IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

Subsequently, the defendant filed a postconviction petition. The defendant alleged that the special prosecutors in his casefrom the State's Attorneys Appellate Prosecutor (SAAP) had noauthority to prosecute his case, and thus his convictions andsentences were void. The trial judge summarily dismissed thepetition, and the defendant now appeals. We affirm.

BACKGROUND

In 1990, the defendant was charged, in a 54-countindictment, with multiple counts of aggravated criminal sexualassault, criminal sexual abuse, aggravated criminal sexual abuse,child pornography, and maintaining a public nuisance. Thedefendant entered into a fully negotiated plea agreement,pleading guilty to 12 of those counts. He was then sentenced to25 years' imprisonment.

In 1994, the defendant filed a postconviction petition thatwas dismissed on the State's motion. On appeal, this courtreversed and remanded defendant's cause for an evidentiaryhearing. People v. Cichon, No. 3--94--0652 (1995) (unpublishedorder under Supreme Court Rule 23). On remand, the trial courtgranted the postconviction petition, vacated the plea andsentences, and reinstated all the charges of the indictment.

In 1998, the defendant's motion to dismiss the case ondouble jeopardy grounds was denied by the trial court. Thatdecision was later affirmed on appeal. People v. Cichon, No. 3--98---0704 (1999) (unpublished order under Supreme Court Rule 23). Later, because of a conflict, the new State's Attorney ofLa Salle County filed a motion to have the SAAP appointed asspecial prosecutor in the new trial. That motion was granted,and the case proceeded to a jury trial in August of 2000.

The defendant was convicted of four counts of aggravatedcriminal sexual assault, two counts of criminal sexual assault,one count of aggravated criminal sexual abuse, and three countsof child pornography. The defendant was subsequently sentencedto an aggregate term of 105 years' imprisonment. On a directappeal, this court affirmed the sentences, but modified themittimus to show that the sentences imposed on the childpornography convictions were to be served concurrently. Peoplev. Cichon, No. 3--00--0795 (2002) (unpublished order underSupreme Court Rule 23).

In December of 2002, the defendant filed a pro sepostconviction petition alleging that his convictions andsentences were void because the special prosecutors appointed inhis case lacked the authority to prosecute him. The trial judgesummarily dismissed the petition, and the defendant appealed.

ANALYSIS

On appeal, the defendant submits that the trial court erredby dismissing his postconviction petition at the first stage ofthe proceedings.

Postconviction proceedings have three stages. People v.Gaultney, 174 Ill. 2d 410, 675 N.E.2d 102 (1996). In the firststage, the trial court reviews the petition within 90 days of itsfiling and may dismiss it if the court determines that it isfrivolous or patently without merit. 725 ILCS 5/122--2.1(a)(2)(West 2002). To survive dismissal at the first stage, a pro sedefendant need only raise the gist of a meritoriousconstitutional claim. Gaultney, 174 Ill. 2d 410, 675 N.E.2d 102. We review the first-stage dismissal of a postconviction petitionde novo. People v. Coleman, 183 Ill. 2d 366, 701 N.E.2d 1063(1998).

The defendant argues that the attorneys from the SAAP lackedauthority to prosecute him. In support of this argument, thedefendant cites section 4.01 of the State's Attorneys AppellateProsecutor's Act (SAAP Act) (725 ILCS 210/4.01 (West 2000)). Though subsequently amended to provide broader authority to SAAPattorneys (see 725 ILCS 210/4.01 (West 2002)), at the time of thedefendant's trial that section provided only that, "[t]he [SAAP]may also assist County State's Attorneys in the discharge oftheir duties under the Illinois Controlled Substances Act, theNarcotics Profit Forfeiture Act, and the Illinois Public LaborRelations Act." 725 ILCS 210/4.01 (West 2000). The defendantcontends that because SAAP attorneys were statutorily limited toparticipating in specific trial situations, and because hisprosecution did not involve any of those specific situations, theparticipation of the SAAP attorneys in his case was improper.

The defendant further contends that case law from the FifthDistrict of the Appellate Court supports his position. In Peoplev. Ward, 326 Ill. App. 3d 897, 762 N.E.2d 685 (2002), an SAAPattorney took over the prosecution of a criminal prosecution inwhich the charges originated under the Cannabis Control Act (720ILCS 550/1 et seq. (West 1996)) and not the Illinois ControlledSubstances Act (720 ILCS 570/100 et seq. (West 1996)). The courtinterpreted the language cited above and determined that thestatutory listing of specific trial matters in which SAAPattorneys could appear meant that those same attorneys werewithout authority to assist with any other type of trial matter. Ward, 326 Ill. App. 3d 897, 762 N.E.2d 685. Therefore, the courtfound the defendant's prosecution void, vacated his convictions,and remanded the cause for new proceedings. Ward, 326 Ill. App.3d 897, 762 N.E.2d 685.

We do not find that either the statute cited above or thedecision in Ward mandate a similar disposition in this case. Tobegin with, we note that section 3--9008 of the Counties Codeprovides:

"[w]henever the State's attorney is sick orabsent, or unable to attend, or is interested in anycause or proceeding, civil or criminal, which it is ormay be his duty to prosecute or defend, the court inwhich said cause or proceeding is pending may appointsome competent attorney to prosecute or defend suchcause or proceeding, and the attorney so appointedshall have the same power and authority in relation tosuch cause or proceeding as the State's attorney wouldhave had if present and attending to the same." 55ILCS 5/3--9008 (West 2000).

Therefore, the trial court has independent statutoryauthority to appoint an attorney as a special prosecutor. Inthis case, a section 3--9008 motion alleging a conflict was bothmade and granted.

In Ward, by contrast, no motion was made to the trial courtfor an SAAP attorney to be appointed a special prosecutor. Ward,326 Ill. App. 3d 897, 762 N.E.2d 685. Therefore, Ward is notcontrolling because, as the Fifth District later recognized, thatcase did not require the court to "decide whether a court'sstatutory power to appoint a special prosecutor could be used toappoint [an SAAP] attorney." People v. Woodall, 333 Ill. App. 3d1146, 1151, 777 N.E.2d 1014, 1018 (2002). Nevertheless, the Wardcourt seemed to indicate that if it had to decide that question,it would have answered in the affirmative. Ward, 326 Ill. App.3d at 902, 762 N.E.2d at 690 ("while the State is correct that atrial court is vested with discretion to permit counsel to assista State's Attorney, the fact remains that the trial court mustspecifically appoint such an attorney").

Indeed, the Fifth District took a step further inrecognizing the broad power section 3--9008 grants the trialcourt to appoint an SAAP attorney as a special prosecutor when itagain addressed the issue in Woodall, 333 Ill. App. 3d 1146, 777N.E.2d 1014. Although in that case no motion was filed in thetrial court seeking such an appointment, the court neverthelessaddressed the trial court's power under section 3--9008. Thecourt noted that a number of attorneys worked for the SAAP part-time and brought a wealth of experience to their work for theState. The court noted that "[a]s part-time [SAAP] lawyers, theycould be appointed pursuant to the statutory authorityestablished by section 3-9008 of the Counties Code [citation],just like any other licensed attorney engaged in privatepractice." Woodall, 333 Ill. App. 3d at 1152, 777 N.E.2d at1019.

Thus, the Fifth District would allow the trial court togrant a section 3--9008 motion seeking the appointment of a part-time SAAP attorney as a special prosecutor. While we agree withthe this holding so far as it goes, we do not see the need tolimit that power to part-time SAAP attorneys.

We find that section 3--9008 provides the trial court withsufficient, independent authority to appoint as a specialprosecutor any uninterested, licensed attorney. The limits foundin the SAAP Act notwithstanding, that includes the authority toappoint any SAAP attorney. See also People v. Eaglin, 224 Ill.App. 3d 668, 586 N.E.2d 1280 (1992) (despite statutoryprohibition on State's Attorney accepting outside employment,trial court properly appointed State's Attorney from neighboringcounty as a special prosecutor pursuant to section 3--9008). Thus, we rule that the trial court did not err as a matter of lawby dismissing the defendant's petition at the first stage of theproceedings.

CONCLUSION

For the foregoing reasons, we affirm the judgment of theLa Salle County circuit court dismissing the defendant'spostconviction petition.

Affirmed.

SLATER and BARRY, JJ., concur.