Find Legal Information

Docket No. 89884-Agenda 13-March 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant v. ERNESTO RIVERA, Appellee.

Opinion filed December 6, 2001.

JUSTICE FREEMAN delivered the opinion of the court:

We granted leave to appeal (177 Ill. 2d R. 315(a)) in this casein order to decide whether the circuit court may, during thesummary stage of a post-conviction proceeding, partially dismisssome claims raised in a post-conviction petition while advancingother claims raised in the same petition to the second stage of theproceeding. In this case, the circuit court believed that it couldproceed in such fashion. The appellate court disagreed, holdingthat a "defendant's postconviction petition must survive as awhole or be dismissed as a whole." 315 Ill. App. 3d 454, 458. Wenow affirm the appellate court's judgment in part and remand thecase to that court for further proceedings.

BACKGROUND

After a trial in the circuit court of La Salle County, a juryfound defendant, Ernesto Rivera, guilty of controlled substancetrafficking. 720 ILCS 570/401.1 (West 1992). Defendant receiveda prison sentence of 40 years. He was also fined $1,774,290,which represented the street value of the cocaine involved in thetrafficking. The appellate court affirmed the convictions on directappeal. People v. Rivera, 268 Ill. App. 3d 1124 (1995).

Defendant then filed a pro se petition for post-convictionrelief pursuant to the Illinois Post-Conviction Hearing Act (theAct) (725 ILCS 5/122-1 et seq. (West 1998)). The petition allegedsix violations of defendant's constitutional rights. Specifically,defendant alleged that (i) the interpreter provided to him duringthe trial did not adequately translate the proceedings for him, (ii)the sentencing statute under which he had been sentenced wasunconstitutional, (iii) his prison sentence and street value fine wereexcessive, (iv) the circuit court erred in denying his motion tosuppress, (v) his consent to search was coerced, and (vi) both histrial and appellate attorneys provided him ineffective assistance ofcounsel. The circuit court dismissed claims (ii) through (v) asfrivolous or patently without merit. See 725 ILCS 5/122-2.1 (West1998). However, the court found that defendant had stated the gistof a meritorious claim in both claims (i) and (vi). The courtappointed an attorney to represent defendant and advanced claims(i) and (vi) to the second stage of post-conviction review.

Subsequently, defendant moved pro se to amend his petition,stating that he wanted to add two claims. Defendant argued that hehad been prejudiced by gender bias on the jury and that he hadbeen denied his right to testify in his own behalf. Defendant'sappointed counsel then filed an amended post-conviction petitionon defendant's behalf. This petition alleged incompetence on thepart of defendant's interpreter, ineffective assistance of counsel onthe part of defendant's attorneys and extensive sentencing.

The State moved to dismiss the amended petitions. The circuitcourt dismissed all of the claims except for defendant's contentionthat the interpreter was incompetent. The court ordered that anevidentiary hearing be held as to that issue.

At the conclusion of the evidentiary hearing, the circuit courtfound that defendant had not proved that his interpreter wasincompetent, only that he failed to understand some of theproceedings. The judge further found that defendant had theopportunity to stop the proceedings and ask for clarification ifdefendant so desired. For these reasons, the circuit court denieddefendant post-conviction relief.

Defendant appealed. He argued, as an initial matter, that thecircuit court erred in entering the partial dismissals of his post-conviction petition. The appellate court agreed, holding that theAct does not provide for partial dismissals and that, as a result,defendant's entire petition should have survived to the secondstage. Because the matter did not proceed in that fashion, the courtstated that the cause had to be remanded "for further proceedingsregarding the claims made by the defendant in his pro se petition.The trial court is directed to appoint counsel to represent thedefendant and to proceed as though none of the proceedings thatfollowed the partial dismissal had taken place." 315 Ill. App. 3d at458. This appeal followed.

ANALYSIS

The positions of the parties in this case are relativelystraightforward. The State maintains that the circuit court may,under the Act, summarily dismiss portions of a post-convictionpetition as frivolous or patently without merit because the Actdoes not expressly prohibit such an action. Defendant respondsthat such dismissals are not permitted because the Act neitherexpressly permits nor provides for them. In light of this, thequestion presented in this case is one of statutory interpretationand, as such, our standard of review is de novo. King v. IndustrialComm'n, 189 Ill. 2d 167 (2000).

The Illinois Post-Conviction Hearing Act provides amechanism by which those under criminal sentence in this statecan assert that their convictions were the result of a substantialdenial of their rights under the United States Constitution or theIllinois Constitution or both. See 725 ILCS 5/122-1 et seq. (West1998). Proceedings under the Act are commenced by the filing ofa petition in the circuit court in which the original proceeding tookplace. Prior to November 23, 1983, the Act provided that a post-conviction proceeding was commenced by filing a petition withthe clerk of the court in which the conviction in question tookplace. The clerk was required to docket the petition and bring it tothe attention of the court (Ill. Rev. Stat. 1981, ch. 38, par. 122-1),which would then appoint counsel to represent the petitioner if thepetitioner so requested. Ill. Rev. Stat. 1981, ch. 38, par. 122-4. Atthat point, the State was then required to answer the petition ormove to dismiss it. Ill. Rev. Stat. 1981, ch. 38, par. 122-5.

The General Assembly amended the Act in 1983 by addingsection 122-2.1, which is the section at issue in this case. As aresult of the 1983 amendment, petitioners were no longer entitledto the assistance of counsel in drafting their post-convictionpetitions. When a petitioner, whether under sentence of death ornot, filed a post-conviction petition, the trial court was directed bysection 122-2.1 to determine whether the petition was "frivolous"or was "patently without merit." Ill. Rev. Stat. 1985, ch. 38, par.122-2.1(a). If the trial court found the petition to be frivolous orpatently without merit, the statute directed the trial court todismiss it. Ill. Rev. Stat. 1985, ch. 38, par. 122-2.1(a). If thepetition was not dismissed, the statute directed the trial court toorder that the petition be docketed for further proceedings pursuantto sections 122-4 through 122-6 of the Act. Ill. Rev. Stat. 1985,ch. 38, par. 122-2.1(b). Once so docketed, section 122-4 providedthe means for a trial court to appoint counsel if the court was"satisfied that the petitioner has no means to procure counsel." Ill.Rev. Stat. 1985, ch. 38, par. 122-4. If a petition survived dismissalpursuant to section 122-2.1, the statute directed that the Stateanswer or move to dismiss the petition. Ill. Rev. Stat. 1985, ch. 38,par. 122-5.

Thus, the biggest change wrought to the Act by virtue of the1983 amendment was that counsel was appointed to an indigentpetitioner only after the court initially reviewed the petition andonly if the court did not dismiss the petition on the ground offrivolity. Also, the State was permitted to answer or move todismiss the petition only after the court made an order pursuant tosection 122-2.1.

Further change occurred in 1989, when the General Assemblyamended the newly created section 122-2.1. As a result of the1989 change, the statute now provides that if a post-convictionpetitioner is under sentence of death, the trial court shall appointcounsel to assist the petitioner in preparing the petition if thepetitioner lacks funds to procure counsel. 725 ILCS5/122-2.1(a)(1) (West 1998); see also People v. Brisbon, 164 Ill.2d 236, 242-43 (1995) (discussing the Act's differing proceduresfor prisoners under sentence of death and those sentenced toimprisonment). The amendment also created section122-2.1(a)(2), which currently provides that if a petitioner issentenced to imprisonment and the trial court determines that thepetition is "frivolous" or is "patently without merit," the trial courtshall dismiss the petition. 725 ILCS 5/122-2.1(a)(2) (West 1998).If the petition is not dismissed pursuant to section 122-2.1(a)(2),then the trial court is to "order the petition to be docketed forfurther consideration in accordance with Sections 122-4 through122-6." 725 ILCS 5/122-2.1(b) (West 1998). Accordingly, thetrial court may appoint counsel to an indigent non-capitalpetitioner if the petition survives the summary dismissal stage. See725 ILCS 5/122-4 (West 1998). Therefore, after January 1, 1990,a trial court could no longer dismiss a capital litigant's petition onthe basis of frivolity. However, noncapital litigants still had tosurvive the trial court's frivolity determination in order to furtherproceed under the Act and to receive the appointment of counselif the petitioner lacked funds to procure counsel. It is against thisstatutory background that the issue presented here must beresolved.

In our view, this case presents a simple issue: What should bedone with a noncapital post-conviction petition that containsmultiple allegations-some of which are "frivolous" or "patentlywithout merit" and some of which cannot be said to be either?Does the circuit court, in such situations, have the authority underthe Act to dismiss, summarily, the frivolous or patently withoutmerit allegations and send whatever allegations remain to thesecond stage, at which point counsel is appointed, if necessary,and the State is required to appear? We believe the language of theAct compels us to answer the latter question in the negative.

Section 122-2.1 expressly provides that "if the petitioner issentenced to imprisonment and the court determines the petitionis frivolous or is patently without merit, it shall dismiss thepetition in a written order ***." "If the petition is not dismissedpursuant to this section, the court shall order the petition to bedocketed for further consideration in accordance with Sections122-4 through 122-6." (Emphases added.) 725 ILCS5/122-2.1(a)(2), (b) (West 1998). Clearly, the Act does not speakin terms of dismissing individual claims that are either frivolousor patently without merit; the statute speaks solely in terms of thepetition itself being frivolous or patently without merit, and theAct mandates that if the petition is not dismissed under section122-2.1, then the trial court shall order the petition docketed."Where the language of a statute is clear and unambiguous, a courtmust give it effect as written, without 'reading into it exceptions,limitations or conditions that the legislature did not express.' "Garza v. Navistar International Transportation Corp., 172 Ill. 2d373, 378 (1996), quoting Solich v. George & Anna Portes CancerPrevention Center of Chicago, Inc., 158 Ill. 2d 76, 83 (1994).Under the plain language of the Act, in cases such as this, thecircuit court must docket the entire petition, appoint counsel, if thepetitioner is so entitled, and continue the matter for furtherproceedings in accordance with sections 122-4 through 122-6.The State is then given the opportunity to answer or otherwiseplead.

We further note that section 122-2.1 states that a dismissal ofa petition under that section "is a final judgment." 725 ILCS5/122-2.1 (West 1998). This language would pose a problem if wewere to interpret section 122-2.1 as permitting partial summarydismissals. As our appellate court has recognized, "[a]llowingpartial dismissal raises serious questions about the judicial reviewprocess, since first stage dismissals are final and appealablejudgments." People v. Noel, 291 Ill. App. 3d 541, 544 (1997). Ifa summary dismissal of only portions of a petition were to beviewed as proper under the Act, would the claims that have beenpartially dismissed be immediately appealable or would thequestion of the propriety of that order have to wait until theconclusion of the entire proceeding? Under either scenario, theresult would be piecemeal appellate litigation. Moreover, if, aftera partial summary dismissal is entered, counsel is appointed andcounsel proceeds to redraft the previously dismissed claims, whatreal practical value does the partial summary dismissal serve? Inour view, section 122-2.1 provides for a simplified procedure inorder to ensure that the criminal justice system's limited resourcesare expended where most needed. To permit partial summarydismissals under the Act would only add unnecessary confusion tothe first stage of the post-conviction process and would hamperjudicial administration. We therefore reject the State's contention.

Support for our conclusion that partial summary dismissalsare ill-advised in this context can be found in the legislativehistory of section 122-2.1. Our review of the history reveals thatour construction of the statutory framework of section 122-2.1 notonly conforms to the language of the statute, but is faithful to theintentions of the General Assembly when it enacted the provision.This legislative history demonstrates that the General Assemblydid not intend for anything other than a total and final dismissal tobe had under section 122-2.1 For example, Senator Sangmeister,one of the sponsors of the legislation, told members of the Senatethat the purpose of the amendment was to have a judge look at apetition to determine "whether or not the petition has any merit.Once the judge looks at it and says, 'I don't think this has anymerit' and tosses it out, that's the end of it. If ... if he feels it hasmerit, then he looks to see whether the ... the defendant is indigentand then if he is, he does either appoint the public defender orother counsel ***." (Emphases added.) 83d Ill. Gen. Assem.,Senate Proceedings, May 19, 1983, at 172 (statements of SenatorSangmeister). Similar sentiments were expressed in the Housedebate. Representative Johnson, another sponsor of the legislation,stated that, under the amendment, "[t]he court has to examine thepetition and to determine whether the petition was filed frivolouslyand obviously without merit. If it is filed frivolously and obviouslywithout merit, then those further steps that are necessary to betaken in terms of appointment of counsel and so forth, aren'tnecessary. If, in fact, *** a petition that is not frivolous and hasmerit, then those normal procedures take place." (Emphasisadded.) 83d Ill. Gen. Assem., House Proceedings, June 21, 1983,at 87 (statements of Representative Johnson). RepresentativeJohnson also spoke of how the amendment contemplated aprocedure "where a quick look at the record in the case will showthat the petition is absolutely untrue. There is no need to go to theexpense of appointing a court appointed lawyer, of bringing theindividual back from the penitentiary. It only addresses that typeof petition." (Emphases added.) 83d Ill. Gen. Assem., HouseProceedings, June 21, 1983, at 89 (statements of RepresentativeJohnson). As these comments reveal, the sponsors spoke of endingwith finality those petitions which in their totality are frivolousand patently without merit. Partial summary dismissals, as allowedin this case by the circuit court, do not further these legislativegoals. Moreover, we note that when the General Assemblyamended section 122-2.1 in 1989, it did not add any languagewhich would indicate an intent to depart from the principlesinvoked on the floors of both legislative chambers in 1983. In ourview, the summary dismissal stage of the post-convictionproceeding does nothing more than allow the circuit court to actstrictly in an administrative capacity by screening out thosepetitions which are without legal substance or are obviouslywithout merit.

Our decision today is not without precedent. Although weacknowledge that opinions of the appellate court are not bindingon this court, we do take note that our analysis of this issue isconsistent with that reached by our appellate court. See People v.Patton, 315 Ill. App. 3d 968, 975 (2000); People v. Noel, 291 Ill.App. 3d 541, 544 (1997). Indeed, no published opinion by anyIllinois court of review has reached a contrary interpretation ofsection 122-2.1 on this question. We affirm these appellate courtdecisions by holding today that summary partial dismissals madeduring the first stage of a post-conviction proceeding are notpermitted under the Act.

Having decided that the Act does not allow for partialsummary dismissals, we must next determine the effect of this ruleon this case. As noted previously, the appellate court hereconcluded that the circuit court erred in entering the improperpartial summary dismissal. The court believed that the error hadthe effect of tainting the post-conviction proceedings from thepoint in time that the improper order was entered. As a result, theappellate court believed that the cause had to remanded "forfurther proceedings regarding the claims made by the defendant inhis pro se petition. The trial court is directed to appoint counsel torepresent the defendant and to proceed as though none of theproceedings that followed the partial dismissal had taken place."315 Ill. App. 3d at 458. Simply put, the appellate court believedthat the error in permitting a partial dismissal was so fundamentalthat the entire process needed to be started anew. As a result, theappellate court did not reach any of the remaining issues ofdefendant's post-conviction appeal. While there may be somecases in which remandments for new proceedings are warranted,we do not believe that the record supports sending this case backfor the appointment of counsel and further pleadings.

After the circuit court here entered the partial summarydismissal order, which dismissed four counts of defendant'soriginal petition, defendant filed an amended petition in which heraised additional claims. During that same time, the circuit courtappointed counsel to defendant. Appointed counsel then met withdefendant and discussed, through an interpreter, the various post-conviction claims available to defendant. After these discussions,counsel filed an amended post-conviction petition, which refers tothe previous pleadings and re-alleges some of the claims therein.In open court, counsel indicated that he had mailed the newamendment to defendant for his approval. At a status hearing heldin defendant's presence and with the aid of an interpreter, counselindicated that defendant had reviewed the pleading and thatdefendant believed it should be filed in that manner. The claimswere then litigated-some were dismissed by the circuit court uponmotion by the State, and the sole claim not dismissed was thesubject of a full evidentiary hearing, after which it was denied.Thus, it is difficult to perceive how further proceedings in thismatter will be of any benefit to anyone-defendant was given theopportunity to consult with appointed counsel, to discuss theclaims that had been improperly dismissed, and to re-allege themif he so desired. For these reasons, we do not believe that theproceedings ordered by the appellate court are warranted. Therecord affirmatively shows that defendant was not prejudiced bythe entry of the partial summary dismissal under these facts. We,therefore, vacate that part of the appellate court's judgment thatremanded the matter to the circuit court. In light of thisdetermination, we remand the matter to the appellate court forfurther proceedings on defendant's post-conviction appeal.

CONCLUSION

The appellate court correctly held that partial summarydismissals are not permitted under the Act, and we affirm thatportion of the court's judgment. The appellate court, however,erred in remanding the matter to the circuit court for furtherproceedings on defendant's pro se claims, and we vacate thatportion of the court's judgment. The matter is remanded to theappellate court for proceedings consistent with this opinion.

Appellate court affirmed in part;

vacated in part; cause remanded.

I agree with the result reached today by the majority. It isunnecessary to relitigate the claims summarily dismissed by thecircuit court in the first stage of the post-conviction proceedings.However, it is unnecessary to relitigate the claims summarilydismissed in the first stage because, unlike the majority, I believea circuit court has authority to summarily dismiss portions of thepetition in the first stage of the post-conviction proceeding.

As repeatedly recognized by this court, we must give effect tothe language of the statute as written. People v. Woodard, 175 Ill.2d 435, 443 (1997); Garza v. Navistar InternationalTransportation Corp., 172 Ill. 2d 373, 378 (1996). A plainlanguage approach is a simple approach, which obviates the needto discuss legislative history. People v. Hickman, 163 Ill. 2d 250,261 (1994) (for purposes of construing a statute, courts should firstconsider the statutory language, and where statutory language isclear, it will be given effect without resort to other aids forconstruction). This court has also recognized that, "[a]fundamental principle of statutory interpretation is that we mustgive effect to the entire statutory scheme rather than looking atwords and phrases in isolation ***. [Citation.] In other words,statutes should be construed as a whole, with each provisionevaluated in connection with every other section." PrimecoPersonal Communications, L.P. v. Illinois Commerce Comm'n,196 Ill. 2d 70, 87-88 (2001), citing Michigan Avenue NationalBank v. County of Cook, 191 Ill. 2d 493, 504 (2000); see alsoPeople v. Burpo, 164 Ill. 2d 261, 267 (1995), citing People v.Haywood, 118 Ill. 2d 263, 270 (1987) (courts must giveconstruction that is consistent with the purpose and policies of thestatute); Santiago v. Kusper, 133 Ill. 2d 318, 327 (1990) (courtsmust construe an act so the legislative scheme is harmonious andconsistent in all its parts).

In the instant matter, the Act neither expressly permits norprohibits partial first-stage summary dismissals of a post-conviction petition. It is apparent, however, from a review of theAct as a whole that partial summary dismissals in stage one of thepost-conviction proceedings are consistent with the legislativescheme.

Several provisions of the Act grant a trial judge great latitudeand discretion in post-conviction proceedings. See People v.Wright, 149 Ill. 2d 36, 54 (1992). For instance, section 122-5extends post-conviction trial judges discretion to make any ordersregarding pleadings or amendments that he or she finds proper,and allows the trial judge to determine whether to permit thewithdrawal of the petition upon the petitioner's request. Wright,149 Ill. 2d at 54. Additionally, section 122-6 grants the trial courtdiscretion to receive evidence in support of the petition, such asaffidavits, oral testimony, or depositions. Wright, 149 Ill. 2d at 54.Discretion is a necessary component of the Act, essential toaddress the volume of post-conviction litigation. Moreover,discretion permits the court to meet the needs of each particularpetitioner, and achieve the overall goal of the Act-to provide relieffrom constitutional deprivations. Thus, I believe that partialsummary dismissals in stage one of the proceeding are in accordwith the overall legislative scheme of the Act which providesdiscretion to the trial court.

Additionally, the authority to order partial summarydismissals is a matter of the inherent authority a court possesses tocontrol its own docket, and the proceedings before it, throughorders and actions that are neither authorized nor prohibited by theAct. People ex rel. Daley v. Fitzgerald, 123 Ill. 2d 175, 179-83(1988); see also Sander v. Dow Chemical Co., 166 Ill. 2d 48, 65(1995) (recognizing a trial court's inherent authority to dismiss acause of action with prejudice for violations of court orders). InFitzgerald, the defendant filed a post-conviction petition andissued subpoenas for the taking of discovery depositions ofpersons involved in the original trial proceedings. After the trialcourt denied its motions to block the taking of the depositions, theState sought a writ of mandamus, or, alternatively, a supervisoryorder, from this court to compel the trial court to vacate the ordersgranting discovery. We explained that post-conviction proceedingsare sui generis in nature and, therefore, neither civil nor criminaldiscovery rules apply. Fitzgerald, 123 Ill. 2d at 181. Looking tothe language of the Act, we noted that the Act is silent on whethera trial judge may order the taking of discovery depositions.Fitzgerald, 123 Ill. 2d at 179. However, because review under theAct is limited to a narrow range of constitutional issues that werenot presented in the original proceeding, we held that the trialcourt clearly has inherent authority under the Act to orderdiscovery so that a trial judge to better manage the proceedingsand avoid relitigating issues from the original proceeding.Fitzgerald, 123 Ill. 2d at 183.

Just as the Act is silent on a circuit court's authority to orderdiscovery in post-conviction proceedings, the Act is also silent onthe issue of partial summary dismissals of a post-convictionpetition. Yet, partial summary dismissals permit a court to bettermanage its docket and the proceedings and avoid litigating issueswhich lack merit. Thus, pursuant to Fitzgerald, a trial court clearlypossesses inherent authority to dismiss claims within a petitionthat are frivolous are patently without merit, rather than advancethose claims for further consideration.

I do not find that this outcome restricts a petitioner's abilityto redraft allegations that have been previously dismissed asfrivolous in the first stage, and present those allegations to thecourt as amendments in the second stage of the proceedings. Asdiscussed by the majority, counsel is appointed by the court torepresent petitioners in the second stage of the proceedings if thecourt finds that the petition contains allegations that state the gistof a constitutional claim. Section 122-4 of the Act, and SupremeCourt Rule 651(c), ensure that counsel reviews the allegationswith the petitioner, examines the record, and makes necessaryamendments, so the petition is presented in an adequate legalform. 725 ILCS 5/122-4 (West 2000); 134 Ill. 2d R. 651(c);People v. Johnson, 154 Ill. 2d 227, 238 (1993). Neither theprovisions of the Act, nor holdings by this court, limit the right toamend a petition once the court finds that the petition containsnonfrivolous claims. Rather, this court has stated that counsel maymake any necessary amendments to the original petition, withoutlimitation. People v. Gaultney, 174 Ill. 2d 410, 418 (1996); Peoplev. Owens, 139 Ill. 2d 351, 358-59 (1990). This interpretation isalso consistent with the language of Rule 651(c), which states thatcounsel may make "any" amendments to the petition. 134 Ill. 2dR. 651(c). Accordingly, an attorney may redraft allegationspreviously dismissed in stage one of the proceedings if he or shebelieves it is possible to articulate a more meaningful andmeritorious claim.

This interpretation does not hamper judicial administration oradd confusion to the post-conviction process. In fact, it does theopposite. It preserves the limited resources of both the bar and thebench, and focuses the proceedings upon claims which havepotential merit. Accordingly, I believe that partial summarydismissals are permitted in the first stage of a post-convictionproceeding.