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Appellate Court Date: 2020.06.18
11:34:52 -05'00'
People v. Cook, 2019 IL App (1st) 161428
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption RORY COOK, Defendant-Appellant.
District & No. First District, First Division
No. 1-16-1428
Filed September 23, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 99-CR-10066; the
Review Hon. Neera L. Walsh, Judge, presiding.
Judgment Vacated and remanded with directions.
Counsel on James E. Chadd, Patricia Mysza, and Deepa Punjabi, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Annette Collins, and Joseph Alexander, Assistant State’s Attorneys,
of counsel), for the People.
Panel JUSTICE WALKER delivered the judgment of the court, with
opinion.
Presiding Justice Mikva and Justice Pierce concurred in the judgment
and opinion.
OPINION
¶1 Following a 2000 jury trial, defendant, Rory Cook, was convicted of first degree murder
and sentenced to 30 years’ imprisonment. We affirmed on direct appeal. People v. Cook, 352
Ill. App. 3d 108 (2004). We affirmed the dismissal of his 2005 postconviction petition and the
denial of leave to file a successive postconviction petition in 2012. People v. Cook, 2013 IL
App (1st) 111551-U; People v. Cook, 2015 IL App (1st) 123236-U. We also affirmed the denial
of defendant’s 2013 pro se “Motion for Prosecutorial Misconduct,” denial of his 2014
mandamus petition, denial of his 2015 motion for forensic testing, and dismissal of his 2015
petition for relief from judgment. 1
¶2 Defendant now appeals from the circuit court’s disposition of his pro se “Motion for New
Trial for Newly Discovered Evidence, State’s Miscarriage of Justice for Witholding [sic]
Evidence in Defendants [sic] Judicial Proceedings.” Defendant’s contention is that the court
erred in recharacterizing his motion as a successive postconviction petition and denying leave
to file it without first notifying him and giving him an opportunity to withdraw or amend it.
For the reasons stated below, we vacate the denial of leave to file and remand for the requisite
notice and opportunity to withdraw or amend the motion.
¶3 I. BACKGROUND
¶4 Defendant filed his “Motion for New Trial for Newly Discovered Evidence, State’s
Miscarriage of Justice for Witholding [sic] Evidence in Defendants [sic] Judicial Proceedings”
on December 31, 2015. He did not name or cite any statute as a basis for the filing. In the
motion, defendant claimed newly discovered evidence showed he was not proved guilty
beyond a reasonable doubt, he was actually innocent, and he was wrongfully convicted.
Defendant claimed he was denied a fair trial and due process of law because the State withheld
evidence from the jury and made prejudicial, inflammatory, and erroneous statements in
closing argument, and the trial court erred in denying his motion to suppress. Defendant did
not support the motion with attachments.
¶5 On April 1, 2016, the circuit court issued an order finding that defendant’s filing of
December 31, 2015, asserted constitutional claims as a collateral attack on his conviction and
characterized the filing as a successive postconviction petition. In the same order, the court
denied leave to file the petition, finding defendant’s claims barred by waiver and res judicata
and he did not state the requisite cause and prejudice for a successive postconviction petition.
¶6 II. ANALYSIS
¶7 On appeal, defendant’s sole contention is that the court erred by recharacterizing his pro se
“pleading” as a successive postconviction petition without notice and an opportunity to amend
or withdraw the “pleading,” as required by People v. Shellstrom, 216 Ill. 2d 45 (2005), and
People v. Pearson, 216 Ill. 2d 58 (2005). The State does not dispute that the court characterized
defendant’s filing as a successive postconviction petition without providing said notice and
opportunity. It contends, however, that the court was not required to do so because defendant’s
1
Defendant has two other pending appeals proceeding separately from this appeal (case Nos. 1-17-
3032 and 1-18-1105).
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filing was not a pleading commencing an action cognizable under Illinois law. See id. at 68
(holding the three-step Shellstrom notice procedure applies to “recharacterizing as a successive
postconviction petition a pleading that a pro se litigant has labeled as a different action
cognizable under Illinois law” (emphases added)).
¶8 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(a)(1) (West 2016)) allows a
defendant to file a petition claiming 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.” Generally, a defendant may file only one
petition under the Act without leave of court, and claims not raised in an initial petition as
amended are waived. Id. §§ 122-1(f), 122-3. Leave to file a successive petition is granted if the
defendant can show cause for not raising the new claim in an earlier proceeding and
prejudice—a deprivation of due process—from not raising it earlier. Id. § 122-1(f). Thus, the
requirements for filing a successive postconviction petition are higher than those for an initial
postconviction petition. See Shellstrom, 216 Ill. 2d at 55-56 (cause-and-prejudice test is “not
easy to overcome”); Pearson, 216 Ill. 2d at 68 (“rigorous standards of a successive
postconviction petition”).
¶9 It is well settled that the circuit court can recharacterize a pro se pleading alleging a
deprivation of rights cognizable in a postconviction proceeding but not labeled a
postconviction petition, even one clearly labeled as something else. Shellstrom, 216 Ill. 2d at
51-53; Pearson, 216 Ill. 2d at 66-67.
¶ 10 However, the Shellstrom court warned that, if the circuit court “could summarily
recharacterize as a first postconviction petition a pro se litigant’s pleading that was labeled
differently” without an opportunity for the litigant to respond,
“the pleading that was transformed into the litigant’s first postconviction petition would
present only those arguments that the litigant had chosen to include before realizing
that he was, in effect, filing a postconviction petition. Any additional arguments that
the litigant might have included in a first postconviction petition would be barred from
successive petitions unless the litigant could demonstrate cause for failing to bring them
and prejudice resulting from that failure.” (Emphasis in original.) Shellstrom, 216 Ill.
2d at 56.
The Shellstrom court therefore held that
“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 (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. If the court fails to do so, the pleading cannot be
considered to have become a postconviction petition for purposes of applying to later
pleadings the Act’s restrictions on successive postconviction petitions.” (Emphases
added.) Id. at 57.
¶ 11 The Shellstrom defendant had not previously filed a petition under the Act before filing a
pro se “Motion to Reduce Sentence, Alternatively, Petition for Writ of Mandamus to Order
Strict Compliance with Terms of Guilty Plea.” The circuit court recharacterized the pleading
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as a postconviction petition without informing the defendant and summarily dismissed it. Id.
at 57-58. Because the Shellstrom defendant was not given an opportunity to withdraw or amend
his pleading to include whatever additional postconviction claims he thought fit, the supreme
court vacated the summary dismissal and remanded for the circuit court to give the defendant
that opportunity. Id.
¶ 12 In Pearson, filed the same day as Shellstrom, the supreme court held that the three-step
Shellstrom procedure applies to “recharacterizing as a successive postconviction petition a
pleading that a pro se litigant has labeled as a different action cognizable under Illinois law.”
(Emphases added.) Pearson, 216 Ill. 2d at 68. Because the circuit court in Pearson neither
notified the defendant that recharacterizing his section 2-1401 petition (735 ILCS 5/2-1401
(West 2000)) as a successive postconviction petition would require it to satisfy the
requirements of a successive postconviction petition, nor gave the defendant the opportunity
to withdraw or amend it, the supreme court remanded for the circuit court to do so. Pearson,
216 Ill. 2d at 69.
¶ 13 Thus, as the State argues here, Shellstrom and Pearson include a proviso that the
recharacterized pro se filing was a pleading stating an action cognizable under Illinois law.
The State argues the three-step Shellstrom/Pearson procedure was therefore not required for
recharacterization of defendant’s filing because his motion for a new trial was not a pleading
cognizable under Illinois law, such as the mandamus pleading at issue in Shellstrom and the
section 2-1401 pleading in Pearson. It asserts defendant’s 2015 pro se motion for a new trial
did not set forth a cognizable claim at all, as it was untimely filed years after the 2000 trial and
the trial court had no jurisdiction to consider it. See 725 ILCS 5/116-1(b) (West 2016) (motion
for a new trial must be filed within 30 days following the entry of a finding or the return of a
verdict).
¶ 14 However, since Shellstrom and Pearson, our supreme court has decided People v.
Swamynathan, 236 Ill. 2d 103, 106 (2010), in which the circuit court recharacterized a
defendant’s untimely pro se motion to withdraw his guilty plea and vacate his sentence as a
postconviction petition. The circuit court provided the defendant the Shellstrom
admonishments, including the opportunity to withdraw or amend his filing, but the final
admonishment was not given until months after the first. Id. at 107-10. When the circuit court
then summarily dismissed the recharacterized petition, the defendant contended on appeal that
his petition was improperly summarily dismissed more than 90 days after its filing and
docketing in violation of the Act. Id. at 110-11. The question before the supreme court was
when did the 90-day time period start to run: at the time the initial Shellstrom admonishment
was given or at the time Shellstrom was fully complied with months later. Id. The court
determined the defendant’s motion became a postconviction petition only when defendant
received the full Shellstrom admonitions. Id. at 113.
¶ 15 The Swamynathan court stated that, “[i]f a trial court determines that recharacterization is
appropriate, the court must take certain steps to insure that the defendant is admonished of the
consequences of recharacterization” and then recited the Shellstrom procedure. Id. at 112
(citing Shellstrom, 216 Ill. 2d at 57). It analyzed the Act in light of Shellstrom and concluded
“that the Act’s 90-day rule could not apply to a recharacterized petition until the defendant was
fully admonished under Shellstrom and recharacterization was fully completed.” Id. at 113. It
found “that any review of a recharacterized petition prior to full Shellstrom admonishments
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would be futile, as it would require the review of claims that are likely to be altered” pursuant
to the opportunity to withdraw or amend. Id. at 115.
¶ 16 As in the instant case, where defendant styled his filing a motion for a new trial and sought
a new trial in his prayer for relief, the filing at issue in Swamynathan was a motion usually
filed in the original criminal proceedings but instead untimely filed well after the trial court
lost jurisdiction over the original conviction 30 days thereafter. See 725 ILCS 5/116-1(b) (West
2016); Ill. S. Ct. R. 604(d) (eff. July 1, 2017). In Swamynathan, our supreme court ruled that
Shellstrom applied to the untimely postplea motion at issue despite it not being a pleading
commencing a cognizable action other than a postconviction petition. We conclude that the
supreme court in Swamynathan ruled that Shellstrom admonishments always follow a
recharacterization, not just when the cognizable-action proviso applies. 2
¶ 17 This conclusion is consistent with the overall opinions in Shellstrom and Pearson. Both
cases support the circuit court’s broad authority to recharacterize filings not citing the Act as
petitions under the Act if they raise cognizable claims.
¶ 18 We note that the Second District of this court, in People v. Corredor, 399 Ill. App. 3d 804,
808 (2010), was “not persuaded that the supreme court intended the rule in Shellstrom to be
limited to filings over which the trial court has jurisdiction or, for that matter, ones that are
pleadings initiating actions.” It remarked that the cognizable-action requirement would unduly
limit the remedy for the problem recognized in Shellstrom—accidentally losing the right to file
an initial petition—because the “risk of accidental loss of claims is likely at its highest when a
defendant has filed something that he or she thinks of as a mere motion, for instance, a motion
for reduction of sentence that slightly misses the filing deadline.” Id.
¶ 19 The Corredor court found support for its stance in Swamynathan, where the recharacterized
filing was a defendant’s untimely pro se motion to withdraw his guilty plea and vacate his
sentence. Corredor explained:
“Although the trial court would have lacked jurisdiction over this filing as a motion
and although the defendant did not label the filing as a pleading initiating an action, the
supreme court nevertheless cited Shellstrom for the proposition that ‘[i]f a trial court
determines that recharacterization is appropriate, the court must take certain steps [(the
Shellstrom admonitions)] to insure that the defendant is admonished of the
consequences of recharacterization.’ [Citation.] The supreme court did not suggest that
the admonitions were unneeded given the nature of the defendant’s filing. Admittedly,
the State did not raise the applicability of Shellstrom. Nevertheless, for the supreme
court to say in that context that recharacterization requires Shellstrom admonitions does
suggest that the court did not intend to limit the rule to recharacterization of filings that,
as initial pleadings, vest the trial court with jurisdiction.” Id. at 808-09 (quoting
Swamynathan, 236 Ill. 2d at 112).
¶ 20 Pursuant to Swamynathan and Corredor, we find that the circuit court erred by not giving
the defendant the three-part Shellstrom admonishments upon recharacterizing his pro se
motion as a successive postconviction petition and denying leave to file it as a successive
2
This does not include the later-recognized exception that the circuit court does not err when it does
not provide Shellstrom recharacterization admonishments if it appoints counsel upon the
recharacterized petition rather than summarily dismissing it. People v. Stoffel, 239 Ill. 2d 314, 328
(2010).
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postconviction petition. We remand for further proceedings consistent with this opinion.
¶ 21 III. CONCLUSION
¶ 22 Defendant was entitled to the Shellstrom admonitions prior to recharacterization of his
motion as a postconviction petition. Accordingly, the judgment of the circuit court is vacated
and remanded for the circuit court to provide defendant the Shellstrom admonishments.
¶ 23 Vacated and remanded with directions.
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