People v. Minniefield

2015 IL App (1st) 141094
No. 1-14-1094
Opinion filed August 14, 2015

FIFTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Cook County.
)
Plaintiff-Appellee, )
)
v. ) No. 3 CR 1284
)
GREGORY MINNIEFIELD, ) The Honorable
) Thomas J. Byrne,
Defendant-Appellant. ) Judge, presiding.

JUSTICE GORDON delivered the judgment of the court, with opinion.
Presding Justice Palmer and Justice Reyes concurred in the judgment and opinion.

OPINION
 No. 1-14-1094

¶1 Defendant Gregory Minniefield appeals the trial court's December 6,

2013, order striking defendant's pro se document which was entitled "Motion to

Vacate Conviction/Sentence as Void."

¶2 Defendant was found guilty after a jury trial of first-degree murder and

sentenced to a total of 50 years with the Illinois Department of Corrections. The

sentence included a 25-year enhancement for personally discharging a firearm

which proximately caused death. This court affirmed defendant's conviction and

sentence on direct appeal on April 11, 2007. People v. Minniefield, No. 1-05-

2792 (2007) (unpublished order under Supreme Court Rule 23). Defendant

then filed a pro se postconviction petition which the trial court summarily

dismissed. On May 28, 2010, this court reversed the trial court's summary

dismissal and remanded for second-stage postconviction proceedings. People v.

Minniefield, No. 1-08-0649 (2010) (unpublished order under Supreme Court

Rule 23). After the remand, the trial court granted the State's motion to dismiss

on January 15, 2013. On December 13, 2013, this court affirmed the trial

court's second-stage dismissal. People v. Minniefield, 2014 IL App (1st)

130535.

¶3 While defendant's appeal of the second-stage dismissal of his

postconviction petition was pending, defendant filed on November 27, 2013, a

document entitled a "Motion to Vacate Conviction/Sentence as Void." The

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document claimed that he was wrongly sentenced under a firearm enhancement

provision because the jury was incorrectly instructed under a modified

instruction.

¶4 On this appeal, defendant characterizes this document as a section 2-1401

petition (735 ILCS 5/2-1401(a) (West 2012)), but concedes that he "chose the

incorrect vehicle to present his claims" and that "a circuit court is not required

to construe a collateral petition arguing constitutional violations as a post-

conviction petition if the pleading does not explicitly invoke the [Post-

Conviction Hearing] Act, as is the case here." In addition, defendant also

observes that this court recently rejected his underlying substantive argument.

People v. Sharp, 2015 IL App (1st) 130438, ¶¶ 79-80.

¶5 For the following reasons, we do not find defendant's arguments

persuasive.

¶6 BACKGROUND

¶7 I. The Evidence at Trial

¶8 A. The Events

¶9 On direct appeal, we summarized the evidence at defendant's trial as

follows:

"The trial evidence demonstrated that, on December 17, 2002,

defendant fatally shot the victim, Theopolis Ransberry. Immediately

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prior, defendant was driving a car with two passengers, his girlfriend and

cousin. The victim was simultaneously driving his car with three

passengers. Although defendant admitted that he shot the victim, the trial

testimony conflicted regarding the exact chain of events leading to the

victim's death. The State's witnesses, including the victim's passengers

and defendant's cousin, testified that defendant instigated the exchange

with the victim by shooting at the victim's car. Then, after the victim

subsequently pulled his car over, defendant approached on foot and shot

the victim several more times absent provocation. Contrarily defendant

testified that he did not shoot the victim until, after approaching the

victim's car to merely talk, he thought the victim was reaching for a gun,

and thus responsively shot the victim's hand twice. Then because the

victim began to drive away while defendant's hand remained partially

inside the car, defendant's hand hit the window causing the handgun to

fire several more times." Minniefield, No. 1-05-2792, slip op. at 2 (April

11, 2007).

¶ 10 B. Defendant's Pretrial Confession

¶ 11 On direct appeal, we described defendant's pretrial confession as follows:

"At trial, Assistant State's Attorney (ASA) John Brady testified that

defendant agreed to have his statement videotaped, and it was published

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to the jury over defense counsel's objections. In the statement, defendant

admitted that he chased the victim's car on the day in question because

they were engaged in an ongoing feud over money. Defendant further

admitted that, while chasing the victim's car, he fired two gunshots into

the air. Defendant additionally admitted that he approached the victim's

car, grabbed the chain around his neck and demanded money that the

victim owed him. The victim moved and defendant fired his handgun

toward the victim's leg. Then, while defendant's handgun remained

inside the car, the car moved approximately two feet causing defendant to

shoot the victim four additional times. Defendant admitted that no one

was armed in the victim's car. Defendant knew that bullets hit both the

victim and Roshawn Adams, one of the passengers; however, he fled the

scene and disposed of his handgun. Defendant stated that he merely

intended to scare the victim, not to hurt him." Minniefield, No. 1-05-

2792, slip op. at 2 (April 11, 2007).

¶ 12 C. Defendant's Testimony at Trial

¶ 13 We described defendant's trial testimony as follows:

"Defendant testified that, in April 2002, he and the victim had a

conversation during which the victim denied involvement in an incident

with defendant's girlfriend. He further testified that, early in the

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afternoon on the day in question, defendant was driving with his two-year

old son when the victim opened fire at defendant's car. Defendant found

a police officer in the area and reported the incident; however, the officer

was forced to leave on an emergency call. At some point during the day,

defendant purchased a loaded handgun for protection.

Later in the evening, defendant was driving with his girlfriend, Nicole

Saunders, and his cousin, Erica Simmons, when he recognized the

victim's car pass him and stop. Defendant approached the victim's car on

foot, armed with his handgun, to talk to him about a misunderstanding

involving Sanders. Defendant, however, saw the victim reach for what

he thought was a handgun, and as a result, shot inside the car in an

attempt to shoot whatever the victim was trying to retrieve. After firing

two shots, the victim began to drive away. Defendant's hand, however,

was still inside the car. As a result, the window frame hit defendant's

hand causing the gun to fire several more times. Defendant testified that

he did not intend to fire the handgun and he did not think that he shot

anyone.

Defendant further maintained that he was mistreated while in police

custody, and despite expressly invoking his rights to an attorney and to

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remain silent, his Miranda rights were violated. 1 Miranda v. Arizona,

384 U.S. 436 (1966). Defendant claimed that he told Detective Ron

Lewis and Timothy Nolan that the victim threatened him and that he shot

the victim because he thought the victim was reaching for a weapon.

Defendant, however, admitted that he did not make the same claims in

his videotaped statement.

On cross-examination, defendant stated that he thought the victim

initially shot at his car because the victim mistakenly thought that

defendant was involved in a prior attack on the victim, which was

actually instigated by defendant's girlfriend. He admitted, however, that

during the incident the victim did not make any threats." Minniefield, No.

1-05-2792, slip op. at 2-4 (April 11, 2007).

¶ 14 D. The State's Rebuttal Evidence

¶ 15 We described the State's rebuttal case as follows:

"In rebuttal, Detective Lewis testified that defendant did not report

that the victim shot at him while he was driving his son or that he thought

the victim was reaching for a handgun. On cross-examination, however,

Lewis admitted that defendant told him that the victim had threatened

1
Prior to trial, the trial court denied defendant's motion to suppress the
statements he made while in police custody.
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defendant. Also, in rebuttal, Detective Nolan reiterated that defendant

did not report that the victim shot at him. On cross-examination,

however, Nolan admitted that defendant [stated] that he only shot inside

the victim's car because the victim was reaching for something."

Minniefield, No. 1-05-2792, slip op. at 4 (April 11, 2007).

¶ 16 E. Jury Instructions

¶ 17 At the jury instruction conference, defense counsel requested instructions

on both second-degree murder and self-defense, which the trial court gave over

the State's objection.

¶ 18 The jurors were instructed that, in order to sustain the charge of first-

degree murder, the State had the burden of proving that "the defendant was not

justified in using the force he used."

¶ 19 As to when force is justified, the jurors were instructed:

"A person is justified in the use of force when and to the extent that he

reasonably believes that such conduct is necessary to defend himself

against the imminent use of unlawful force.

However, a person is justified in the use of force which is intended or

likely to cause death or great bodily harm only if he reasonably believes

that such force is necessary to prevent imminent death or great bodily

harm to himself."

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¶ 20 With respect to second-degree murder, the jury was instructed:

"You may not consider whether the defendant is guilty of the lesser

offense of second degree murder until and unless you have first

determined that the State has proved beyond a reasonable doubt each of

the previously stated propositions.

The defendant has the burden of proving by a preponderance of the

evidence that a mitigating factor is present so that he is guilty of the

lesser offense of second degree murder instead of first degree murder.

By this I mean that you must be persuaded, considering all the evidence

in this case, that it is more probably true than not true that the following

mitigating factor is present: that the defendant, at the time he performed

the acts which caused the death of Theopulous Ransberry, believed the

circumstances to be such that they justified the deadly force he used, but,

his belief that such circumstances existed was unreasonable."

Thus, the jurors were also instructed to consider, if they first found that the

State had proved that "the defendant was not justified in using the force he

used" and he was guilty of first-degree murder, whether he had an unreasonable

belief in the need for the use of deadly force.

¶ 21 After receiving their instructions, the jury convicted defendant of first-

degree murder, and defendant was sentenced to 50 years of imprisonment, and

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his conviction was affirmed on direct appeal on April 11, 2007. Minniefield,

No. 1-05-2792.

¶ 22 II. Postconviction Proceedings

¶ 23 Defendant filed a pro se postconviction petition on December 27, 2007,

alleging ineffective assistance of counsel, which the trial court summarily

dismissed as frivolous on February 6, 2008.

¶ 24 A. Reversal of First-Stage Dismissal

¶ 25 On appeal, this court reversed the summary first-stage dismissal on May

28, 2010 (Minniefield, No. 1-08-0649, slip op. at 7 (May 18, 2010)), stating:

"We find defendant's claim should have survived first-stage review

because his allegation that counsel failed to investigate or present

witnesses has an arguable basis in law and fact. [Citation.] As a

threshhold matter, we note that defendant appended his own affidavit as

well as one from Ratliff. A claim that trial counsel failed to investigate

and call a witness must be supported by an affidavit from the proposed

witness. [Citation.] Therefore, we do not consider the proposed

testimony from Knighton in our determination. [Citation.]

We find that defendant's allegation has an arguable basis in fact. At

trial, defendant's testimony presented an 'imperfect self-defense' theory:

that he fired his gun at the victim after believing he saw the victim reach

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for a gun. However, the State's testimony established that police did not

recover a gun from the victim's automobile. In his petition, defendant

alleged that Ratliff would testify that an unknown man removed a silver

gun from the automobile before police arrived on the scene. Defendant

appended an affidavit in which Ratliff averred as such, and also that

counsel never investigated his statement. In his own affidavit, defendant

averred that he told counsel about Ratliff and Knighton. Taken as true at

this stage [citation], Ratliff's affidavit lends support to defendant's theory

of defense and defendant's affidavit establishes that counsel knew of the

witnesses. Therefore we cannot find the facts in defendant's allegations

'fantastic or delusional.' [Citation.]"

We also cannot find defendant's allegation presented an indisputably

meritless legal theory. A constitutional claim that a defendant did not

receive effective assistance of counsel must demonstrate that it is

arguable that counsel's performance fell below an objective standard of

reasonableness and the defendant was arguably prejudiced as a result.

[Citation.] Defendant testified at trial that he believed the victim was

reaching for a gun and that based on this belief, fired one or two shots

toward the victim. Testimony presented by the State established that the

police did not recover a gun from the victim's automobile. The

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allegations related to Ratliff's testimony corroborate defendant's belief

that the victim was reaching for a gun. We find this failure to investigate

could arguably demonstrate that counsel's performance was objectively

unreasonable. [Citation.] Finally, the affidavits support the allegation

that counsel failed to investigate Ratliff's testimony. Although the

evidence against defendant was strong, it is at least 'arguable' that

evidence of a gun in the victim's car could have changed the outcome."

Minniefield, No. 1-08-0649, slip op. at 5-7 (May 18, 2010).

¶ 26 The appellate court did not reach defendant's second allegation

concerning ineffectiveness based on a failure to ask for further jury instructions,

since it was already reversing on the first issue. Minniefield, No. 1-08-0649,

slip op. at 7 (May 18, 2010).

¶ 27 B. Trial Court's Order on Remand

¶ 28 On remand, counsel was appointed and filed a supplemental petition,

supplementing the claims and allegations that defendant already made in his pro

se petition.

¶ 29 In his pro se petition, filed in December 2007, defendant alleged that

"prior to trial, I informed my trial attorney that Michelle Knighton and Thomas

Ratliff were present[] after the shooting and saw an unknown male take a silver

gun off the front passenger floor and [leave] with it before the police came" and

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that defense counsel was ineffective for failing to call these two witnesses to

testify. Defendant also alleged that "defense counsel was ineffective for not

requesting an involuntary manslaughter instruction where there was sufficient

evidence to support it."

¶ 30 Counsel's supplemental petition argued (1) that trial counsel was

ineffective for not calling Ratliff who indicated prior to trial that the victim was

armed; and (2) that the newly available testimony of Noah Redic and Antoine

Nash that the victim was armed with a gun would have changed the outcome at

trial, resulting in an acquittal or reducing the conviction to second-degree

murder. The supplemental petition stated that Ratliff was not a newly

discovered witness and that his affidavit was submitted to support defendant's

ineffective assistance claim.

¶ 31 Both Redic and Nash swore in their affidavits that defendant "stepped

back" from the victim's vehicle immediately before firing the first shot. We

previously observed that these statements contradicted defendant's trial

testimony that he reached his hand inside the victim's vehicle to fire the first

couple of shots at whatever the victim was reaching for on the floor.

Minniefield, 2014 IL App (1st) 130535, ¶ 43.

¶ 32 The State moved to dismiss defendant's pro se petition as supplemented

by counsel, and the petition proceeded to a second-stage hearing. The State

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conceded that Redic's and Nash's affidavits, which were submitted in support of

defendant's actual innocence claim, were newly discovered but argued that they

were not material. Minniefield, 2014 IL App (1st) 130535, ¶¶ 46-47. The State

argued that Redic and Nash's testimony would not have changed the result at

trial because, at most, their affidavits showed mutual combat 2 not self-defense

by defendant. Defendant testified that he was armed when he approached the

victim's vehicle. Redic and Nash both swore in their affidavits that the victim

said "Oh, sh**" when he observed defendants approach and then reached for a

gun. At most, this chain of events showed aggression by defendant, a self-

defense response by the victim, and then shooting by defendant toward the

seated victim. The State argued that this chain of events could not possibly

serve as the basis for a self-defense claim by defendant.

2
"Mutual combat" has been defined by our supreme court as a "fight or
struggle which both parties enter willingly or where two persons, upon a sudden
quarrel and in hot blood, mutually fight upon equal terms and where death results
from the combat." People v. Austin, 133 Ill. 2d 118, 125 (1989). See also People
v. Leach, 2012 IL 111534, ¶ 152 (the offense of first-degree murder may be
"mitigated" to second-degree murder if the defendant "killed while under the
influence of a sudden, intense passion engendered by mutual combat"); 720 ILCS
ILCS 5/9-2(a) (West 2012) (a "mitigating factor" for second-degree murder occurs
if defendant is "acting under a sudden and intense passion resulting from serious
provocation by the individual killed *** but he or she negligently or accidentally
causes the death of the individual killed").
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¶ 33 On January 15, 2013, the trial court again dismissed the petition, ruling

(1) that trial counsel was not ineffective for allegedly failing to investigate; and

(2) that defendant had failed to make a substantial showing of actual innocence.

¶ 34 On appeal of the second-stage dismissal, defendant argued: (1) that he

made a substantial showing that he acted in self-defense and thus is actually

innocent; and (2) that his counsel was ineffective (a) for failing to ask for an

involuntary manslaughter jury instruction and (b) for failing to investigate or

call occurrence witnesses. We did not find these claims persuasive, and on

December 31, 2014, we affirmed the trial court's second-stage dismissal of

defendant's postconviction petition. Minniefield, 2014 IL App (1st) 130535,

¶¶ 51, 100. Defendant's petition for rehearing was denied on February 5, 2015.

¶ 35 III. "Motion to Vacate Conviction/Sentence as Void"

¶ 36 While defendant's appeal of the second-stage dismissal of his

postconviction petition was pending, defendant filed on November 27, 2013, a

document entitled "Motion to Vacate Conviction/Sentence as Void." This

document is the subject of the current appeal.

¶ 37 In this document, defendant claimed that his appellate counsel was

ineffective for failing to challenge the trial court's imposition of a 25-year-to-

life sentencing enhancement pursuant to section 5-8-1(a) of the Unified Code of

Corrections (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012)), which provided that:

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"if, during the commission of the offense, the person personally

discharged a firearm that proximately caused *** death to another

person, 25 years or up to a term of natural life shall be added to the term

of imprisonment imposed by the court."

¶ 38 Defendant attached the modified first-degree murder instructions that

were tendered to his jury, as well as a portion of the sentencing transcript during

which his trial counsel objected to the imposition of the sentencing

enhancement because the jury did not receive a separate verdict form for the

firearm enhancement. Defendant claimed that he was wrongly sentenced

pursuant to the firearm enhancement provision because the jury was not

correctly instructed.

¶ 39 With respect to defendant's document, the trial court observed on

December 6, 2013: "First whether or not it's properly filed here that's the first

issue. If it's not properly filed, I'll strike the motion. Are you able to tell me if

it's properly filed? It's not a [section 2-]1401 petition." The trial court also

stated: "This Court loses jurisdiction *** [a]fter the appeal is concluded. Then

there's other remedies [section 2-]1401 remedies, post-conviction remedies and

so it would come back to the original court. This could just be a guy that's busy

typing from jail while he's being represented by the Appellate Defender's

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Office." The trial court then struck defendant's document in a written order,

filed December 6, 2013, which stated in full:

"It is hereby ordered that the defendant's 'Motion to Vacate

Conviction/Sentence as Void' is not properly filed.

This matter is currently pending before the Appellate Court under case

number 13-535.

The defendant's motion is stricken."

It is this order which is the subject of the current appeal.

¶ 40 On April 29, 2014, this court entered an order allowing defendant's late

notice of appeal and appointing the State Appellate Defender to represent him.

On May 9, 2014, the trial court also entered an order appointing the State

Appellate Defender, and this appeal now follows.

¶ 41 ANALYSIS

¶ 42 On this appeal, defendant characterizes his "Motion to Vacate

Conviction/Sentence as Void" as a section 2-1401 petition (735 ILCS 5/2-

1401(a) (West 2012)), but concedes that he "chose the incorrect vehicle to

present his claims" and that "a circuit court is not required to construe a

collateral petition arguing constitutional violations as a post-conviction petition

if the pleading does not explicitly invoke the [Post-Conviction Hearing] Act, as

is the case here." In addition, defendant also observes that this court recently

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rejected his underlying substantive argument. Sharp, 2015 IL App (1st)

130438, ¶¶ 79-80.

¶ 43 For the following reasons, we do not find defendant's arguments

persuasive.

¶ 44 I. Standard of Review

¶ 45 Defendant argues that our standard of review is de novo and cites in

support People v. Vincent, 226 Ill. 2d 1 (2007). In Vincent, our supreme court

held that, in section 2-1401 proceedings, where a trial court enters either

judgment on the pleadings or a dismissal for failure to state a cause of action,

the proper standard of review is de novo. Vincent, 226 Ill. 2d at 15-17. Without

conceding that defendant's document was a 2-1401 petition, the State agrees

that the issue before us is a question of law subject to de novo review.

¶ 46 However, defendant also argues that the trial court had the discretion to

treat his document as a postconviction petition even though it did not invoke the

Post-Conviction Hearing Act (Act), and that the trial court should have done so.

725 ILCS 5/122-1(d) (West 2012) (a trial court "need not evaluate" under the

Act a document which fails to specify the Act); People v. Shellstrom, 216 Ill. 2d

45, 53 (2005) ("where a pro se pleading alleges a deprivation of rights

cognizable in a postconviction proceeding, a trial court may treat the pleading

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as a postconviction petition, even where the pleading is labeled differently").

This argument suggests an abuse-of-discretion review.

¶ 47 However, whether we applied a de novo or an abuse-of-discretion

standard of review, our conclusion would be the same.

¶ 48 II. Section 2-1401

¶ 49 On appeal, defendant characterizes his filing as a section 2-1401 petition.

¶ 50 Section 2-1401 permits relief from final judgments, which are older than

30 days but were entered less than 2 years ago. 735 ILCS 5/2-1401(a), (c)

(West 2012); People v. Laugharn, 233 Ill. 2d 318, 322 (2009). "To obtain relief

under section 2-1401, the defendant 'must affirmatively set forth specific factual

allegations supporting each of the following elements: (1) the existence of a

meritorious defense or claim; (2) due diligence in presenting this defense or

claim to the circuit court in the original action; and (3) due diligence in filing

the section 2-1401 petition for relief.' " People v. Pinkonsly, 207 Ill. 2d 555, 565

(2003) (quoting Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21 (1986)). "[A]n

action brought under section 2-1401 is a civil proceeding and, according to this

court's long-standing precedent, is subject to the usual rules of civil practice,

even when it is used to challenge a criminal conviction or sentence." Vincent,

226 Ill. 2d at 6.

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¶ 51 III. Incorrect Vehicle

¶ 52 In defendant's brief to this court, he acknowledges: "It is true that

[defendant] chose the incorrect vehicle to present his claims ***." Defendant

explains that his "petition for relief from judgment and supporting

documentation challenged appellate counsel's performance for failing to raise a

jury instruction claim, but this ineffectiveness claim, based upon the federal and

Illinois constitutions, was only cognizable pursuant to the Post-Conviction

Hearing Act (the Act)" (725 ILCS 5/122-1(a)(1) (West 2012) (providing

prisoners with a process to challenge "a substantial denial of his or her rights

under the Constitution of the United States or of the State of Illinois" in the

proceedings which resulted in his or her conviction)). Nonetheless, defendant

argues that, "while a circuit court is not required to construe a collateral petition

alleging constitutional violations as a post-conviction petition if the pleading

does not explicitly the Act, as is the case here, it is within a court's discretion to

do so."

¶ 53 Section 122-1(d) of the Act provides in full:

"(d) A person seeking relief by filing a petition under this Section

must specify in the petition or its heading that it is filed under this

Section. A trial court that has received a petition complaining of a

conviction or sentence that fails to specify in the petition or its heading

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that it is filed under this Section need not evaluate the petition to

determine whether it could otherwise have stated some grounds for relief

under this Article." (Emphasis added.) 725 ILCS 5/122-1(d) (West

2012).

¶ 54 Although a trial court "need not evaluate" a mislabeled petition, our supreme

court has held that it may. In Shellstrom, cited by defendant, our supreme court

held: "where a pro se pleading alleges a deprivation of rights cognizable in a

postconviction proceeding, a trial court may treat the pleading as a

postconviction petition, even where the pleading is labeled differently."

Shellstrom, 216 Ill. 2d at 53.

¶ 55 In a footnote, the Shellstrom court further explained, that "while a trial

court may treat a pro se pleading as a postconviction petition, there is no

requirement that the court do so." (Emphases in original.) Shellstrom, 216 Ill.

2d at 53 n.1. The supreme court then quoted subsection (d) and stated:

"In other words, if a pro se pleading alleges constitutional deprivations

that are cognizable under the Act, but, as in the case at bar, the pleading

makes no mention of the Act, a trial court is under no obligation to treat

the pleading as a postconviction petition. Nevertheless, as our appellate

court has pointed out, this does not mean that a trial court is barred from

treating a pro se pleading as a postconviction petition. 'If the court need

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not do so, then by the strongest of implications, it also may do so.'

(Emphases in original.) People v. Helgesen, 347 Ill. App. 3d 672, 676

(2004)." (Emphasis in original.) Shellstrom, 216 Ill. 2d at 53 n.1.

¶ 56 Our supreme court then noted the adverse consequences that could flow to

the defendant from the trial court's recharacterization and held that, in the

future, when a circuit court recharacterizes as a postconviction petition a

pleading that a pro se litigant has labeled differently, "the circuit court must (1)

notify the pro se litigant that the court intends to recharacterize the pleading, (2)

warn the litigant that this recharacterization means that any subsequent

postconviction petition will be subject to the restrictions on successive

postconviction petitions, and (3) provide the litigant an opportunity to withdraw

the pleading or to amend it so that it contains all the claims appropriate to a

postconviction petition that the litigant believes he or she has." Shellstrom, 216

Ill. 2d at 57.

¶ 57 In the case at bar, we cannot find that the trial court erred by not

recharacterizing defendant's document, which set forth only one claim, as a

successive postconviction petition, in light of the consequences to defendant

that such a recharacterization would have.

¶ 58 Our conclusion is bolstered by the fact that this court recently rejected an

argument similar to the underlying substantive argument made by defendant.

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Sharp, 2015 IL App (1st) 130438, ¶¶ 79-80 (no error in modified attempted

first-degree murder instruction, which included the 25-to-life personal discharge

sentencing enhancement for proximately causing great bodily harm). In his

brief, defendant acknowledges: "It is true that one panel of the First District

Appellate Court recently rejected a similar argument." However, defendant

argues that the very fact that "such a challenge was raised" shows that his claim

was not meritless. On the contrary, the fact that this court rejected the claim

does not show its merit.

¶ 59 CONCLUSION

¶ 60 For the foregoing reasons, we cannot find any error in the trial court's

striking of the document which defendant labeled a "Motion to Vacate

Conviction/Sentence as Void."

¶ 61 Affirmed.

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