                                            2018 IL App (3d) 160408

                                 Opinion filed November 9, 2018
       _____________________________________________________________________________

                                                     IN THE

                                     APPELLATE COURT OF ILLINOIS

                                               THIRD DISTRICT

                                                      2018

       THE PEOPLE OF THE STATE OF                        )       Appeal from the Circuit Court
       ILLINOIS,                                         )       of the 10th Judicial Circuit,
                                                         )       Peoria County, Illinois,
              Plaintiff-Appellee,                        )
                                                         )       Appeal No. 3-16-0408
              v. 	                                       )       Circuit No. 06-CF-359

                                                         )

       JOE LEE STEWART,                                  )       Honorable

                                                         )       John P. Vespa,
              Defendant-Appellant.                       )       Judge, Presiding.
       _____________________________________________________________________________

             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


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     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

     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:




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                     “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.




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¶ 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 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


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       (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. At the initial status

       hearing, the court asked defendant if he was making a claim of ineffective assistance of 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,


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       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 the court recharacterized the petition at defendant’s request in his

       response to the State’s motion to dismiss. 1 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


               1
                The State’s brief is internally inconsistent on the matter of whether the trial court recharacterized
       defendant’s pro se pleading as a postconviction petition. On the sixth page of its brief, the State notes that
       the court referred to the pleading as a postconviction petition in its written order granting the motion to
       dismiss. The State then asserts: “Thus, the record is clear, Judge Vespa recharacterized [defendant’s] 2­
       1401 petition as a [postconviction] petition.” Then, two pages later, when arguing that appointed counsel
       was not required to file a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013),
       the State asserts: “The record does not show that the judge recharacterized [defendant’s] petition as a
       successive [postconviction] petition.” We interpret the State’s argument to be that the court did
       recharacterize defendant’s pro se pleading, but only after defendant requested that the court recharacterize
       it.
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       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 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.

¶ 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


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       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.

¶ 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.


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       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.

¶ 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.




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¶ 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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