People v. Quigley , 365 Ill. App. 3d 617 ( 2006 )

Nos. 2--04--0750 & 2--04--0751 cons. filed: 6/23/06
______________________________________________________________________
________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
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THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 98--CF--1033
)
JAMES P. QUIGLEY, ) Honorable
) Victoria A. Rossetti,
Defendant-Appellant. ) Judge, Presiding.
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THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 98--CF--1178
)
JAMES P. QUIGLEY, ) Honorable
) Victoria A. Rossetti,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________________
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PRESIDING JUSTICE GROMETER delivered the opinion of the court:
Defendant, James P. Quigley, appeals the trial court's summary dismissal of his
petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West
2004)). He argues that we must reverse and remand for further proceedings under the Act
Nos. 2--04--0750 & 2--04--0751 cons.
because the trial court required his petition to meet a standard higher than that necessary
to survive summary dismissal. Assuming that the trial court applied the wrong standard, we
determine that we may apply the proper standard in the first instance. Because defendant
concedes that his petition does not satisfy that standard, we affirm the summary dismissal.
Under the Act, a postconviction proceeding that does not involve the death penalty
consists of three stages. At the first stage, the defendant files a petition and the trial court
has 90 days in which it may review the petition without the input of any party and summarily
dismiss it if it is frivolous or patently without merit. 725 ILCS 5/122--2.1(a)(2) (West 2004);
People v. Jones, 211 Ill. 2d 140, 144 (2004). To survive summary dismissal, the petition
must present only the gist of a constitutional claim. Jones, 211 Ill. 2d at 144. If the petition
advances to the second stage, the defendant may be appointed counsel and may amend
his petition. The State may then move to dismiss it. 725 ILCS 5/122--4, 122--5 (West
2004); People v. Gaultney, 174 Ill. 2d 410, 418 (1996). To survive dismissal at the second
stage, the petition must make a substantial showing of a constitutional violation. People v.
Edwards, 197 Ill. 2d 239, 246 (2001). If the petition advances to the third stage, the trial
court conducts an evidentiary hearing. 725 ILCS 5/122--6 (West 2004); Edwards, 197 Ill.
2d at 246.
Here, defendant filed his petition on April 26, 2004. The trial court summarily
dismissed the petition within 90 days (on June 15, 2004), without the input of any party.
However, although the court determined that the petition was "without merit," the court
added that the petition "failed to make a substantial showing that [defendant's]
Constitutional rights were violated." As noted, a substantial showing of a constitutional
violation is required to survive dismissal at the second stage; to survive summary dismissal,
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a petition must present only the gist of a constitutional claim. Thus, the court's reference to
the substantial-showing standard was inappropriate. Edwards, 197 Ill. 2d at 246.
The State notes that, in Gaultney, the supreme court affirmed a summary dismissal
that included the trial court's finding " 'that [the] Defendant's Petition fails to present a
substantial showing of [a] violation of [the] Defendant's constitutional rights.' " Gaultney,
174 Ill. 2d at 416. The supreme court stated that such language "involves general
terminology that is common in post-conviction proceedings" and added that the trial court
"specifically found that the petition was 'frivolous and patently without merit,' which is the
proper statutory standard for [summary] dismissal." Gaultney, 174 Ill. 2d at 422. We note
that the supreme court made these comments in determining only that the trial court had
not relied on the input of the State. However, the supreme court certainly implied that,
despite the trial court's inappropriate reference to the substantial-showing standard
(Edwards, 197 Ill. 2d at 246), its additional determination that the petition was frivolous and
patently without merit established that the court applied the proper standard. Thus, in this
case, as the trial court similarly found that defendant's petition was "without merit," we
acknowledge the possibility that it applied the proper standard, despite its similarly
inappropriate reference to the substantial-showing standard.
Ultimately, however, whether the trial court applied the proper standard is
immaterial. As the trial court summarily dismissed the petition within 90 days and without
the input of any party, the dismissal was procedurally proper. In People v. Cleveland, 342
Ill. App. 3d 912, 915-16 (2003), which involved a procedurally proper summary dismissal
that was based on an improper ground, we determined that we could affirm the dismissal
on any proper ground. Thus, assuming that the trial court summarily dismissed defendant's
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petition on the improper ground that it fails to make a substantial showing of a constitutional
violation, we may affirm that dismissal if the petition fails to present the gist of a
constitutional claim. As defendant concedes that it does not, we affirm.
Defendant relies on three cases, none of which persuades us that we are required to
reverse and remand for second-stage proceedings under the Act. In People v. Dauer, 293
Ill. App. 3d 329 (1997), the trial court purported to enter a summary dismissal, but it
dismissed the petition beyond the 90-day limitations period. The dismissal was not a
procedurally proper summary dismissal that was based on an improper ground; instead,
because the court did not comply with the procedural requirements of a summary
dismissal, the dismissal was void. See People v. Volkmar, 363 Ill. App. 3d 668, 671 (2006).
Thus, in effect, there was no dismissal for the appellate court to affirm on any proper
ground.
Similarly, in People v. Merritte, 225 Ill. App. 3d 986 (1992), the trial court purported to
enter a summary dismissal, but it dismissed the petition at least partly on the basis of the
State's premature motion to dismiss. Again, the dismissal was not a procedurally proper
summary dismissal on an improper ground; instead, the dismissal was void. See People v.
Magdaleno, 188 Ill. App. 3d 384, 386 (1989).
Finally, defendant cites People v. Reed, 302 Ill. App. 3d 1007 (1999), which requires
a bit more consideration. There, the trial court summarily dismissed the petition, apparently
without any procedural impropriety, but based on its finding that the petition was untimely.
The appellate court determined that the petition was timely; thus, the summary dismissal
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was procedurally proper yet based on an improper ground. 1 Nevertheless, the appellate
court reversed and remanded.
Interestingly, both parties asked the appellate court to review what the trial court
labeled its " 'advisory' " opinion that the petition was without merit. Reed, 302 Ill. App. 3d at
1010. However, the appellate court declined to do so, reasoning that neither the trial court
nor the appellate court could issue an advisory opinion.
We submit that the Reed court was unduly distracted by the term "advisory." The
trial court's ruling that the petition lacked merit was not so much an advisory opinion as it
was an alternative basis for its summary dismissal. Similarly, had the appellate court
reviewed that ruling and found it correct, the court would not have issued an advisory
opinion but simply would have exercised the well-settled principle, which we invoked in
Cleveland, that an appellate court may affirm a trial court's judgment on any proper ground,
even if the trial court relied on a different ground. See Cleveland, 342 Ill. App. 3d at 915.
1
Of course, the supreme court had not yet determined that untimeliness is an
improper ground for summary dismissal even when the petition is actually untimely. See
People v. Boclair, 202 Ill. 2d 89, 99 (2002).
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Thus, to the extent that Reed holds that an appellate court may not affirm on any proper
ground a procedurally proper summary dismissal that was based on an improper ground,
we decline to follow it.
Defendant asserts, bluntly, that our willingness to reverse and remand due to
procedural error but not due to substantive error "makes no sense." According to
defendant, "[i]t obviously is just as important--perhaps more important--that the trial court
be substantively correct as well as procedurally correct in its ruling. And, if procedural error
at the first stage warrants remand for second-stage proceedings, then so too should
substantive error at the first stage." We respectfully disagree. The sense behind our
rationale is that, when a summary dismissal is substantively erroneous, it is merely
erroneous; thus, we may affirm it on a different substantive ground. However, when a
summary dismissal is procedurally erroneous, at least in the contexts of Dauer and
Merritte, it is not merely erroneous but rather is void. As a void judgment is one that the
trial court has no power to enter (People v. Rogers, 364 Ill. App. 3d 229, 246 (2006)), we
see no way that such a judgment could be one that the appellate court has the power to
affirm. Moreover, given a procedural error, we cannot fathom what an alternate procedural
ground would entail.
For the reasons set forth above, the judgment of the circuit court of Lake County is
affirmed.
Affirmed.
BOWMAN and O'MALLEY, JJ., concur.
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