NO. 4-06-0288 Filed 9/5/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Mason County
JAMIE L. SHIPP, ) No. 95CF44
Defendant-Appellant. )
) Honorable
) Thomas L. Brownfield,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In December 1995, defendant, Jamie L. Shipp, pleaded
guilty to first degree murder and three counts of aggravated
arson (720 ILCS 5/9-1(a)(1), 20-1.1 (West 1994)). The trial
court later sentenced him to 50 years in prison on the first
degree murder conviction and 25 years in prison on each of the
aggravated arson convictions, with those sentences to be served
concurrently.
In December 2005, defendant pro se filed a petition
under the Post-Conviction Hearing Act (725 ILCS 5/122-1 through
122-8 (West 2004)). In March 2006, the trial court dismissed the
petition, upon finding that it was frivolous and patently without
merit. Defendant appeals, and we affirm.
I. BACKGROUND
In exchange for defendant's guilty plea, the State
dismissed the other counts of first degree murder that were based
upon the deaths of the two other victims who died in the trailer
fire defendant pleaded guilty to setting. Although in March 1996
defendant filed pro se a motion to withdraw his guilty plea and
vacate sentence, he later withdrew that motion and never filed an
appeal.
In May 1997, defendant pro se filed a "petition for
relief from judgment" that he described as "pursuant to the
Illinois Post-Conviction Act of the Illinois Revised Statutes."
In that petition, defendant alleged that he had been denied his
right to effective assistance of counsel because his attorney had
failed to investigate the terms of the plea agreement before
advising him to plead guilty.
In July 1997, defendant pro se filed a second "petition
for relief from judgment" that he again characterized as "pursu-
ant to the Illinois Post-Conviction Act of the Illinois Revised
Statutes." This petition also alleged that his trial counsel was
ineffective for failing to investigate the terms of the plea
agreement before advising defendant to plead guilty. Later in
July 1997, the trial court dismissed defendant's petitions, upon
finding that they were frivolous and patently without merit.
Defendant did not appeal.
In December 2005, defendant pro se filed a petition for
relief "pursuant to the Illinois Post-Conviction Act, 725 ILCS
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5/122-1, et seq." In March 2006, the trial court dismissed
defendant's petition, upon finding that it was frivolous and
patently without merit. In so finding, the court noted that
defendant had previously filed postconviction petitions under the
Act, which the court had previously dismissed.
This appeal followed.
II. DEFENDANT'S FAILURE TO COMPLY WITH SECTION
122-1(f) OF THE ACT
Defendant argues that the trial court erred by dismiss-
ing his December 2005 postconviction petition at the first stage
of the postconviction proceedings because (1) the petition
presented a gist of a meritorious claim of actual innocence; (2)
the court applied the wrong standard to judging at this stage
whether defendant's petition made a substantial showing of a
violation of constitutional rights; (3) the petition should not
be considered as a successive postconviction petition because the
two previous petitions were labeled motions for relief from
judgment; and (4) waiver and res judicata should not apply or,
alternatively, those principles should yield to a doctrine of
fundamental fairness. We need not consider any of defendant's
arguments because his petition fails to comply with section 122-
1(f) of the Act.
In People v. DeBerry, 372 Ill. App. 3d 1056, 1059, 868
N.E.2d 382, 383-84 (2007), this court recently addressed section
122-1(f) of the Act, which the legislature added to the Act on
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January 1, 2004. The first sentence of subsection (f) reads as
follows: "Only one petition may be filed by a petitioner under
this [a]rticle without leave of the court." 725 ILCS 5/122-1(f)
(West 2004). We explained the import of this language in
DeBerry, as follows:
"[S]ection 122-1(f) unequivocally requires
that a defendant must obtain leave of court
before filing a successive petition, and if a
defendant fails to do so, the court, whether
sua sponte or on the State's motion, should
dismiss any such petition. In taking this
action, the court need not--and should not--
concern itself with the merits of any claims,
contentions, or arguments that the petition
contains. Section 122-1(f) constitutes a
procedural hurdle to any such consideration
that the legislature has intentionally chosen
to impose regarding such petitions. [Cita-
tion.]
Just as trial courts should not consider
anything contained within a postconviction
petition that violates section 122-1(f) of
the Act, courts of review should be so lim-
ited as well. Accordingly, when, as here, we
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are reviewing the dismissal of defendant's
postconviction petition and we conclude that
section 122-1(f) has been violated, we have
nothing further to discuss or review. That
conclusion trumps anything that defendant's
petition may contain." (Emphasis in origi-
nal.) DeBerry, 372 Ill. App. 3d at 1060, 868
N.E.2d at 384-85.
Defendant tries to avoid the application of DeBerry by
asserting that (1) his prior petitions were not postconviction
petitions under the Act but instead were petitions for relief of
judgment, pursuant to section 2-1401 of the Code of Civil Proce-
dure (735 ILCS 5/2-1401 (West 1996)) and (2) the trial court
recharacterized both of his previous section 2-1401 petitions as
postconviction petitions without either warning him that such
recharacterizations would subject his petitions to the restric-
tions on successive postconviction petitions or providing him
with the opportunity to withdraw the pleadings or amend them to
include all possible postconviction claims. In support of these
contentions, defendant cites People v. Shellstrom, 216 Ill. 2d
45, 833 N.E.2d 863 (2005), and People v. Pearson, 216 Ill. 2d 58,
833 N.E.2d 827 (2005). We reject defendant's efforts to distin-
guish DeBerry.
First, the trial court did not recharacterize defen-
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dant's 1996 petitions as postconviction petitions; defendant
himself labeled them as such. Indeed, defendant made no mention
in either petition of section 2-1401 or any other basis for
relief other than the Post-Conviction Hearing Act to which those
petitions referred. Defendant apparently bases his entire
argument in this regard upon the title he gave to the petitions--
namely, petition for relief from judgment--but this claim falls
short.
Second, even if the trial court had recharacterized
defendant's earlier petitions from being brought under section 2-
1401 of the Code of Civil Procedure to being postconviction
petitions, none of that would matter. In People v. Adams, 373
Ill. App. 3d 991, 994, 869 N.E.2d 856, 859 (2007), the First
District Appellate Court held that the supreme court's mandate in
Shellstrom does not apply retroactively. We agree with the First
District. The supreme court's decision in Shellstrom, by its
explicit language, applies only prospectively. In particular,
the Shellstrom court wrote, "we hold that, in the future, when a
circuit court is recharacterizing as a first postconviction
petition a pleading that a pro se litigant has labeled as a
different action cognizable under Illinois law, the circuit court
must" take certain action to alert the defendant about the
proposed recharacterization. (Emphasis added.) Shellstrom, 216
Ill. 2d at 57, 833 N.E.2d at 870.
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As in DeBerry, we have intentionally chosen not to
discuss the substance of the claims set forth in defendant's
December 2005 postconviction petition because the claims them-
selves are not properly before us. We reiterate what we said in
DeBerry that "when, as here, we are reviewing the dismissal of a
defendant's postconviction petition and we conclude that section
122-1(f) has been violated, we have nothing further to discuss or
review." DeBerry, 372 Ill. App. 3d at 1060, 868 N.E.2d at 385.
Our dissenting colleague states that we should not
allow the State to raise for the first time in this court the
issue that defendant failed to obtain leave from the trial court
to file a successive postconviction petition. He also criticizes
the State for not raising the issue in the trial court and
asserts that it gained an advantage by not doing so. Our dis-
senting colleague's criticism of the State is unwarranted. As
our opinion points out, the trial court dismissed defendant's
postconviction petition upon finding that it was frivolous and
patently without merit. The trial court's determination was at
the first stage of the postconviction petition process and
occurred in accordance with section 122-2.1 of the Act (725 ILCS
5/122-2.1 (West 2004)). During such first-stage scrutiny, a
trial court should review a petition without any State input.
See People v. Jones, 211 Ill. 2d 140, 144, 809 N.E.2d 1233, 1236
(2004) (the trial court's review at the first stage "is independ-
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ent, as the Act does not permit any further pleadings from the
defendant, or any motions, responsive pleadings, or other input
from the State"); People v. Gaultney, 174 Ill. 2d 410, 419, 675
N.E.2d 102, 107 (1996) ("reversal is required where the record
shows that the circuit court sought or relied on input from the
State when determining [at the first stage] whether the petition
is frivolous"). In People v. Williams, 364 Ill. App. 3d 1017,
1022, 848 N.E.2d 254, 258 (2006), this court recently wrote that
at the first stage, "the Act does not permit any further plead-
ings from the defendant or any motions or responsive pleadings
from the State." Accordingly, our dissenting colleague criti-
cizes the State for not taking action the law specifically
prohibits it from taking.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
KNECHT, J., concurs.
COOK, J., dissents.
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JUSTICE COOK, dissenting:
I would address the ruling of the trial court. We
should not allow the State to raise for the first time in this
court the issue that defendant failed to obtain leave from the
trial court to file a successive postconviction petition. The
State gains an advantage by raising these issues for the first
time in the reviewing court. "If the State had raised the issue
in the trial court, the trial court may have granted leave to
file the petition or allowed it to be amended." DeBerry, 372
Ill. App. 3d at 1061, 868 N.E.2d at 385 (Cook, J., dissenting).
Even if the trial court denied leave to amend, raising the issue
in the trial court would have saved the trial court time and
effort, the purpose of section 122-1(f). If the State was
dissatisfied with the trial court's ruling, it could have filed
an objection after the ruling was received.
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