dissenting:
I respectfully dissent. Previous decisions have required pro se petitioners to state only “the gist of a claim” in order to survive dismissal at the first stage of a post-conviction proceeding. The majority concedes petitioner states the gist of a claim here: “her first claim would suffice (if properly supported) to at least afford a basis for relief under the Act.” 242 Ill. App. 3d at 948.
Even before the 1983 amendments, which added section 122 — 2.1 to the Act, post-conviction petitioners were not automatically entitled to an evidentiary hearing. There were obstacles, strict pleading requirements which were difficult to overcome. Before an evidentiary hearing was required petitioner had to make a substantial showing of a violation of constitutional rights, and to do that the allegations in the petition had to be supported by the record or by accompanying affidavits, unless their absence was sufficiently explained. The petition or the affidavits had to identify with reasonable certainty the source, character, and availability of the alleged evidence supporting the petition’s allegations. (People v. Curtis (1971), 48 Ill. 2d 25, 28, 268 N.E.2d 29, 30.) Section 122 — 5 of the Act still allows a trial court to dismiss a petition as the court did in Curtis, following motion and argument by the State. (111. Rev. Stat. 1991, ch. 38, par. 122 — 5.) In Curtis, however, and in every case decided under section 122 — 5, defendant was represented by counsel at the time the petition was dismissed. It is one thing to dismiss a post-conviction petition for failure to comply with technical pleading requirements when petitioner is represented by counsel, but it is quite another when petitioner is pro se. The cases which the majority opinion cites to support imposition of strict pleading requirements, Eddmonds, and even Williams, are cases where defendant was in fact represented by counsel. Defendant was not represented by counsel in Lawrence, but the cases upon which Lawrence relies also involved defendants represented by counsel. Defendant was not represented by counsel in Porter, but Porter does not take a hard line on pleadings, accepting the gist of a claim as sufficient.
This court resolved what was necessary for a pro se petition in its 1986 decision in Dredge. In Dredge, petitioner alleged in her post-conviction petition that her trial counsel “did not allow her to testify on her own behalf.” (Dredge, 148 Ill. App. 3d at 912, 500 N.E.2d at 446.) The petition was verified, but unsupported by affidavit, the record, or other evidence; Despite the State’s argument that the allegation was conclusory, this court found the petition adequately stated a claim of deprivation of defendant’s constitutional right to testify. The trial court was accordingly required to appoint counsel and docket the cause for further, second stage, consideration.
“In determining the particularity with which a pro se petitioner for post-conviction relief must state alleged deprivations of constitutional rights in her petition, we note that such petitioners are often persons of limited education. (See Rodriquez v. United States (1969), 395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715; People v. Wilson (1986), 146 Ill. App. 3d 567[, 499 N.E.2d 972].) Therefore, we conclude that in order to withstand dismissal at the first stage of post-conviction proceedings, a petition for post-conviction relief need only contain a simple statement which presents the gist of a claim for relief which is meritorious when considered in view of the record of the trial court proceedings. (See People v. Baugh (1985), 132 Ill. App. 3d 713, 477 N.E.2d 724.) Requiring pro se petitioners to state their claims in greater detail than this would have the practical effect of depriving many such persons of their right of meaning- j ful access to the courts. (Cf. People v. Wilson (1986), 146 Ill. App. 3d 567[, 499 N.E.2d 972].) Judged by this standard, defendant’s petition adequately states a claim of deprivation of her constitutional right to testify at trial.” (Dredge, 148 Ill. App. 3d at 913, 500 N.E.2d at 446-47.)
If we are now abandoning Dredge we should say so.
A number of cases have followed Dredge. In People v. White (1987), 152 Ill. App. 3d 404, 408-09, 504 N.E.2d 520, 523-24, this court reversed the summary dismissal of a petition which alleged petitioner was denied due process because his indictment was based on perjured testimony. There we stressed the difference between first- and second-stage dismissal. (See also People v. Jones (1988), 168 Ill. App. 3d 925, 937, 522 N.E.2d 1325, 1333 (“Given the low standard which a petitioner must meet in order to proceed beyond the threshold evaluation of his petition, we hold that Jones sufficiently alleged meritorious constitutional claims”).) In Von Perbandt (221 Ill. App. 3d at 956, 583 N.E.2d at 92), the State argued the petition for post-conviction relief did not allege that defendant actually asked his trial counsel to testify and that trial counsel refused. The appellate court, reversing, rejected that argument at “the first stage of the post-conviction proceeding, where very little detail appears to be required of the petitioner.” Von Perbandt, 221 Ill. App. 3d at 956, 583 N.E.2d at 93.
There are at least three levels of pleading: (1) the lowest level is mere notice pleading; (2) at a higher level, the pleader may not just give notice, but must set out the facts which support his cause of action; (3) at an even higher level the pleader is required, not just to state facts, but to support them with affidavits, or by references to the record. It is not clear whether the majority requires level (2) or level (3) compliance here. The majority says that it is just not that tricky for defendant to provide the particulars underlying her allegation of coercion (Dredge disagrees), but goes on to note the Act requires that a petition be supported by affidavits, records, or other evidence, and the legislature did not intend to reduce those requirements when it added section 122 — 2.1 to the Act. Dredge requires something close to level (1), the lowest pleading level. Dredge certainly did not require a pro se petitioner to attach affidavits or point to evidence in the record, both of which usually require some legal ability. Nor did Dredge impose much of a burden of stating facts: only a simple statement which presented the gist of a claim was necessary. The one requirement Dredge imposed beyond notice pleading was that an allegation contradicted by something appearing in the trial record would not be sufficient. While previously a petition was not sufficient unless it was supported by the record or by accompanying affidavits, a pro se petition was sufficient under Dredge unless contradicted by the record.
A petition which does not “have attached thereto affidavits, records, or other evidence supporting its allegations” (Ill. Rev. Stat. 1991, ch. 38, par. 122 — 2) is not necessarily “frivolous or *** patently without merit” (Ill. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(a)(2)). Both the terms “frivolous” and “patently without merit” seem to address the merits of the petition, not technicalities of pleading. We should not expand section 122 — 2.1 of the Act to cover every deficiency which could be addressed under section 122 — 5 of the Act. (White, 152 Ill. App. 3d at 407, 504 N.E.2d at 523 (section 122 — 2.1 should not be given an expanded interpretation).) Section 122 — 2.1 of the Act would appear to be concerned with unusually bad petitions. Not every unsuccessful petition is frivolous. In White, this court held that an issue, probably without merit, was too complicated to be found to be “frivolous” or “patently without merit” (emphasis in original). White, 152 Ill. App. 3d at 408, 504 N.E.2d at 523.
Courts are traditionally reluctant to attempt any kind of summary resolution of a case on its merits, and the majority disclaims any intention to do so here. Once a court gets into the merits it is difficult to find a stopping point short of a full evidentiary hearing. Still, before the 1983 amendments it would appear some consideration was given to the merits on a motion to dismiss a post-conviction petition. A court which requires “a substantial showing” of a constitutional violation before setting a case for evidentiary hearing probably gives some consideration to the weight of the evidence.
Since the 1983 amendments, section 122 — 2.1 of the Act allows summary dismissal of a petition which is “patently without merit” (emphasis added) (111. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(a)(2)), and allows the court to examine the court file and any transcripts. (111. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(c); see also People v. Baugh (1985), 132 Ill. App. 3d 713, 717, 477 N.E.2d 724, 726 (section 122 — 2.1 requires that post-conviction petitions be reviewed for “merit” before proceeding to the stage requiring proof).) It is difficult to believe that some appellate decisions upholding the dismissal of post-conviction petitions as frivolous or patently without merit were limited to the sufficiency of the pleadings. In other cases filed this day this court affirms the summary dismissal of articulate petitions, stating constitutional claims, with affidavits attached. People v. Prier (1993), 245 111. App. 3d 1037, 1041-42 (defendant failed to allege facts demonstrating compliance with the prejudice prong of Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052); People v. Ramirez (1993), 242 Ill. App. 3d 954.
Porter and Baugh suggest that once the gist of a claim is stated the court should proceed, not to appoint counsel, but to decide whether the claim is frivolous or patently without merit. (Porter, 122 Ill. 2d at 74, 521 N.E.2d at 1161.) That decision should be based on the merits, not the form of the pleadings, although in section 122— 2.1(a)(2) the use of the word “patently” indicates that any consideration of the merits should be a limited one. (111. Rev. Stat. 1991, ch. 38, par. 122 — 2.1(a)(2).) Dredge indicates where the stopping point is to be found: what is stated in the pleading is to be accepted unless there is a basis for rejecting it on the merits; unless it is contradicted by something which appears in the trial record. A trial court (or an appellate court) is not limited to what is said in the petition, and may decide a post-conviction petition by what it finds in the record, although a trial court is not bound to search the record in the absence of allegations “raising” a relevant issue. (Porter, 122 Ill. 2d at 76, 521 N.E.2d at 1162.) Of course some matters, such as what counsel told defendant, will not be included in the trial record. Dredge allows a trial court to reject naked allegations which are refuted by something in the record. Dredge may also allow a trial court to reject allegations which have some support in affidavits or otherwise, if those allegations are clearly overcome by other information in the record. Dredge does not, however, allow allegations to be rejected at the first stage just because the trial court is unaware of any factual support for them, as the majority opinion does here.
A petition which does not even state the gist of a claim should be dismissed without proceeding any further. The majority’s most persuasive argument is that the petition here was not sufficiently specific. Porter does say that a petitioner under the Act “must set forth the specific manner in which his rights were violated,” and cites section 122 — 2.1 for that proposition. (Porter, 122 Ill. 2d at 74, 521 N.E.2d at 1161.) (The appropriate reference would appear to be to section 122 — 2 of the Act.) Still, Porter is not inconsistent with Dredge. To explain what “specific” means, Porter (122 Ill. 2d at 74, 521 N.E.2d at 1161) quotes the “gist of [a] claim” language from Baugh, repeated in Dredge. The majority argues the petition here had “zero specificity” (emphasis in original) (242 Ill. App. 3d at 947), but surely that is not correct. The petition did more than assert that petitioner was entitled to relief under the Act, and did more than assert that counsel was ineffective or did not do a good job. Petitioner does not simply “indicate, without more, that [she] wish[es] to seek post-conviction relief.” (Porter, 122 Ill. 2d at 75, 521 N.E.2d at 1162.) Specificity is a relative thing as any petition could be made more specific, but section 122 — 2.1 of the Act does not give petitioner a second chance. As previously mentioned, the majority concedes petitioner states the gist of a claim which would afford a basis for relief under the Act. Neither Porter nor Dredge requires petitioner to be any more specific than that. Petitioner’s allegation that she was coerced by counsel into accepting a 15-year sentence is as specific as the allegation in Dredge that counsel did not allow that petitioner to testify in her own behalf.
The right to counsel at a post-conviction proceeding is a matter of legislative grace and favor. (Porter, 122 Ill. 2d at 73, 521 N.E.2d at 1161.) If the legislature intended that post-conviction petitioners should not have counsel, it could easily have drafted such a rule, but no such language appears in the Act. Surely the legislature would not have provided a right to counsel which was only illusory: a right which would come into existence only if a pro se petitioner met an impossible pleading burden.