People v. Noel
State: Illinois
Court: 3rd District Appellate
Docket No: 3-95-0754
Case Date: 08/15/1997
No. 3--95--0754
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 93--CF--318
)
THOMAS NOEL, ) Honorable
) Robert Manning,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE SLATER delivered the opinion of the court:
_________________________________________________________________
Defendant Thomas Noel was convicted of robbery and was
sentenced to a term of eight years imprisonment. Defendant's
conviction and sentence were subsequently affirmed by this court.
People v. Noel, No. 3--93--0794 (1995) (unpublished order under
Supreme Court Rule 23). On February 10, 1995, defendant filed a
pro se petition for post-conviction relief. On August 8, 1995,
the trial court appointed counsel to represent the defendant and
scheduled a hearing for those matters raised in paragraph 4(a) of
defendant's petition. With respect to paragraph 4(b) of the
petition, the court ruled that defendant was merely arguing
factual matters that had been previously determined by the jury
and therefore no hearing would be conducted concerning those
allegations. Following a hearing on October 12, 1995, the trial
court denied defendant's petition for post-conviction relief.
On appeal, defendant contends that the trial court erred in
summarily dismissing paragraph 4(b) of his petition. Defendant
maintains that such a dismissal is only proper within 90 days of
the date the petition was filed. We agree.
The Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq.
(West 1994)) (the Act) establishes a three-step process for
adjudicating petitions for post-conviction relief:
"First, the circuit court must consider
the petition without input by the State or
further pleadings by the defendant, in order
to ascertain whether it is 'frivolous or
patently without merit.' If the court
concludes that it is, the petition is to be
dismissed. Such an order of dismissal is
appealable.
If the petition is not dismissed as
'frivolous or patently without merit,' the
court must appoint counsel to represent the
defendant (if he or she is indigent), and the
petition moves to the second stage of the
post-conviction petition adjudication
process. At this juncture, counsel must
first be afforded an opportunity to amend the
petition. Thereafter, the petition may be
dismissed or denied without a hearing on the
basis of either a motion to dismiss or answer
filed by the State. An order dismissing or
denying the petition at this stage of the
proceedings also constitutes an appealable
order.
If the petition is not dismissed or
denied at the second stage of the
adjudicatory process, it progresses to the
third and final stage, at which an
evidentiary hearing is held. Following this
hearing, the circuit court will either grant
or deny the relief requested in the
petition." People v. Dredge, 148 Ill. App.
3d 911, 912-13, 500 N.E.2d 445, 446 (1986).
In this case, it appears that the trial court dismissed
paragraph 4(b) of defendant's petition as frivolous or patently
without merit. Such a dismissal is void, however, if it occurs
more than 90 days after the petition was filed. People v.
Porter, 122 Ill. 2d 64, 521 N.E.2d 1158 (1988); 725 ILCS 5/122--
2.1(a) (West 1994). In Porter, the supreme court held that the
language of section 122--2.1 was mandatory and required the trial
court to either dismiss the petition within 30 days or docket it
for further consideration in accordance with sections 122--4
through 122--6 of the Act. The 30 day period has since been
expanded to 90 days. See 725 ILCS 5/122--2.1(a) (West 1994).
The State argues that the trial court did not dismiss
paragraph 4(b) of defendant's petition under section 122--2.1(a).
The State maintains that the court was proceeding in accordance
with section 122--2.1(b), and pursuant to that section "the trial
judge found no need for an evidentiary hearing on the allegations
in paragraph 4(b)."
The problem with the State's position is that section 122--
2.1(b) does not provide for dismissal of a post-conviction
petition. That section merely states:
"(b) 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." 725 ILCS 5/122--
2.1(b) (West 1994).
In other words, if the post-conviction petition is not
dismissed under section 122--2.1(a), the next step is the
appointment of counsel, who "is expected to consult with the
petitioner, review the trial record, and make any necessary
amendments to the petition" (People v. Wallace, 201 Ill. App. 3d
943, 948-49, 559 N.E.2d 539, 542 (1990); 725 ILCS 5/122--4 (West
1994); see also People v. Wilk, 124 Ill. 2d 93, 529 N.E.2d 218
(1988) (once petition is deemed non-frivolous, counsel will be
appointed)). In this case, while counsel was appointed to assist
the defendant, it is clear from the court's order that it did not
consider paragraph 4(b) worthy of further consideration. Thus
the effect of the order was to summarily dismiss paragraph 4(b)
as patently without merit. Such a dismissal, coming more than 90
days after the filing of the petition, was prohibited by Porter.
We therefore reverse the dismissal of paragraph 4(b) of
defendant's petition and remand for further consideration in
accordance with sections 122--4 through 122--6 of the Act.
Defendant has also requested that we reverse the circuit
court's order denying the remainder of his post-conviction
petition. The trial court held an evidentiary hearing regarding
defendant's claim of ineffective assistance of counsel and ruled
that defendant had failed to show that his attorney's alleged
errors would have affected the results of his trial. Defendant
does not argue the merits of his ineffective assistance claim,
but instead contends that the improper dismissal of paragraph
4(b) of his petition rendered any subsequent proceedings void.
The defendant has failed to cite any relevant case law in support
of his position, and we do not believe it is grounded in law or
logic. Our review of the record supports the trial court's
decision and we therefore affirm the denial of paragraph 4(a) of
defendant's post-conviction petition.
Finally, we note that even if the trial court had acted
within 90 days, the procedure employed here was improper. The
Post-Conviction Hearing Act does not authorize partial dismissals
of post-conviction petitions as frivolous or patently without
merit. If some part of the petition is not frivolous, the trial
court should appoint counsel, who can appropriately amend the
petition. Allowing partial dismissal raises serious questions
about the judicial review process, since first stage dismissals
are final and appealable judgments. In the interest of judicial
economy, and to avoid piecemeal litigation, trial judges should
refrain from entering partial summary dismissals.
For the reasons stated above, the judgment of the circuit
court is affirmed in part and reversed in part and remanded.
Affirmed in part and reversed in part; cause remanded.
HOLDRIDGE and HOMER, J.J., concur.
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