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Docket No. 86059-Agenda 5-March 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MICHAEL WATSON, Appellee.

Opinion filed September 23, 1999.

JUSTICE HEIPLE delivered the opinion of the court:

Does the filing of an amended post-conviction petition restart the 90-day period in which the circuit court may dismiss apetition as frivolous or patently without merit? The answer is yes.

Defendant was convicted of first degree murder, aggravated criminal sexual assault, and aggravated kidnaping, and wassentenced to natural life plus 65 years in prison. The appellate court affirmed on direct appeal. People v. Watson, No.3-93-0444 (1996) (unpublished order under Supreme Court Rule 23). Defendant then filed a pro se petition for post-conviction relief in the circuit court of La Salle County on May 31, 1996. In that petition, he sought leave to file anamended petition, which the circuit court subsequently granted. Defendant's amended petition was filed August 30, 1996.On September 5, 1996, the circuit court dismissed the petition as frivolous or patently without merit.

On appeal of the dismissal of his post-conviction petition, defendant argued that the circuit court erred in finding hispetition frivolous or patently without merit. Defendant also argued that the circuit court was not authorized to dismiss thepetition because it entered its ruling more than 90 days after the filing of his original petition. The appellate court agreedwith this second argument, and reversed and remanded the cause to the circuit court for appointment of counsel to representdefendant on further consideration of the petition. No. 3-96-0886 (unpublished order under Supreme Court Rule 23). Weallowed the State's petition for leave to appeal and now reverse the appellate court.

Under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1996)), the court in which a post-convictionpetition is filed must, within 90 days of the filing, examine the petition, and, if the court determines that the petition isfrivolous or patently without merit, enter an order dismissing it. 725 ILCS 5/122-2.1(a)(2) (West 1996). If the court doesnot dismiss the petition in this manner, it must docket the petition for further consideration and, if satisfied that thepetitioner desires but has no means to procure counsel, appoint counsel. 725 ILCS 5/122-2.1(b), 122-4 (West 1996).Defendant in the instant case contends that, because the court failed to dismiss the petition within 90 days from the filing ofhis original petition, the court was required to docket the petition for further consideration and grant his request forappointed counsel. The State responds that the 90-day period restarted when defendant filed his amended petition. We agreewith the State.

The General Assembly has authorized a court considering a post-conviction petition to allow amendments to the petition.725 ILCS 5/122-5 (West 1996). It would be unreasonable to authorize the court to allow amendments to the petition andyet require the court to rule on the petition within the period remaining for consideration of the original petition. Theunreasonableness of defendant's position is well illustrated by the instant case. After requesting and receiving leave toamend his original petition, defendant mailed the amended petition on the eighty-eighth day of the original period. Underdefendant's suggestion, the circuit court would then have had only two days to consider the merits of the amended petition.Such a truncated time frame to consider the petition would be both inadequate and unfair. Such a rule could work only tothe detriment of all, including both defendants and prosecutors.

Accordingly, we hold that, when a defendant who has filed an original post-conviction petition subsequently files anamended petition, the 90-day period in which the court must examine the defendant's petition and enter an order thereon isto be calculated from the filing of the amended petition. We thus reverse the judgment of the appellate court and remandthis cause to the appellate court to address defendant's arguments on the merits of his petition.

Appellate court judgment reversed;

cause remanded.

CHIEF JUSTICE FREEMAN, specially concurring:

Although I agree with the court's holding, I write separately because I believe that today's opinion provides too cursory ananalysis concerning the construction of section 122-5 of the Post-Conviction Hearing Act (725 ILCS 5/122-5 (West1996)). I also believe that the opinion has the potential to cause undue confusion in future cases.

Like my colleagues in the majority, I agree that the filing of an amended post-conviction petition will restart the 90-dayperiod in which the circuit court may dismiss a petition as frivolous or patently without merit. Moreover, I agree that thereason the above is true is because the General Assembly has authorized the circuit court to allow for amended petitions,such as that at issue here, to be filed under the Act. That authorization can be found in section 122-5, as the court correctlyholds. Slip op. at 2. However, the court declares this holding in a single sentence (see slip op. at 2 (stating that the section"authorize[s] a court considering a post-conviction petition to allow amendments to the petition") without first engaging inany statutory construction analysis. Instead, the opinion refers only to reasons of policy that support its interpretation of thelanguage. See slip op. at 2. Although I do not disagree with the policy reasons identified in the court's opinion, I feel thatour analysis in this case should begin with an examination of the language contained in section 122-5.

Section 122-5 provides as follows:

"Within 30 days after the making of an order pursuant to subsection (b) of Section 122-2.1, or within such furthertime as the court may set, the State shall answer or move to dismiss. In the event that a motion to dismiss is filed anddenied, the State must file an answer within 20 days after such denial. No other or further pleadings shall be filedexcept as the court may order on its own motion or on that of either party. The court may in its discretion grant leave,at any stage of the proceeding prior to the entry of judgment, to withdraw the petition. The court may in its discretionmake such order as to amendment of the petition or any other pleading, or as to pleading over, or filing furtherpleadings, or extending the time for filing any pleading other than the original petition, as shall be appropriate, justand reasonable and as is generally provided in civil cases." (Emphasis added.) 725 ILCS 5/122-5 (West 1996).

The plain language of section 122-5 demonstrates that the section deals with two distinct subjects. The first relates to theState's obligations once a petition has been docketed pursuant to section 122-2.1(b). Under section 122-5, the State, as theresponding party, may seek a dismissal of the petition or else it may answer. If a motion to dismiss is denied, the State'sanswer must be filed within 20 days after the denial unless more time is given by the court. The next portion of section122-5, underscored in the above quotation, relates to the discretion the circuit court has in its control of the case "at anystage of the proceeding." The General Assembly has permitted the circuit court to allow for a withdrawal of the petition andfor any amendments "as shall be appropriate, just, and reasonable, and as is generally provided in civil cases." Under ourrules of civil procedure, which govern civil cases, a plaintiff may seek to amend its original pleading with leave of courtprior to entry of a final judgment. See 735 ILCS 5/2-616(a) (West 1996).

When a court engages in statutory construction, as we do here, its sole task is to ascertain and give effect to the intent of thelegislature. To do so, the court must look first to the language of the statute, examining the language as a whole andconsidering each part or section in connection with every other part or section. Antunes v. Sookhakitch, 146 Ill. 2d 477(1992). In so doing, I find no reason to read section 122-5 in isolation, as the dissent suggests. Slip op. at 7-8 (Rathje, J.,dissenting). The first half of section 122-5 refers back to section 122-2.1(b). The second half of section 122-5 refers to anystage in the proceeding and, at one point, specifically refers to the period before the entry of a final judgment. Petitionsdismissed as frivolous or as patently without merit are dismissed under section 122-2.1(a)(2) and such orders of dismissalconstitute "final judgment[s]." 725 ILCS 5/122-2.1(a)(2) (West 1996). Thus, the discretion given in the latter portion ofsection 122-5 relates to any stage in the proceeding prior to the entry of a final judgment. Reading the statute as a wholeand giving effect to its language, I find no support for the position that petitioners cannot file amendments (with courtapproval) under section 122-2.1, for such a prohibition is nowhere stated in the entirety of the Act.⁽¹⁾ Nor do I find anysupport for the position that the latter provisions of section 122-5 apply only to petitions that are not frivolous or patentlywithout merit. Today's decision merely reaffirms this court's longstanding recognition of the broad discretionary powersafforded by the legislature to the post-conviction judge. See People v. Wright, 149 Ill. 2d 36, 54-55 (1992) (and cases citedtherein).

Nevertheless, the potential confusion to which I referred at the outset of this special concurrence will doubtless occur whenone compares today's holding with certain language found in People v. Gaultney, 174 Ill. 2d 410, 418 (1996), and reliedupon today by the dissent. See slip op. at 7-9 (Rathje, J., dissenting). The dissent is right to point out the conflict betweenthese two decisions. However, in my view, this language cited by the dissent from our decision in Gaultney inaccuratelydescribes the procedures to be used in post-conviction proceedings. Specifically, in Gaultney, a majority of this court notedthat during the first stage of a post-conviction proceeding, "the Act does not permit any further pleadings from thedefendant." Gaultney, 174 Ill. 2d at 418. In other words, Gaultney states that post-conviction petitioners, such as defendant,are precluded from filing the type of amendment at issue in this case. We today hold that such amendments are permittedunder the Act. Although an argument can be made that the statement contained in Gaultney is merely dicta because it didnot relate to the main question presented to this court for review, I believe that this court should avoid creating a situation inwhich conflicting lines of authority are allowed to compete. As the highest court in this state, we have an obligation toclarify our position whenever the need to do so arises, particularly since neither our circuit nor our appellate court possessesthe authority to overrule or ignore our pronouncements. Because Gaultney is precedent of relatively recent vintage andbecause the court makes no mention of it, today's opinion leaves both bench and bar with the unenviable task of having todiscern which opinion provides the correct statement of law. In light of this seeming conflict, I would hold that, given thebroad discretion given expressly to the circuit court in section 122-5 by the General Assembly, no principled reason existsto disregard that language and preclude post-conviction petitioners the chance to amend their original petitions. Therefore,to the extent the statement in Gaultney suggests or holds that such amendments are not permitted under the Act, thatstatement should not be considered binding authority.

In my view, the result obtained here by the court is faithful to the plain language of the Act and is consistent with our pastholdings concerning the wide discretion given to the circuit court in these proceedings. Nevertheless, the court should speakdefinitively in order to avoid any potential conflict its holding today might create. In all other respects, however, I join inthe court's opinion.

JUSTICE RATHJE, dissenting:

Does the Post-Conviction Hearing Act allow defendants to file amended petitions at the first stage of post-convictionproceedings? The answer is no.

My colleagues address a nonexistent issue, and I therefore cannot join in their opinion. The majority frames the issue aswhether the filing of an amended post-conviction petition restarts the 90-day period in which the circuit court may dismiss apetition as frivolous or patently without merit. That issue need never be addressed, however, as the Act does not allowamended petitions at the initial stage of post-conviction proceedings.

The 90-day rule appears in section 122-2.1(a), while the provision allowing for amendments to the petition is found insection 122-5. Section 122-2.1(a) provides that, within 90 days of the filing of the petition, the court must determine if thepetition is frivolous or patently without merit. If so, the court dismisses the petition. If not, the court dockets the petition"for further consideration in accordance with Sections 122-4 through 122-6." 725 ILCS 5/122-2.1(b) (West 1996).Therefore, the plain language of the statute provides that section 122-5, the only section allowing amendments to thepetition, applies only after the first stage of the proceedings.

That is how we construed the statute in People v. Gaultney, 174 Ill. 2d 410 (1996), a decision the majority appears to haveforgotten. In Gaultney, we explained the stages of the post-conviction process in noncapital cases as follows:

"Pursuant to the Act, a post-conviction proceeding that does not involve the death penalty has three distinct stages. Inthe first stage, the defendant files a petition and the circuit court determines whether it is frivolous or patently withoutmerit. At this stage, the Act does not permit any further pleadings from the defendant or any motions or responsivepleadings from the State. Instead, the circuit court considers the petition independently, without any input from eitherside. To survive dismissal at this stage, a petition need only present the gist of a constitutional claim. [Citation.] Thisis a low threshold and a defendant need only present a limited amount of detail in the petition. At this stage, adefendant need not make legal arguments or cite to legal authority. [Citation.] The Act provides that the petition mustbe supported by 'affidavits, records, or other evidence supporting its allegations' or the petition 'shall state why thesame are not attached.' 725 ILCS 5/122-2 (West 1992). If the circuit court does not dismiss the petition pursuant tosection 122-2.1, it is then docketed for further consideration.

The proceeding then advances to the second stage. At the second stage, the circuit court appoints counsel to representan indigent defendant. 725 ILCS 5/122-4 (West 1992). Counsel may file an amended post-conviction petition. Also,at this second stage, the Act expressly provides that the State may file a motion to dismiss or answer to the petition.725 ILCS 5/122-5 (West 1992). Section 122-5 specifically contemplates that the State will file a motion to dismiss oranswer after the circuit court has evaluated the petition to determine if it is frivolous. If the circuit court does notdismiss or deny the petition, the proceeding advances to the third stage. At this final stage, the circuit court conductsan evidentiary hearing." (Emphasis added.) Gaultney, 174 Ill. 2d at 418.

Thus, in Gaultney, we specifically recognized that no further pleadings from the defendant are allowed at the first stage andthat the right to amend the petition does not exist until the second stage. The appellate court has also construed the Act asnot allowing defendants to file further pleadings at the first stage. See, e.g., People v. Oury, 259 Ill. App. 3d 663, 667-68(1994); People v. Novak, 200 Ill. App. 3d 189, 190-91 (1990); People v. Ramsey, 137 Ill. App. 3d 443, 447 (1985).

Further, Gaultney explicitly held that the State is allowed to file a motion to dismiss only at the second stage of theproceeding. We explained that section 122-5 contemplates that the State's motion to dismiss cannot be filed until thesecond stage, and that a motion to dismiss filed before that stage is premature. Gaultney, 174 Ill. 2d at 418-19.

The provision of the Act allowing for amendments to the petition, like the provision allowing the State to file a motion todismiss, is found in section 122-5. The majority's analysis is premised entirely on section 122-5, yet the majority does notexplain why the motion to dismiss provisions of that section apply only at the second stage, while the amendment provisionapplies at the first stage. Gaultney correctly recognized that section 122-5 applies only at the second stage. The majorityinexplicably carves out one sentence from that section and holds that this one sentence applies at the first stage. I know ofno rule of statutory construction that permits, let alone compels, this court to construe different sentences of the samecohesive paragraph in wholly contradictory terms.

I disagree with Chief Justice Freeman that we should repudiate Gaultney. Gaultney's interpretation of the act is just ascorrect now as it was three years ago when seven members of this court agreed with that interpretation.

Chief Justice Freeman states that, because section 122-5 allows the petition to be withdrawn at any stage of the proceeding,the petition may be amended at any stage of the proceeding. I disagree. Chief Justice Freeman accuses the dissent of readingsection 122-5 in isolation, when it is in fact the majority that does so and refuses to consider it in conjunction with section122-2.1(b). Neither the majority nor the concurring justice addresses section 122-2.1(b), which clearly provides thatsections 122-4 through 122-6 apply only at the second stage. An exception is provided in section 122-5, which states thatthe petition may be withdrawn at any stage of the proceeding. This language is not used with any of the other provisions ofsections 122-4 through 122-6. If the General Assembly intended to allow amendments at any stage of the proceedings, itcould have used similar language, as it did when referring to when petitions could be withdrawn. Exceptions in a statute areto be strictly construed (People v. Lofton, 69 Ill. 2d 67, 71 (1977)), and the expression of certain exceptions in a statute willbe construed as an exclusion of all others (State v. Mikusch, 138 Ill. 2d 242, 250 (1990)).

In addition to being a legally incorrect decision, the majority opinion represents bad policy. Section 122-2.1 was enacted toexpedite the consideration of post-conviction petitions, whether frivolous or not. Oury, 259 Ill. App. 3d at 667. Byjudicially legislating an amendment provision into section 122-2.1 and then holding that the amendment restarts the 90-dayperiod, the majority thwarts the legislature's intent. The majority implies that its interpretation is beneficial to trial courtjudges, defendants, and prosecutors. Slip op. at 2. On the contrary, the majority's interpretation is beneficial only to thosedefendants who would seek to further drag out the post-conviction process.

Even accepting arguendo the majority's implied premise-that amendments are allowed at the first stage-the majorityopinion is still legally incorrect and still represents bad policy. There is simply no provision in the Act for the 90-day periodto begin anew upon the filing of amendments to the petition. As stated, the intention of the legislature in enacting section122-2.1 was to expedite the consideration of post-conviction petitions. Surely, if the legislature meant to thwart its ownintent by allowing defendants to continually renew the 90-day period it would have expressly included such a provision.

The only policy reason given by the majority for its decision is that it would be "unfair" for trial judges if defendants filedamended petitions on the eighty-eighth day, thus giving the judge only two days to consider the petition. I am unwilling toassume that trial court judges are as helpless as the majority makes them out to be. Trial judges have complete discretion tomake orders regarding amendments to the petition. 725 ILCS 5/122-5 (West 1996). Thus, the trial judge decides whether toallow amendments and when those amendments can be filed. The trial judge in any given case would be aware of the 90-day deadline and would not have to allow an amendment if he or she did not believe there would be sufficient time to ruleon it. Trial judges do not have to allow themselves to be sandbagged at the last minute.

Section 122-2.1 does not provide for the 90-day period to begin anew on the filing of an amended petition for the simplereason that amended petitions are not allowed at the first stage. Thus, the trial judge in this case should not have alloweddefendant leave to file an amended petition. Defendant's amended petition was a nullity, and the 90-day period ran from thedate defendant filed his first petition. Because the trial court did not dismiss the petition within that time, the appellate courtcorrectly concluded that the trial court was without authority to dismiss it as frivolous and patently without merit and thatthe petition should have been docketed for further proceedings.

I would affirm the judgment of the appellate court.

1. ¹If the General Assembly intended to prohibit the filing of such amendments, one would think that such aprohibition would appear within the body of section 122-2.1(a).