dissenting:
Does the Post-Conviction Hearing Act allow defendants to file amended petitions at the first stage of post-conviction proceedings? The answer is no.
My colleagues address a nonexistent issue, and I therefore cannot join in their opinion. The majority frames the issue as whether the filing of an amended post-conviction petition restarts the 90-day period in which the circuit court may dismiss a petition as frivolous or patently without merit. That issue need never be addressed, however, as the Act does not allow amended petitions at the initial stage of post-conviction proceedings.
The 90-day rule appears in section 122 — 2.1(a), while the provision allowing for amendments to the petition is found in section 122—5. Section 122—2.1(a) provides that, within 90 days of the filing of the petition, the court must determine if the petition is frivolous or patently without merit. If so, the court dismisses the petition. If not, the court dockets the petition “for further consideration in accordance with Sections 122—4 through 122—6.” 725 ILCS 5/122—2.1(b) (West 1996). Therefore, the plain language of the statute provides that section 122—5, the only section allowing amendments to the petition, applies only after the first stage of the proceedings.
That is how we construed the statute in People v. Gaultney, 174 Ill. 2d 410 (1996), a decision the majority appears to have forgotten. In Gaultney, we explained the stages of the post-conviction process in noncapital cases as follows:
“Pursuant to the Act, a post-conviction proceeding that does not involve the death penalty has three distinct stages. In the first stage, the defendant files a petition and the circuit court determines whether it is frivolous or patently without merit. At this stage, the Act does not permit any further pleadings from the defendant or any motions or responsive pleadings from the State. Instead, the circuit court considers the petition independently, without any input from either side. To survive dismissal at this stage, a petition need only present the gist of a constitutional claim. [Citation.] This is a low threshold and a defendant need only present a limited amount of detail in the petition. At this stage, a defendant need not make legal arguments or cite to legal authority. [Citation.] The Act provides that the petition must be supported by ‘affidavits, records, or other evidence supporting its allegations’ or the petition ‘shall state why the same are not attached.’ 725 ILCS 5/122—2 (West 1992). If the circuit court does not dismiss the petition pursuant to section 122—2.1, it is then docketed for further consideration.
The proceeding then advances to the second stage. At the second stage, the circuit court appoints counsel to represent an indigent defendant. 725 ILCS 5/122—4 (West 1992). Counsel may file an amended post-conviction petition. Also, at this second stage, the Act expressly provides that the State may file a motion to dismiss or answer to the petition. 725 ILCS 5/122—5 (West 1992). Section 122—5 specifically contemplates that the State will file a motion to dismiss or answer after the circuit court has evaluated the petition to determine if it is frivolous. If the circuit court does not dismiss or deny the petition, the proceeding advances to the third stage. At this final stage, the circuit court conducts an evidentiary hearing.” (Emphasis added.) Gaultney, 174 Ill. 2d at 418.
Thus, in Gaultney, we specifically recognized that no further pleadings from the defendant are allowed at the first stage and that the right to amend the petition does not exist until the second stage. The appellate court has also construed the Act as not allowing defendants to file further pleadings at the first stage. See, e.g., People v. Oury, 259 Ill. App. 3d 663, 667-68 (1994); People v. Novak, 200 Ill. App. 3d 189, 190-91 (1990); People v. Ramsey, 137 Ill. App. 3d 443, 447 (1985).
Further, Gaultney explicitly held that the State is allowed to file a motion to dismiss only at the second stage of the proceeding. We explained that section 122—5 contemplates that the State’s motion to dismiss cannot be filed until the second stage, and that a motion to dismiss filed before that stage is premature. Gaultney, 174 Ill. 2d at 418-19.
The provision of the Act allowing for amendments to the petition, like the provision allowing the State to file a motion to dismiss, is found in section 122—5. The majority’s analysis is premised entirely on section 122—5, yet the majority does not explain why the motion to dismiss provisions of that section apply only at the second stage, while the amendment provision applies at the first stage. Gaultney correctly recognized that section 122—5 applies only at the second stage. The majority inexplicably carves out one sentence from that section and holds that this one sentence applies at the first stage. I know of no rule of statutory construction that permits, let alone compels, this court to construe different sentences of the same cohesive paragraph in wholly contradictory terms.
I disagree with Chief Justice Freeman that we should repudiate Gaultney. Gaultney’s interpretation of the Act is just as correct now as it was three years ago when seven members of this court agreed with that interpretation.
Chief Justice Freeman states that, because section 122—5 allows the petition to be withdrawn at any stage of the proceeding, the petition may be amended at any stage of the proceeding. I disagree. Chief Justice Freeman accuses the dissent of reading section 122—5 in isolation, when it is in fact the majority that does so and refuses to consider it in conjunction with section 122—2.1(b). Neither the majority nor the concurring justice addresses section 122—2.1(b), which clearly provides that sections 122—4 through 122—6 apply only at the second stage. An exception is provided in section 122—5, which states that the petition may be withdrawn at any stage of the proceeding. This language is not used with any of the other provisions of sections 122—4 through 122—6. If the General Assembly intended to allow amendments at any stage of the proceedings, it could have used similar language, as it did when referring to when petitions could be withdrawn. Exceptions in a statute are to be strictly construed (People v. Lofton, 69 Ill. 2d 67, 71 (1977)), and the expression of certain exceptions in a statute will be construed as an exclusion of all others (State v. Mikusch, 138 Ill. 2d 242, 250 (1990)).
In addition to being a legally incorrect decision, the majority opinion represents bad policy. Section 122—2.1 was enacted to expedite the consideration of post-conviction petitions, whether frivolous or not. Oury, 259 Ill. App. 3d at 667. By judicially legislating an amendment provision into section 122—2.1 and then holding that the amendment restarts the 90-day period, the majority thwarts the legislature’s intent. The majority implies that its interpretation is beneficial to trial court judges, defendants, and prosecutors. 187 Ill. 2d at 451. On the contrary, the majority’s interpretation is beneficial only to those defendants who would seek to further drag out the post-conviction process.
Even accepting arguendo the majority’s implied premise — that amendments are allowed at the first stage — the majority opinion is still legally incorrect and still represents bad policy. There is simply no provision in the Act for the 90-day period to begin anew upon the filing of amendments to the petition. As stated, the intention of the legislature in enacting section 122 — 2.1 was to expedite the consideration of post-conviction petitions. Surely, if the legislature meant to thwart its own intent by allowing defendants to continually renew the 90-day period it would have expressly included such a provision.
The only policy reason given by the majority for its decision is that it would be “unfair” for trial judges if defendants filed amended petitions on the eighty-eighth day, thus giving the judge only two days to consider the petition. I am unwilling to assume that trial court judges are as helpless as the majority makes them out to be. Trial judges have complete discretion to make orders regarding amendments to the petition. 725 ILCS 5/122—5 (West 1996). Thus, the trial judge decides whether to allow amendments and when those amendments can be filed. The trial judge in any given case would be aware of the 90-day deadline and would not have to allow an amendment if he or she did not believe there would be sufficient time to rule on it. Trial judges do not have to allow themselves to be sandbagged at the last minute.
Section 122—2.1 does not provide for the 90-day period to begin anew on the filing of an amended petition for the simple reason that amended petitions are not allowed at the first stage. Thus, the trial judge in this case should not have allowed defendant leave to file an amended petition. Defendant’s amended petition was a nullity, and the 90-day period ran from the date defendant filed his first petition. Because the trial court did not dismiss the petition within that time, the appellate court correctly concluded that the trial court was without authority to dismiss it as frivolous and patently without merit and that the petition should have been docketed for further proceedings.
I would affirm the judgment of the appellate court.