                           NO. 4-05-0473        Filed: 1/4/07

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Macon County
CHIOKE HOLLIDAY,                       )    No. 97CF1660
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    John K. Greanias,
                                       )    Judge Presiding.
_________________________________________________________________

          PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

          In April 1998, defendant, Chioke Holliday, pleaded

guilty to one count of first degree murder (720 ILCS 5/9-1(a)(1)

(West 1998)), and the trial court later sentenced him to 30 years

in prison.   Defendant later filed a motion to withdraw his guilty

plea and reconsider his sentence, which the trial court denied.
He appealed, and this court affirmed.     People v. Holliday, No. 4-

01-0273 (December 18, 2002) (unpublished order under Supreme

Court Rule 23).

          In January 2005, defendant filed a document entitled,

"habeas corpus petition actual innocence claim," purportedly
under the habeas corpus article of the Code of Civil Procedure

(735 ILCS 5/10-101 through 10-137 (West 2004)), in which defen-

dant claimed that he was being held unlawfully in prison.       In

March 2005, the State moved to dismiss defendant's petition.         In

April 2005, the trial court granted the State's motion and

dismissed the petition.
            Defendant appeals, arguing only that the trial court

erred by dismissing his habeas corpus petition because the court

should have recharacterized it as a postconviction petition that

should have survived first-stage scrutiny under the Post-Convic-

tion Hearing Act (725 ILCS 5/122-1 through 122-8 (West 2004)).

Because we conclude that the trial court did not err by not

recharacterizing defendant's petition, we affirm.

                            I. BACKGROUND

            Defendant's January 2005 petition identified itself as

a habeas corpus petition and stated that it was being brought

pursuant to "735 ILCS 5/10-102 et seq.," the Code's habeas corpus

article.    The petition did not identify itself as being brought

pursuant to the provisions of the Act.

            In the State's March 2005 motion to dismiss defendant's

petition, the State asserted, in pertinent part, that because the

petition did not assert any of the grounds for habeas corpus

relief set forth in section 10-124 of the Code (735 ILCS 5/10-124

(West 2004)), the trial court should dismiss it.    In April 2005,

the court granted the State's motion and dismissed defendant's

petition.

            This appeal followed.

     II. DEFENDANT'S CLAIM THAT THE TRIAL COURT SHOULD HAVE
           RECHARACTERIZED HIS HABEAS CORPUS PETITION
                   AS A POSTCONVICTION PETITION

            Defendant argues that the trial court erred by dismiss-

ing his habeas corpus petition because the court should have

recharacterized it as a postconviction petition.    Defendant


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asserts that, if the court had done so, it would have (1) found

that the petition stated the gist of a meritorious claim that

defendant's trial counsel was ineffective and (2) realized that

the State's motion to dismiss the petition at what should have

been the first stage of postconviction proceedings was improper.

In making these arguments, defendant concedes that he did not

raise any issues in his petition that were cognizable under the

habeas corpus statute.

        A. The Trial Court's Authority To Recharacterize
             a Pleading as a Postconviction Petition

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

N.E.2d 1234, 1238 (2005), the trial court recharacterized the

defendant's habeas corpus petition as a postconviction petition

(believing, erroneously, that it was required to do so under

People v. Sturgeon, 272 Ill. App. 3d 48, 649 N.E.2d 1385 (1995)).

The court then dismissed the defendant's petition as frivolous

and patently without merit.   We affirmed the court's dismissal of

the defendant's petition, but in doing so, we noted that the

court was not required to recharacterize the defendant's habeas
corpus petition as a postconviction petition under the Act.

Purnell, 356 Ill. App. 3d at 528-29, 825 N.E.2d at 1238-39.    We

pointed out that, although prior cases (such as Sturgeon) held

that a trial court was so required, the General Assembly amended

the Act in 1997 through the passage of Public Act 89-609 (Pub.

Act 89-609, §5, eff. January 1, 1997 (1997 Ill. Laws 2673, 2674))

to add subsection (d) to section 122-1 of the Act, which states

as follows:

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               "A person seeking relief by filing a

          petition under this [s]ection must specify in

          the petition or its heading that it is filed

          under this [s]ection.    A trial court that has

          received a petition complaining of a convic-

          tion or sentence that fails to specify in the

          petition or its heading that it is filed

          under this [s]ection need not evaluate the

          petition to determine whether it could other-

          wise have stated some grounds for relief

          under this [a]rticle."    725 ILCS 5/122-1(d)

          (West 2004).

We further commented upon section 122-1(d) of the Act, as fol-

lows:

          "Because [the 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.

               The language of section 122-1(d) sug-

          gests that although a trial court need not

          evaluate a petition that does not specify it

          is being filed under the Act to determine

          whether it could otherwise have stated some

          grounds for relief under the Act, the court


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           still has discretion to do so.   However, that

           course of action is one a trial court should

           take only in unusual and compelling circum-

           stances, none of which are present in this

           case."   Purnell, 356 Ill. App. 3d at 528-29,

           825 N.E.2d at 1238.

           Since our decision in Purnell, the Supreme Court of

Illinois has twice addressed the ability of a trial court to

recharacterize a pleading as a postconviction petition even

though it is not so labeled.     In People v. Shellstrom, 216 Ill.

2d 45, 53, 833 N.E.2d 863, 868 (2005), the supreme court recog-

nized that although trial courts have the authority to

recharacterize pleadings under section 122-1(d) of the Act, they

are under no obligation to do so.    In addition, the court held as

follows:

                "[W]hen a circuit court is recharacter-

           izing as a first postconviction petition a

           pleading that a pro se litigant has labeled

           as a different action cognizable under Illi-

           nois law, the circuit 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 suc-

           cessive postconviction petitions, and (3)


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            provide the litigant an opportunity to with-

            draw the pleading or to amend it so that it

            contains all the claims appropriate to a

            postconviction petition that the litigant

            believes he or she has."    Shellstrom, 216

            Ill. 2d at 57, 833 N.E.2d at 870.

            In People v. Pearson, 216 Ill. 2d 58, 66, 833 N.E.2d

827, 830-31 (2005), the supreme court rejected the defendant's

argument that the trial court erred by recharacterizing his

section 2-1401 petition for relief from judgment (735 ILCS 5/2-

1401 (West 2004)) as a postconviction petition.     However, the

court also held that the three steps required of trial courts

under Shellstrom also applied to successive postconviction

pleadings.    Pearson, 216 Ill. 2d at 68, 833 N.E.2d at 832.

            After considering Shellstrom and Pearson, as well as

decisions from the appellate court addressing section 122-1(d),

we adhere to our holding in Purnell that, although trial courts

have the authority to consider a defendant's pleading as a

postconviction petition, trial courts should be hesitant to use

this authority and do so only in "unusual and compelling circum-

stances."    Purnell, 356 Ill. App. 3d at 529, 825 N.E.2d at 1238.
            In so holding, we note the following.   Since the

enactment of section 122-1(d) of the Act, no case has held that a

trial court erred by failing to recharacterize a defendant's

petition as a postconviction petition.     On the other hand,

several cases demonstrate the challenges awaiting a trial court


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that chooses to do so.   See, for instance, Shellstrom, 216 Ill.

2d at 58, 833 N.E.2d at 871 (trial court erred by failing to

notify the defendant prior to recharacterizing the defendant's

postconviction petition of the consequences of the court's taking

that action); Pearson, 216 Ill. 2d at 68, 833 N.E.2d at 832

(trial court erred by recharacterizing the defendant's petition

without following Shellstrom); People v. Marino, 349 Ill. App. 3d

197, 200, 812 N.E.2d 55, 57 (2004) ("to the extent that the

[trial] court treated defendant's [mandamus] petition as a

postconviction petition in summarily denying it, the court

erred").

           In addition, the intent of the legislature in enacting

section 122-1(d) seems 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 a recharacterization could fairly

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

pleading made no reference to the Act.    Given (1) the enactment

of section 122-1(d) and (2) the procedural hurdles a trial court

faces when recharacterizing a defendant's pleading as a

postconviction petition, we conclude that our advice to trial

courts that recharacterization should occur only in unusual and

compelling circumstances remains sound.

           We also take judicial notice that hundreds of prison

inmates every year manage to comply with the pleading require-

ments of the Act when it is their intent to file a petition

                                - 7 -
thereunder.

           Finally, not recharacterizing a pleading as a

postconviction petition essentially costs the defendant nothing--

that is, the defendant (if he really wishes to file a post-

conviction petition under the Act) may still do so.   For in-

stance, in this case, affirming the trial court's dismissal of

defendant's habeas corpus petition will not bar defendant from

later filing a postconviction petition.

          B. The Trial Court's Recharacterization Decision

           Citing Purnell, defendant concedes that the trial court

was not required to recharacterize his habeas corpus petition as

a postconviction petition, but he argues that the court should

have done so nonetheless.   Specifically, he contends that, "In

this case, fundamental fairness suggests that the court should

have [recharacterized his petition because], otherwise, defen-

dant's claims would go completely unheard."   We are not per-

suaded.

           In Shellstrom, the supreme court made clear that after

the enactment of section 122-1(d) of the Act, a trial court was

neither required to--nor prohibited from--recharacterizing a

defendant's petition that contains allegations that are cogniza-

ble under the Act as a postconviction petition.   Thus, a trial

court's decision regarding recharacterization is addressed to its

sound discretion and will be reviewed under an abuse-of-discre-

tion standard.   Accordingly, we will not reverse such a decision

unless it was unreasonable, or "'no reasonable person would take

                               - 8 -
the view adopted by the trial court.'"      People v. Johnson, No. 4-

04-0460, slip op. at 10 (December 4, 2006), ___ Ill. App. 3d ___,

___ N.E.2d ___, ___, quoting People v. Sutherland, No. 99047,

slip op. at 67 (September 21, 2006), ___ Ill. 2d ___, ___, ___

N.E.2d ___, ___, quoting People v. Hall, 195 Ill. 2d 1, 20, 743

N.E.2d 126, 138 (2000).

            In this case, other than defendant's bare assertion

that "fundamental fairness" suggests that the trial court should

have recharacterized his habeas corpus petition as a

postconviction petition, defendant has provided us with no cogent

argument that the court abused its discretion by not doing so.

Clearly, the circumstances of this case are far from "unusual and

compelling."    We thus conclude that the court did not abuse its

discretion.

                          III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.    As part of our judgment, we grant the State's request

that defendant be assessed $50 as costs for this appeal.

            Affirmed.

            MCCULLOUGH and MYERSCOUGH, JJ., concur.




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