No. 2--02--0879

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE McLAREN delivered the opinion of the court:

Defendant, Sean R. Helgesen, appeals the summary dismissal under the Post-ConvictionHearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2002)) of his "Motion to Vacate VoidJudgment." Defendant contends that the trial court should have treated the motion as a petition undersection 2--1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2--1401 (West 2002)), whichcontains no provisions for summary dismissal. In the alternative, he contends that we must reversethe dismissal because the court failed to adhere to the procedural requirements of the Act. Becausewe hold that the court had the discretion to treat the motion as a postconviction petition and that theprocedural irregularities in the proceedings under the Act were not reversible error, we affirm thejudgment of the trial court.

A grand jury indicted defendant on 10 counts of first-degree murder (720 ILCS 5/9--1(a)(1),(a)(2) (West 1992)). The charges arose out of the April 17, 1993, stabbing deaths of Peter Roblesand Diana Robles. Five counts of the indictment alleged that defendant slashed and stabbed PeterRobles with a knife, causing his death, and the other five counts alleged that defendant slashed andstabbed Diana Robles with a knife, causing her death, with the counts otherwise varying only as todefendant's alleged mental state. The State's Attorney and the foreperson of the grand jury signed theindictment after the tenth count. A jury found defendant guilty on all counts, rejecting his insanitydefense. The court found that the counts merged to one for each victim (720 ILCS 5/9--1(a)(1)(West 1992)), and on June 14, 1995, the court sentenced defendant to natural life in prison becausehe had been found guilty of murdering more than one victim. On direct appeal, defendant contendedthat the court had erred in making certain comments during voir dire, in denying his motion for amistrial after the State asked an objectionable question of one of defendant's expert witnesses, andin admitting into evidence the statement he made to police. He also argued that the court abused itsdiscretion in admitting certain gruesome exhibits. We affirmed the convictions. People v. Helgesen,No. 2--95--0735 (1997) (unpublished order under Supreme Court Rule 23).

Defendant filed a pro se petition for relief under the Act, contending that his sentence violatedthe principles of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). He stated that he had received an "extended term" because the crimes were accompanied by brutaland heinous behavior indicative of wanton cruelty, and that the State did not prove this beyond areasonable doubt. The trial court dismissed his petition as frivolous and patently without merit. Itnoted that the basis for the life sentence was that defendant had been found guilty of murdering morethan one person, and that a jury had found this fact beyond a reasonable doubt. Defendant did notappeal this decision.

On May 9, 2002, defendant filed a document entitled "Motion to Vacate Void Judgment"along with a collection of supporting documents, including a motion for appointment of counsel. Hecontended that his "sentencing judgment" was void because (1) the indictment was faulty in that itfailed to set forth the offenses with which defendant was charged; (2) if the indictment was valid, itcharged defendant with only one count of murder; and (3) it failed to allege the facts allowing anenhanced penalty.

At a hearing on this filing, the court stated that it had received a motion to vacate a voidjudgment and asked the State if it wished to file a response. The State did not do so. The courtappointed the public defender to represent defendant. At a later court date, a discussion took placeamong the court, the public defender, and the State's Attorney as to how the court shouldcharacterize the filing. The public defender also raised a concern that she might have a conflict ofinterest in her representation of defendant. The State's Attorney told the court that "with regard tothe failure to allege [a basis for] the extended-term extraordinary penalty, *** the Defendant wascharged with and convicted of the murder of two people. So *** that's the only available sentence***. And I believe it falls within the realm of Apprendi." The court responded that it agreed. Thecourt then announced that, because the motion raised a constitutional issue, the court would treat itas a postconviction petition. The court set a date for an initial ruling.

On the date for the ruling, the court stated that, because defendant filed the motion sevenyears after it sentenced him, it "ha[d] to" consider the motion as a postconviction petition. It thenfound that defendant had not alleged any fundamental unfairness in the first postconvictionproceedings such that defendant would be entitled to file a second petition. It also found that theindictment was proper in form. Further, there was no difficulty regarding the life sentence becausedefendant had been charged with and found guilty of the murder of two persons, and thus thesentence met the requirements of Apprendi. The court dismissed the motion pursuant to section 122--2.1 of the Act (725 ILCS 5/122--2.1 (West 2002)), which directs trial courts to summarily dismisspostconviction petitions that they have found on independent review to be frivolous and patentlywithout merit. Its written order stated only that the basis for dismissal was that the filing was asecond postconviction petition.

Defendant then filed a pro se motion to reconsider, arguing, inter alia, that the court had erredin recharacterizing the motion as a postconviction petition and in giving him inadequate time toprepare his motion to reconsider by failing to serve the dismissal order by certified mail. The courtdenied the motion.

Defendant now appeals, contending that it was error for the court to recharacterize the motionas a postconviction petition, when it should have considered it as a petition pursuant to section 2--1401 of the Code. Alternatively, defendant contends that the procedural irregularities in effecting thefirst-stage dismissal require us to remand for the second-stage review under the Act. Defendant doesnot challenge the court's substantive findings, so we consider only the procedural issues. Whetherthe trial court complied with the applicable procedure is a question of law and our review is de novo. See Woods v. Cole, 181 Ill. 2d 512, 516 (1998).

We conclude that the trial court was entitled to construe the motion to vacate a void judgmentas a postconviction petition and that the court's application of the Act, although imperfect, did notconstitute reversible error.

As defendant seems to acknowledge, to obtain jurisdiction to address the motion, the trialcourt had to recharacterize it. In People v. Flowers, 208 Ill. 2d 291, 308 (2004), our supreme courtheld that a litigant's raising of a voidness claim does not serve to revest a court with jurisdiction thatit has otherwise lost. The litigant may therefore raise such a claim only when a proceeding is properlypending before the court. Flowers, 208 Ill. 2d at 308. Because section 2--1401 abolished allcommon-law methods of attacking void judgments (735 ILCS 5/2-1401(a) (West 2002); Sarkissianv. Chicago Board of Education, 201 Ill. 2d 95, 104 (2002)), defendant's freestanding motion did notinvoke the trial court's jurisdiction. Thus, to consider it at all, the court had to construe defendant'smotion as a pleading initiating some type of statutory collateral proceeding.

Defendant contends that the only possible recharacterization of his motion was as a section2--1401 petition. At first glance, this contention appears to have considerable merit. In Sarkissian,our supreme court determined that an order vacating a default judgment as void for improper serviceis final and appealable. In doing so, the court stated that a motion to vacate a void judgment isproperly recognized as a section 2--1401 petition. The court reasoned that, beyond section 2--1401,nothing in the Code "make[s] provision for the filing of a motion to challenge a judgment on voidnessgrounds." Sarkissian, 201 Ill. 2d at 105. That is, in a civil context, section 2--1401 is generally theonly available method of collateral attack. However, in a criminal case, the Act provides a secondoption.

In People v. Thompson, 209 Ill. 2d 19 (2004), the supreme court established that a trial courtmust consider a voidness claim that is raised in a postconviction petition. Thus, as a vehicle forbringing a voidness claim in a criminal case, the Act is a fully equal alternative to section 2--1401 ofthe Code. Accordingly, Sarkissian did not constrain the trial court to treat defendant's motion as asection 2--1401 petition.

As defendant's voidness claim was cognizable under the Act, the Act allowed the trial courtto treat his motion as a postconviction petition. The Act provides:

"A trial court that has received a petition complaining of a conviction or sentence that failsto specify in the petition or its heading that it is filed under [the Act] need not evaluate thepetition to determine whether it could otherwise have stated some grounds for relief underthis Article." (Emphasis added.) 725 ILCS 5/122--1(d) (West 2002).

If the court need not do so, then, by the strongest of implications, it also may do so. Thus, the trialcourt did not err in construing defendant's motion as a petition under the Act.

Defendant contends that it would be unfair to require him to comply with the Act when hedid not seek to invoke it. However, in Thompson, the supreme court determined that a voidnessclaim in a postconviction petition "does not depend [on the Act] for its viability." Thompson, 209Ill. 2d at 27. Consequently, even if the petition violates the technical requirements of the Act, the trialcourt must consider the voidness claim on its merits.

We note that, in its written order, the trial court indicated that it dismissed defendant's motionsolely because, as a postconviction petition, it was successive. As the court was required to addressdefendant's voidness claim on the merits, the successiveness of the petition was an improper basis fordismissal. However, in its oral ruling, the court did reach the merits of defendant's claim. Thus, thecourt did not improperly dismiss the voidness claim for technical violations of the Act. See Peoplev. Smith, 242 Ill. App. 3d 399, 402 (1993) ("When the oral pronouncement of the court and thewritten order are in conflict, the oral pronouncement of the court controls").

We note that a Fourth District case, People v. Harper, 345 Ill. App. 3d 276 (2003), writtenwithout the benefit of Thompson, reaches a conclusion opposite ours. In Harper, the defendant fileda " 'Motion to Vacate [a] Void Sentence and for Resentencing' " in which he alleged that his twoconsecutive sentences were void because, in aggregate, they exceeded the maximum permissiblesentence. Harper, 345 Ill. App. 3d at 285-86. The trial court ruled against the defendant on themerits. Nevertheless, on appeal, the State, construing the motion as a postconviction petition, arguedthat the dismissal was proper because the filing did not allege a violation of a constitutional right, butonly of a statutory right, which was not cognizable under the Act. Harper, 345 Ill. App. 3d at 280. The appellate court disagreed, reasoning as follows:

"[T]he supreme court would continue to hold, as it has always held, that mere violations ofstatutory law have no remedy under the Act; but because void sentences can be challengedat any time, either directly or collaterally [citation], and because the substance, rather than thetitle, of a motion determines what it is [citation], we conclude the supreme court would takethe additional step of construing the [motion to vacate a void sentence] as a [petition] undersection 2--1401 of the Code." Harper, 345 Ill. App. 3d at 284.

Although the Harper court correctly stated that statutory violations have no remedy under theAct, the Thompson court later held that a trial court must review a voidness claim in a postconvictionpetition. Accordingly, the supreme court would allow such a claim to be treated under the Act, andwould not require treatment under section 2--1401.

We recognize that, because the trial court thought that it "ha[d] to" consider defendant'smotion as a postconviction petition, it did not realize that it had the discretion to treat the motion asa section 2--1401 petition. This could be viewed as an abuse of discretion, as a "trial court's refusalto exercise its discretion due to its belief that it has none is error." Allstate Insurance Co. v. Rizzi,252 Ill. App. 3d 133, 137 (1993). However, when a court's error as to the scope of its discretionresults in its making a choice that falls within the range of its true discretion, the error does notmandate reversal unless the litigant shows that he or she was prejudiced. See Allstate Insurance Co.,252 Ill. App. 3d at 137-38. Here, defendant alleges no prejudice other than the nature of theprocedure itself.

That said, we caution that a trial court does not have unlimited discretion to construe a"motion to vacate void judgment" as a postconviction petition. As the Harper court correctly noted,it is a motion's substance, not its title, that controls its identity. Harper, 345 Ill. App. 3d at 284. If,as here, a "motion to vacate void judgment" raises only a voidness claim, the court may address itsmerits under the Act. However, if it raises additional claims that are cognizable only under section2--1401, for example, the motion, in substance, is a section 2--1401 petition. The court would abuseits discretion if it were to construe the motion as a postconviction petition and address the voidnessclaim on the merits, but dismiss the remaining claims either because they are not cognizable under theAct or because of technical violations of the Act.

Defendant's alternative argument is that the trial court's failure to comply with the proceduralrequirements of the Act constituted reversible error. We observe that the court's application of theAct involved some procedural irregularities. However, none of them is a basis for reversal.

Under the Act, a postconviction proceeding not involving the death penalty has three stages:

"In the first stage, the defendant files a petition and the circuit court determines whether it isfrivolous or patently without merit. At this stage, the Act does not permit any furtherpleadings from the defendant or any motions or responsive pleadings from the State. Instead,the circuit court considers the petition independently, without any input from either side. ***If the circuit court does not dismiss the petition ***, it is then docketed for furtherconsideration.

The proceeding then advances to the second stage. At the second stage, the circuitcourt appoints counsel to represent an indigent defendant. [Citation.] Counsel may file anamended post-conviction petition. Also, at this second stage, the Act expressly provides thatthe State may file a motion to dismiss or answer to the petition. [Citation.] *** If the circuitcourt does not dismiss or deny the petition, the proceeding advances to the third stage. Atthis final stage, the circuit court conducts an evidentiary hearing." People v. Gaultney, 174Ill. 2d 410, 418 (1996). Defendant initially contends that the court's first-stage dismissal was improper because theState had addressed the merits of defendant's petition. Under Gaultney, a first-stage dismissal isreversible error when the record shows that the trial court "sought or relied on input from the Statewhen determining whether the petition [was] frivolous." Gaultney, 174 Ill. 2d at 419. However,improper input is not per se grounds for reversal. A reviewing court must reverse only when therecord shows that the input caused the court to render a less-than-independent decision. SeeGaultney, 174 Ill. 2d at 419-20.

Here, before the court dismissed the petition, the State addressed the merits of one ofdefendant's contentions: "With regard to the failure to allege [a basis for] the extended-termextraordinary penalty, *** the Defendant was charged with and convicted of the murder of twopeople. So *** that's the only available sentence ***. And I believe it falls within the realm ofApprendi." However, the record makes clear that the court did not solicit this statement. Further,the State's assertion did not deprive defendant of an independent review of his petition; indeed, in itsoral ruling, the court stated grounds for dismissal that went beyond Apprendi. See People v.Anderson, 287 Ill. App. 3d 1023, 1030 (1997).

Defendant also contends that the first-stage dismissal was improper because it followed theappointment of counsel. We acknowledge that, in standard postconviction proceedings, the Actprovides for the appointment of counsel only after the petition has survived the first stage. SeePeople v. Fiedler, 303 Ill. App. 3d 236, 237-38 (1999); People v. Oury, 259 Ill. App. 3d 663, 668(1994). Here, however, the court did not appoint counsel to serve as postconviction counsel; instead,counsel was appointed only to assist the court in recharacterizing defendant's motion. Once the courtdetermined that it would treat the motion as a postconviction petition, counsel's involvement ceased. Thus, this was not an improper appointment of counsel at the first stage of the postconvictionproceedings; in effect, the appointment ended before the first stage had even begun.

We do not think that counsel automatically became postconviction counsel when the courtdecided to treat defendant's motion under the Act. No authority requires such a conclusion, and itwould not be good policy to discourage the appointment of counsel for the limited purpose ofassisting the court in recharacterizing a defendant's filing when a recharacterization is required. Thus,the court's appointment of counsel did not taint its first-stage dismissal under the Act.

Finally, defendant contends that the dismissal must be reversed because his appointed counselfailed to comply with the requirements of Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). However, by its terms, that rule applies only to postconviction counsel. As we have determined thatdefendant's counsel was not postconviction counsel, defendant's claim is without merit.

For the reasons stated, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

HUTCHINSON and GILLERAN JOHNSON, JJ., concur.