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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

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JUSTICE BYRNE delivered the opinion of the court:

Defendant, Deon L. Pearson, appeals from the dismissals of his petition for relief undersection 2--1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2--1401 (West 2000)) and ofhis petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2000)). He contends that the dismissal of his section 2--1401 petition under the procedure set out in the Actwas reversible error. We agree and thus reverse the dismissal of his section 2--1401 petition butaffirm the dismissal of his petition under the Act.

On June 6, 1994, defendant pleaded guilty to first degree murder (720 ILCS 5/9--1(a)(2)(West Supp. 1993)) pursuant to a plea bargain in which the State agreed to recommend a sentencecap of 40 years. The admonishments the court gave defendant did not include the information thathe would be subject to three years' mandatory supervised release. See 730 ILCS 5/5--8--1(d)(1)(West 1992). The court sentenced him to 34 years' imprisonment. On direct appeal, defendantargued that the court abused its discretion in imposing sentence by relying on "the gravity of theoffense" as an aggravating factor. This court affirmed the sentence. People v. Pearson, No. 2--94--1299 (1996) (unpublished order under Supreme Court Rule 23).

On September 22, 1997, defendant mailed to the trial court a document entitled "petition forpost-conviction relief and as an alternative for time cut." He argued, inter alia, that the court hadfailed to properly consider his rehabilitative potential in imposing sentence. The docket sheet statesthat the trial court "heard and denied" the petition on November 12, 1997, with no parties present,and that the clerk sent a copy of the docket entry to defendant. No written order is present in therecord, and we find no entry for this day in the report of proceedings.

On August 12, 2002, defendant mailed to the trial court a document entitled "Petition forRelief from Judgment." The petition requested relief pursuant to section 2--1401 of the Code on thebasis that the court had not adequately admonished defendant regarding his potential sentencebecause it did not inform him that he would have to serve 3 years' mandatory supervised release afterhis 34 years in prison. The trial court summarily dismissed the petition, finding, inter alia, that it was"in the nature of a Petition for Post-Conviction Relief," that defendant was precluded from filing asecond petition, and that his total sentence including the mandatory supervised release did not exceedthe agreed cap. This order was mailed to defendant by certified mail, and the signed receipt card wasplaced in the record. Defendant appeals (No. 2--02--1097), arguing that the summary dismissal wasimproper.

On January 21, 2003, defendant filed in the trial court a document entitled "Amended Petitionfor Post-Conviction Relief or in the Alternative for Sentence Reduction." He alleged that the courthad lost his first petition, and he contended that the court had considered improper aggravatingfactors in imposing sentence. On January 30, 2003, the trial court "denie[d] the defendant's requestfor relief & str[uck] it as well as dismisse[d] it." Defendant appeals this order as well (No. 2--03--0205), but presents no argument for the reversal of the order. We thus affirm the trial court'sjudgment in that appeal, and we consider only the claim in appeal No. 2--02--1097.

There is no question but that the trial court erred in treating defendant's petition under section2--1401 of the Code of Civil Procedure as one under the Post-Conviction Hearing Act. Whether thetrial 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). The Act provides for an initial review in which thetrial court determines, without input from either party, whether the petition is frivolous or patentlywithout merit. If the court so finds, it summarily dismisses the petition without opportunity for thedefendant to answer the trial court's contentions or amend the petition. See People v. Bouzidi, 332Ill. App. 3d 87, 90 (2002). In People v. Gaines, 335 Ill. App. 3d 292, 295-96 (2002), we held thatsummary dismissal is a procedure applicable only to petitions under the Act; it cannot be applied topetitions under section 2--1401 of the Code. No equivalent to summary dismissal exists in the Code.

In Gaines, we reversed the procedurally irregular dismissal of a prisoner's section 2--1401petition. The trial court had appointed the public defender to represent the defendant and had set ahearing date. The State filed a "motion to reconsider," the body of which addressed the merits of thedefendant's petition. Gaines, 335 Ill. App. 3d at 293. At the hearing on the motion, the State arguedthat the court could dismiss the petition sua sponte, and without opportunity for either party torespond, as if it were a postconviction petition. The public defender stated he had no prior notice ofthe motion and was unprepared to respond, and, after argument from the State only, the trial courtdismissed the petition. Gaines, 335 Ill. App. 3d at 294. Because the trial court's procedure deniedthe defendant any meaningful opportunity to respond to what was functionally a motion, we held thatthe dismissal was error. We noted the distinctness of petitions under section 2--1401 and the Act:

"Section 2--1401 and the Act both afford procedures for advancing a collateral challenge toa criminal conviction, but they are separate and distinct remedial provisions. Thus, forexample, while only constitutional claims are cognizable in a postconviction proceeding[citation], this limitation does not apply in proceedings under section 2--1401 [citation].

More importantly, the particular statutory procedures applicable to petitions under theAct do not apply to section 2--1401 proceedings. The Act instructs the trial court toindependently examine a postconviction petition within 90 days after it is filed. [Citation.] *** The court is directed to summarily dismiss the petition if the court finds that it is'frivolous or is patently without merit.' [Citation.] *** The Act provides that after thecourt's summary review counsel may be appointed for indigent defendants. [Citation.] Incontrast, section 2--1401 has no corresponding provision for independent examination by thetrial court, nor is the trial court authorized to summarily dismiss a section 2--1401 petition.Moreover, unlike proceedings under the Act, there is no statutory basis for the appointmentof counsel in a section 2--1401 proceeding." Gaines, 335 Ill. App. 3d at 295-96.The process of judicial review of a petition under the Act--without comment by either party--is asignificant and unusual departure from the adversary process. The legislature has mandated thatdeparture in the specific context of the Act. We see no possible basis for importing such an unusualprocedure into matters governed by the Code of Civil Procedure.

In Gaines, we noted that in proper proceedings on a section 2--1401 petition, the opponentof the petition must file a motion to dismiss or else answer it. Gaines, 335 Ill. App. 3d at 296. Further, "basic notions of fairness dictate that the defendant be afforded notice of, and an opportunityto respond to, any motion or responsive pleading by the State." Gaines, 335 Ill. App. 3d at 296. Here, since we reject the trial court's characterization of defendant's petition as a postconvictionpetition, we must characterize the trial court's action as a sua sponte motion to dismiss. Basic notionsof fairness dictate that defendant be afforded the same notice and opportunity to respond that hewould have had if the State had filed the motion to dismiss. Peterson v. Randhava, 313 Ill. App. 3d1, 12 (2000), citing English v. Cowell, 10 F.3d 434, 437 (7th Cir. 1993). The trial court's actionshere resulted in a complete abrogation of the adversary process. The error could not be clearer.

The State contends that we can nevertheless affirm the dismissal of the section 2--1401petition on the grounds that the petition was meritless and the dismissal thus did not prejudicedefendant. We disagree. In Gaines, we were not faced with this issue because the record on appealwas insufficient to allow us to determine whether there was merit to the issue raised in the defendant'spetition. Gaines, 335 Ill. App. 3d at 296-97. We now conclude that the proceedings by whichdefendant's petition was dismissed were too far removed from those to which he was entitled for usto hold that he suffered no prejudice.

We must reach this issue because we agree with the State that the claim put forward indefendant's petition is meritless. Defendant claims that he did not voluntarily enter his guilty pleabecause the trial court, in violation of Supreme Court Rule 402(a) (177 Ill. 2d R. 402(a)), did notinform him that he was subject to three years' mandatory supervised release upon completion of histerm of imprisonment. We will vacate a guilty plea based on an improper admonition regardingpenalties only if the errors in the admonition prejudiced the defendant. People v. Mendoza, 342 Ill.App. 3d 195, 201 (2003). Here, defendant pleaded guilty pursuant to an agreement by which theState agreed to recommend a sentencing cap of 40 years. The court admonished him that it couldgive him a sentence of "not less than 20 nor more than 60 [years' imprisonment], but although theCourt isn't bound by the State's recommendations, the agreement is to cap it at 40. *** I would notimpose a sentence greater than that." It did not mention a term of mandatory supervised release. Thecourt sentenced him to 34 years' imprisonment, so that his total term, including 3 years' mandatorysupervised release, was less than what the court told him he might receive. Under thesecircumstances, we find it hard to conceive of a way in which he could have been prejudiced by theincomplete admonishment. Adding to the almost certain futility of the petition is the requirement ofsection 2--1401 that the petition "must be filed not later than 2 years after the entry of the order orjudgment" unless "the person seeking relief [was] under legal disability or duress or the ground forrelief [was] fraudulently concealed." 735 ILCS 5/2--1401(c) (West 2002). Defendant filed hispetition eight years after the court entered the judgment. We note, however, that the State mighthave waived the limitations period. See People v. Pinkonsly, No. 94644, slip op. at 6-7 (November20, 2003); People v. Pinkonsly, 331 Ill. App. 3d 984, 986 (2002).

Our determination that the trial court would almost certainly dismiss defendant's petition afterproper proceedings is not enough for us to conclude that he was not prejudiced by the grosslyimproper manner in which his petition was dismissed. We consider the reasoning of the SupremeCourt in Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993), to expressthe difficulty in determining whether a person has been prejudiced by being subject to a fundamentallyincorrect form of proceeding. The Court held that when a trial court had given a jury improperreasonable-doubt instructions, there had been no "jury verdict" within the meaning of the sixthamendment, and that "[t]here is no object *** upon which harmless-error scrutiny can operate."(Emphasis in original.) Sullivan, 508 U.S. at 280, 124 L. Ed. 2d at 190, 113 S. Ct. at 2082. Thus,we can conduct harmless-error analysis only by examining fundamentally proper proceedings andconsidering whether, if we removed the effect of an error, we would obtain the same result. Wherethe error is that the proceedings were of fundamentally the wrong kind, we cannot speculativelyrecreate the right proceedings to determine what should have been the result. A section 2--1401petition invokes an adversarial proceeding brought under the Code. Despite the predictability of theultimate dismissal of this petition, we think that the procedure by which the trial court dismissed itwas simply too far removed from what defendant was entitled to for us to review the matter as ifdefendant had been given notice and an opportunity to answer.

We note that Gaines and our current decision appear to conflict with a Fourth District case,Mason v. Snyder, 332 Ill. App. 3d 834 (2002). In that case, the court held that a trial court candismiss a prisoner's complaint for mandamus as if it were a petition under the Act. (Although Masonconcerned a complaint for mandamus, nothing in the court's reasoning made the decision inapplicableto other civil remedies that a prisoner might seek.) The court held that such power is derived fromthe trial court's inherent power to dismiss sua sponte a complaint for failure to state a cause of action. Mason, 332 Ill. App. 3d at 840. Although we agree that a trial court has such power (e.g., Rhodesv. Mill Race Inn, Inc., 126 Ill. App. 3d 1024, 1028 (1984)), and agree that a dismissal under theconditions described is equivalent to a sua sponte dismissal, we think that the Mason court erred inneglecting to consider the necessity of notice and the opportunity to respond, which were not at issuein the cases cited by the Mason court. Where the absence of notice and the opportunity to respondhas been challenged, our courts have found that they are necessary to due process. See Perry v.Minor, 319 Ill. App. 3d 703, 710 (2001) (reviewing cases where sua sponte dismissals were reversedbecause of insufficient notice or opportunity to respond).

Our conclusion here with regard to defendant's procedural rights also conflicts with anotherFourth District case, People v. Potter, 174 Ill. App. 3d 217 (1988).⁽¹⁾ There, the court upheld thesummary dismissal of a "Petition for Release from Confinement" which the trial court found to be,in substance, a postconviction petition. Potter, 174 Ill. App. 3d at 218-19. The defendant arguedthat he had not intended to file a postconviction petition (and indeed, was unaware that such a modeof relief even existed) and so was ill-prepared to comply with the technical requirements of a petitionunder the Act. Further, the recharacterization put him at risk of waiving any other claims he mighthave included in a document intended to be a petition under the Act. Potter, 174 Ill. App. 3d at 218. Despite this, the court, citing People ex rel. Palmer v. Twomey, 53 Ill. 2d 479 (1973), held that,because petitions under the Act are to be liberally construed, it was proper to treat the petition as oneunder the Act. Potter, 174 Ill. App. 3d at 218-19.

The holding in Potter puts a perverse twist on the teaching of Palmer. In that case, oursupreme court stated:

"It is apparent that the same lack of legal knowledge which causes a prisoner to draftan inadequate post-conviction petition might result in his selecting the wrong method ofcollaterally attacking his conviction. A salutary result, consistent with the intent of the [Act]*** would be achieved if the circuit court, upon finding that a pro se petition, howeverlabeled, and however inartfully drawn, alleged violations of the petitioner's rights cognizablein a post-conviction proceeding, would thereafter, for all purposes, treat it as such. Thispractice would enable the issues to be properly framed and the matter adjudicated in oneproceeding and with finality." Palmer, 53 Ill. 2d at 484.

To the extent that Palmer created a requirement that in some circumstances a trial court treatdocuments containing the substance of a petition under the Act as a petition under the Act, it has nowbeen abrogated by statute. Pub. Act 89--609, eff. January 1, 1997 (adding 725 ILCS 5/122-1(d)). Beyond this, we do not think that the court intended Palmer to authorize recharacterization when itleads only to summary dismissal. Palmer clearly was intended to remove a technical barrier to theprovision of relief under the Act to pro se petitioners. Potter turns the Act into a trap for the unwaryby which the assertion of one constitutional claim can lead to a waiver of any others-- without anyopportunity for the defendant to add claims by amendment when the defendant learns that the natureof the proceeding has changed.⁽²⁾ See Pub. Act 93--493, eff. January 1, 2004 (adding 725 ILCS5/122-1(f), which formalizes the rule that a defendant is generally entitled to file only onepostconviction petition).

We recognize that defendants may use section 2--1401 petitions (or habeas corpus petitionsor mandamus complaints) in an attempt to circumvent the restrictions against multiple postconvictionpetitions. The approach taken in Potter may provide an apparent shortcut to the removal of suchfilings from the trial courts' dockets. It is not an acceptable shortcut. For defendants who, unlike defendant here, have never previously filed postconviction petitions, there is real risk ofunintentionally waiving valid constitutional claims. Our supreme court has stated that the intentionof the Act is to offer a defendant " 'one complete opportunity to show a substantial denial of hisconstitutional rights.' " People v. Free, 122 Ill. 2d 367, 376 (1988), quoting People v. Logan, 72 Ill.2d 358, 370 (1978). Where an unintentional waiver has occurred, there is no completeness, and amajor goal of the Act has been frustrated. Even for defendants who have previously filedpostconviction petitions, we do not accept the expansion of summary dismissal procedure. Section122--2.1 of the Act allows summary dismissal of a postconviction only if the allegations in thepetition, taken as true and liberally construed, fail to present the gist of a constitutional claim. SeePeople v. Edwards, 197 Ill. 2d 239, 244 (2001). We believe that this is the entire scope of thelegislatively created nonadversarial proceeding.

The recharacterization process will inevitably raise issues not within the scope of summarydismissal. At the very least, it should raise the issue of whether the filing was also cognizable in theform the defendant filed it. Here, that would mean that the trial court would need to decide whetherdefendant had shown both a meritorious defense to the charges against him and due diligence inpresenting it. See Pinkonsly, slip op. at 8. Although there would be no difficulty in concluding thatdefendant had not demonstrated the existence of a meritorious defense, this issue is not within thescope of issues considered for summary dismissal. Summary dismissal is so significant a departurefrom the adversary system that we will not expand it in the slightest. When a trial court allows arecharacterized petition to proceed to the second stage, in which it appoints counsel for the defendantand the State can bring a motion to dismiss, there is no such problem, as the proceedings areadversarial and counsel can contest the recharacterization, if appropriate.

For the reasons given, we reverse the judgment of the circuit court of Winnebago County inappeal No. 2--02--1097 and remand the cause for proper proceedings on defendant's section 2--1401petition. In appeal No. 2--03--0205, we affirm.

No. 2--02--1097, Reversed and remanded.

No. 2--03--0205, Affirmed.

HUTCHINSON, P.J., and GILLERAN JOHNSON, J., concur.

1. Yet another Fourth District case, Schlemm v. Cowan, 323 Ill. App. 3d 318 (2001), whichinvolved the dismissal of a petition for habeas corpus, includes dicta taking a position similar to thatin Potter.

2. The same reasoning that leads us to reject Potter governs our interpretation of a passage ofdicta in Pinkonsly:

"The defendant does not argue that the trial court should have considered his section2--1401 petition as a postconviction petition. See People ex rel. Palmer v. Twomey, 53 Ill.2d 479, 484 (1973); People v. Gandy, 227 Ill. App. 3d 112, 139 (1992) ([citing Palmer andPeople v. Riley, 40 Ill. App. 3d 679, 681 (1976) for the proposition that] '[w]here the section2--1401 petition is prepared pro se and alleges a deprivation of constitutional rightscognizable under the Post-Conviction Hearing Act, the trial court is to treat it as such'). Suchan argument would fail because, although his initial petition was pro se, his amended petition,which is the subject of this appeal, was prepared by an attorney and clearly brought undersection 2--1401." Pinkonsly, slip op. at 8.We must read this simply to say only that Palmer does not apply to the facts of the case because anattorney prepared the petition. To read the reference to Gandy as mandating recharacterization ofall pro se documents filed as section 2--1401 petitions as postconviction petitions when they stateclaims that are of constitutional character would twist the remedial character of Palmer and itsprogeny.