ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Bland, 2011 IL App (4th) 100624
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption STACEY BLAND, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-10-0624
Filed December 2, 2011
Held Where defendant filed a pro se motion seeking to vacate his theft
(Note: This syllabus conviction following his unsuccessful appeal and the motion cited both
constitutes no part of section 2-1401 of the Code of Civil Procedure and the Post-Conviction
the opinion of the court Hearing Act and defendant said that he wanted to proceed under the Act
but has been prepared when the trial judge sought clarification as to how defendant wanted to
by the Reporter of proceed, the trial court’s subsequent dismissal of the motion was reversed
Decisions for the and the cause was remanded with directions to proceed to the second
convenience of the stage of postconviction proceedings and appoint counsel to represent
reader.)
defendant, since the trial court considered input from the State when it
dismissed defendant’s motion without appointing postconviction counsel
to represent defendant as required by the Act.
Decision Under Appeal from the Circuit Court of Sangamon County, No. 06-CF-227; the
Review Hon. Esteban F. Sanchez, Judge, presiding.
Judgment Reversed and remanded with directions.
Counsel on Michael J. Pelletier, Karen Munoz, and Susan M. Wilham, all of State
Appeal Appellate Defender’s Office, of Springfield, for appellant.
John P. Schmidt, State’s Attorney, of Springfield (Patrick Delfino, Robert
J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justices Appleton and McCullough concurred in the judgment and
opinion.
OPINION
¶1 In May 2006, a jury convicted defendant, Stacey Bland, of theft (720 ILCS 5/16-1(a)(1)
(West 2006)). In August 2006, the trial court sentenced him to seven years in prison.
Defendant appealed, and this court affirmed (People v. Bland, No. 4-07-0592 (August 28,
2008) (unpublished order pursuant to Supreme Court Rule 23)).
¶2 In October 2009, defendant pro se filed a “Motion to Vacate Judgment,” citing section
2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)) and section
122-1 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 (West 2008)). At the trial
court’s urging, the State responded by filing a motion to dismiss. Following a May 2010
hearing at which (1) the court asked defendant to clarify whether he wished to proceed under
the Code or the Act and (2) defendant responded that he wished to proceed under the Act,
the court granted the State’s motion to dismiss.
¶3 Defendant appeals, arguing that (1) the trial court erred by failing to properly admonish
him prior to recharacterizing his pleading, and (2) alternatively, the court erred by dismissing
his petition without appointing counsel for him. Because we agree that the court erred by
failing to appoint counsel, we reverse and remand with directions.
¶4 I. BACKGROUND
¶5 Following defendant’s May 2006 theft conviction, the trial court sentenced him to seven
years in prison. Defendant appealed, and this court affirmed (People v. Bland, No. 4-07-0592
(August 28, 2008) (unpublished order pursuant to Supreme Court Rule 23)).
¶6 In October 2009, defendant pro se filed a “Motion to Vacate Judgment,” citing section
2-1401 of the Code (735 ILCS 5/2-1401 (West 2008)) and section 122-1 of the Act (725
ILCS 5/122-1 (West 2008)). In his motion, defendant requested the appointment of counsel.
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At the trial court’s urging, the State responded by filing a motion to dismiss, in which the
State argued that although it was unclear from defendant’s pleading whether he wished to
proceed under the Code or the Act, defendant’s pleading should be dismissed because it was
untimely and baseless under either characterization.
¶7 In May 2010, the trial court initiated a hearing at which defendant participated by
telephone and the prosecutor participated from the trial judge’s chambers. At the outset, the
prosecutor outlined why the hearing was being held, as follows:
“Judge, initially, the threshold determination as to what type of petition or motion
that [defendant] filed *** needs to be addressed. I will specifically state from the outset
that I don’t think from the State’s perspective it really concerns us as to whether it is a
[p]ost-conviction [p]etition or a [p]etition for [p]ost-judgment [r]elief under the Code of
Civil Procedure.
Judge, I spent several pages in my motion discussing the various issues with respect
to that, and I think, for the sake of clarity, [defendant] characterized this as a [section] 2-
1401 *** [p]etition ***, and perhaps we ought to just address it as such. But I can
address it if it were to be characterized as a [p]ost-conviction [p]etition.”
The prosecutor then explained the reasons why defendant’s petition should fail under either
characterization. Defendant, who was unrepresented at the hearing, responded by attempting
to address the prosecutor’s points.
¶8 Following defendant’s argument, the trial court asked defendant to clarify whether he
wished to proceed under the Code or the Act.
“Let me ask you a question, [defendant].
***
You petitioned the Court, and you stated here that you are only seeking to vacate the
sentence because *** you feel that the sentence is illegal. But you filed your [p]etition
under the Civil Rules of Procedure[,] 735 ILCS 5/2-1401. *** [B]ut there is some ***
reference in the body of your motion to the Post-[C]onviciton Hearing Act. Are you ***
asking to proceed under the Civil Procedure Act or under the *** Post-[C]onviction
Hearing Act.”
¶9 Defendant responded as follows: “I’m going to *** go with the post-conviction, Your
Honor.” The trial court clarified by asking defendant, “You’re going to go with the post-
conviction?” Defendant confirmed, “Right.” The court further clarified, “Are you sure? You
are asking me to treat this [p]etition as a [p]ost-conviction [p]etition; is that correct?”
Defendant again confirmed, “Yes, sir, Your Honor. I’m *** not going to change a thing. I’m
going to stay with the post-conviction.” The court then took the matter under advisement.
¶ 10 In August 2010, the trial court entered a written order granting the State’s motion to
dismiss. That written order (1) began by explaining that the order “addresses the State’s
Motion to Dismiss” and (2) concluded as follows, “Based upon the forgoing reasons, the
Motion to Dismiss the Petition for Post Conviction Relief and Vacate Judgment is hereby
granted.”
¶ 11 This appeal followed.
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¶ 12 II. ANALYSIS
¶ 13 Defendant argues that (1) the trial court erred by failing to properly admonish him prior
to recharacterizing his pleading, and (2) alternatively, the court erred by dismissing his
pleading, without appointing counsel for him. We address defendant’s contentions in turn.
¶ 14 A. Defendant’s Claim That the Trial Court Erred by Failing To
Properly Admonish Him Prior To Recharacterizing His Pleading
¶ 15 Defendant contends that the trial court erred by failing to properly admonish him prior
to recharacterizing his pleading. Specifically, defendant asserts that the court failed to inform
him that he had the option to withdraw or amend his pleading to comply with the Act as
required by People v. Shellstrom, 216 Ill. 2d 45, 833 N.E.2d 863 (2005). Because we
conclude that the court did not “recharacterize” defendant’s pleading, but instead merely
sought to clarify an ambiguous postjudgment filing, we disagree.
¶ 16 1. Standard of Review
¶ 17 We review de novo the question of whether the trial court has used the proper procedure
in complying with the supreme court’s mandate in Shellstrom. People v. Corredor, 399 Ill.
App. 3d 804, 806, 927 N.E.2d 1231, 1232 (2010).
¶ 18 2. The Supreme Court’s Directive in Shellstrom
¶ 19 In Shellstrom, the defendant pro se filed a pleading entitled “Motion to Reduce Sentence,
Alternatively, Petition for Writ of Mandamus to Order Strict Compliance with Terms of
Guilty Plea.” Shellstrom, 216 Ill. 2d at 48, 833 N.E.2d at 866. The trial court later sua sponte
treated–or “recharacterized”–the defendant’s pleading as a postconviction petition and
summarily dismissed it. Shellstrom, 216 Ill. 2d at 49, 833 N.E.2d at 866. The defendant was
not present, had no notice, and had no opportunity to respond to the court’s dismissal of his
petition. Shellstrom, 216 Ill. 2d at 49, 833 N.E.2d at 866.
¶ 20 The defendant appealed, arguing, in pertinent part, that he should have been provided
notice that the trial court intended to treat his pleading as a first postconviciton petition.
Shellstrom, 216 Ill. 2d at 53-54, 833 N.E.2d at 868. The supreme court agreed, holding that
when a trial court sua sponte recharacterizes a pleading as a first postconviciton petition, the
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 pleadings or amend it so that it contains
all the claims appropriate to a postconviction petition that the litigant believes he has.
Shellstrom, 216 Ill. 2d at 57, 833 N.E.2d at 870.
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¶ 21 3. Defendant’s Pleading and the Trial Court’s Action in This Case
¶ 22 In this case, defendant pro se filed a “Motion to Vacate Judgment,” citing section 2-1401
of the Code (735 ILCS 5/2-1401 (West 2008)) and section 122-1 of the Act (725 ILCS
5/122-1 (West 2008)). At the trial court’s urging, the State responded by filing a motion to
dismiss. The record shows that the reason the court urged the State to file a motion in
response to defendant’s pleading–and subsequently held a hearing–was to establish whether
defendant’s intent was to file a petition under section 2-1401 of the Code or a petition under
section 122-1 of the Act. In this regard, this case is squarely inapposite of Shellstrom.
¶ 23 As previously explained, Shellstrom stands for the proposition that when a trial court sua
sponte recharacterizes a pleading as a first postconviction petition, the court must provide
the defendant certain admonishments. See People v. Stoffel, 389 Ill. App. 3d 238, 243, 907
N.E.2d 79, 84 (2009) (“Because of the defendant’s repeated requests to recharacterize his
section 2-1401 petition as a postconviction petition, the trial court would not have had to take
sua sponte action, the concerns raised in Shellstrom would not apply, and no Shellstrom
warnings would need to have been provided.”). Here, the court did not sua sponte
recharacterize defendant’s pleading. Instead, the court (1) asked the State to respond to
defendant’s pleading and (2) initiated a May 2010 hearing to ascertain defendant’s intent. At
that May 2010 hearing, defendant made clear that he intended to file–and have his pleading
evaluated as–a petition for postconviction relief. Pursuant to defendant’s direction, the court
treated defendant’s pleading as a postconviction petition.
¶ 24 Because the trial court did not sua sponte recharacterize defendant’s pleading, the court
was not required to admonish defendant pursuant to Shellstrom. Accordingly, we reject
defendant’s contention that the court erred by failing to properly admonish him prior to
“recharacterizing” his pleading.
¶ 25 B. Defendant’s Claim That the Trial Court Erred by Dismissing
His Pleading Without Appointing Counsel for Him
¶ 26 Alternatively, defendant contends that the trial court erred by dismissing his pleading
without appointing counsel for him after receiving input from the State. Specifically,
defendant asserts that even if we conclude that the court complied with Shellstrom, the court
erred by failing to appoint counsel for him before dismissing his petition at what amounted
to a second-stage postconviction proceeding. The State responds that because defendant’s
petition had not reached the first stage of postconviction proceedings when the court
accepted its input, defendant’s contention must fail. We agree with defendant.
¶ 27 1. Postconviction Proceedings
¶ 28 In People v. Andrews, 403 Ill. App. 3d 654, 658-59, 936 N.E.2d 648, 652-53 (2010), this
court outlined postconviction proceedings under the Act, as follows:
“A defendant may proceed under the Act by alleging that ‘in the proceedings which
resulted in his or her conviction[,] there was a substantial denial of his or her rights under
the Constitution of the United States or of the State of Illinois or both.’ 725 ILCS 5/122-
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1(a)(1) (West 2006). In noncapital cases, the Act establishes a three-stage process for
adjudicating a postconviction petition. 725 ILCS 5/122-1 through 122-8 (West 2006);
People v. Jones, 213 Ill. 2d 498, 503, 821 N.E.2d 1093, 1096 (2004). At the first stage,
‘the trial court, without input from the State, examines the petition only to determine if
[it alleges] a constitutional deprivation unrebutted by the record, rendering the petition
neither frivolous nor patently without merit.’ (Emphasis in original.) People v. Phyfiher,
361 Ill. App. 3d 881, 883, 838 N.E.2d 181, 184 (2005). ‘Section 122-2.1 [of the Act]
directs that if the defendant is sentenced to imprisonment (rather than death) and the
circuit court determines that the petition is frivolous or patently without merit, it shall be
dismissed in a written order. 725 ILCS 5/122-2.1(a)(2) (West 2004).’ People v. Torres,
228 Ill. 2d 382, 394, 888 N.E.2d 91, 99-100 (2008).
If a petition is not dismissed at stage one, it proceeds to stage two, where section 122-
4 of the Act provides for the appointment of counsel for an indigent defendant who
wishes counsel to be appointed. 725 ILCS 5/122-4 (West 2006). At the second stage, the
State has the opportunity to answer or move to dismiss the petition. 725 ILCS 5/122-5
(West 2006). If the trial court does not grant the State’s motion to dismiss or if the State
has filed an answer, the petition proceeds to the third stage, where the defendant may
present evidence in support of his petition. 725 ILCS 5/122-5, 122-6 (West 2006).”
¶ 29 2. The Proceedings in This Case
¶ 30 In this case, the trial court entered a written order addressing defendant’s postjudgment
pleading after clarifying that defendant intended to file that pleading as a postconviction
petition. Our review of that written order, however, belies the State’s assertion that the court
did not accept input from the State when it dismissed defendant’s petition. Indeed, the court’s
order (1) began by explaining that the order “addresses the State’s Motion to Dismiss,” (2)
concluded as follows, “Based upon the forgoing reasons, the Motion to Dismiss the Petition
for Post Conviction Relief and Vacate Judgment is hereby granted,” and (3) did not mention
the frivolous-or-patently-without-merit standard required for a first-stage dismissal.
¶ 31 Given that the proceedings below and the trial court’s written order each show that the
court considered input from the State without appointing postconviction counsel to represent
defendant as required by the Act, we reverse and remand with directions that the court
proceed to the second stage of postconviction proceedings. See People v. Carter, 383 Ill.
App. 3d 795, 798, 892 N.E.2d 1082, 1085 (2008) (remanding for second-stage proceedings
because the trial court improperly dismissed the defendant’s petition at the first stage without
determining whether the defendant’s constitutional claims were frivolous or patently without
merit, under the mistaken belief that the petition was the defendant’s second postconviction
petition).
¶ 32 III. CONCLUSION
¶ 33 For the reasons stated, we reverse the trial court’s judgment and remand with directions
that the court (1) proceed to the second stage of postconviction proceedings and (2) appoint
counsel to represent defendant.
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¶ 34 Reversed and remanded with directions.
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