.

      The Act provides a three-stage process for the adjudication

of post-conviction petitions.   People v. Boclair, 202 Ill. 2d 89,

99, 789 N.E.2d 734 (2002).   In the first stage, the circuit court


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considers whether the petition is “frivolous or patently without

merit.”    See 725 ILCS 5/122-2.1(a)(2) (West 2002); Boclair, 202

Ill. 2d at 99.    If the petition is not dismissed pursuant to

section 122-2.1, the petition advances to stage two.    The circuit

court must then appoint legal counsel to represent an indigent

defendant; counsel will have an opportunity to amend the

petition.    See 725 ILCS 5/122-4 et seq. (West 2002); Boclair, 202

Ill. 2d at 99.    If the petition is not dismissed at stage two, it

proceeds to stage three where the circuit court conducts an

evidentiary hearing.    See 725 ILCS 5/122-6 (West 2002); People v.

Makiel, 358 Ill. App. 3d 102, 104, 830 N.E.2d 731 (2005).

     Even if we take the October 30, 2003, docketing date as our

starting point, the circuit court did not dismiss the petition as

“frivolous or patently without merit” within 90 days of

docketing, as required by section 122-2.1(a).    See 725 ILCS

5/122-2.1(a) (West 2002).    Instead, the circuit court summarily

dismissed defendant’s petition based solely on defendant’s

failure to refer to section 122-1 by number–-a decision we now

reverse.    No reported decision authorizes us to turn back the

clock on the 90-day requirement.

     Because the circuit court failed to address whether the

petition was “frivolous or patently without merit” within the 90-

day period, we find the petition must be remanded for stage-two


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proceedings.   See 725 ILCS 5/122-2.1(b) (West 2002) (“If the

petition is not dismissed pursuant to this Section, the court

shall order the petition to be docketed for further consideration

in accordance with Sections 122-4 through 122-6.”)

     Our disposition of this appeal does not require us to

address a serious issue raised by the defendant: whether the

clerk’s 16-month delay between filing the petition and docketing

it violates the spirit and purpose of the 90-day rule, requiring

us to remand the petition for second-stage review.   Hopefully, we

will not again be faced with so substantial a failure by the

clerk to perform her statutory duty to “promptly” docket the

petition.

CONCLUSION

     We reverse the circuit court’s summary dismissal of the

defendant’s post-conviction petition and remand the cause for

further consideration as a stage-two proceeding in accord with

sections 122-4 through 122-6 of the Act.

     Reversed and remanded.

     HOFFMAN, and HALL, JJ., concur.




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