specially concurring:
I agree with the majority’s conclusion that petitioner’s postconviction petition was properly dismissed, and therefore I concur in its judgment. I also agree with its conclusion that Apprendi does not apply retroactively. I cannot agree, however, with its decision to resolve that issue in this case because there is no Apprendi claim in petitioner’s postconviction petition. In reaching the merits of the Apprendi issue, the majority has disregarded both the entire Post-Conviction Hearing Act and this court’s binding precedent interpreting the Act. As I will demonstrate below, the majority’s stated justifications for addressing the issue reveal a manifest confusion over the difference between a direct appeal from a judgment of conviction and review of a trial court’s order dismissing a postconviction petition.
The majority opinion should come to an end shortly after the third paragraph. In this paragraph, the majority alerts the reader that, “Because the arguments raised on appeal do not involve the arguments raised in the various petitions, we will not recount them in detail.” 204 Ill. 2d at 429. This, of course, should signal that the end of the opinion is coming soon, but the majority manages to go on for 30 paragraphs after acknowledging that petitioner is raising arguments unrelated to the claims he made in his petitions.
Before getting into the specific requirements of the Act, I would note that even as a matter of plain common sense, we should not be addressing arguments about claims that do not appear in the petition. As this court stated in People v. Coleman, 183 Ill. 2d 366, 388 (1998), “[t]he question raised in an appeal from an order dismissing a post-conviction petition is whether the allegations in the petition, liberally construed and taken as true, are sufficient to invoke relief under the Act.” How can an argument about a claim that does not appear in the petition have any bearing on whether the trial court erred in dismissing that petition? For instance, if the majority had reached the opposite conclusion in this case and determined that Apprendi claims can be raised in postconviction petitions, would the majority have reversed the trial court and said that the trial court erred in dismissing the petition? How could the trial court have made such an error if there is no Apprendi claim in the petition?
A perfect analogy would be in the civil context when a trial court dismisses a complaint. Assume that a plaintiff files a three-count complaint against a defendant, and the trial court dismisses the complaint with prejudice. The plaintiff then appeals, arguing that the trial court erred in dismissing the complaint. However, the plaintiff argues that the trial court erred not because any of the counts in the complaint have merit but because a different count, never filed and presented for the first time on appeal, has merit. No reviewing court would give the time of day to such a preposterous argument, yet that is exactly the position the majority has adopted in the postconviction context.
Turning to the specific requirements of the Act, the majority acknowledges that section 122 — 3 of the Act (725 ILCS 5/122 — 3 (West 2000)) specifically provides that “[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.” The majority immediately treats this provision as merely directory rather than mandatory. Several reasons are then given for why this court is free to ignore section 122 — 3.
The majority asserts that the State has not argued that the claim is waived, and thus the State waived the waiver argument. 204 Ill. 2d at 433. In support, the majority cites this court’s opinion in a direct appeal, People v. Williams, 193 Ill. 2d 306 (2002). As noted earlier, the only question for a reviewing court on review of the dismissal of a postconviction petition is whether the allegations in the petition, liberally construed and taken as true, are sufficient to invoke relief under the Act. Coleman, 183 Ill. 2d at 388.3 Yet the majority would have us believe that unless the State points out that a claim is not included in the petition, this court cannot look at the petition but instead must address the petitioner’s argument raised for the first time on appeal. The absurdity of the majority’s argument can be demonstrated by the following hypothetical. A defendant files a postconviction petition raising three issues. The trial court dismisses it as frivolous and patently without merit. The defendant appeals, but does not raise any of the issues in his petition. Instead he raises seven new issues. The State then either neglects to file a brief or files its brief too late for consideration by the reviewing court. According to the majority, the reviewing court would then have to consider all seven of these arguments and could not rely on the defendant’s failure to include them in his petition. Such a position is obviously untenable.
The majority’s position on the State having “waived waiver” overlooks the difference between a direct appeal from a judgment of conviction and an appeal from the dismissal of a postconviction petition. In a direct appeal of a judgment of conviction and sentence, everything that occurred at trial is potentially before the appellate court. The appellate court has appellate jurisdiction over the entire case and can potentially address any errors that occurred. However, it may be that certain errors were not properly preserved and thus are considered waived. Because waiver is a limitation on the parties and not on the reviewing court, the court may sometimes choose to ignore waiver and reach an issue not properly preserved.
In a postconviction proceeding, the entire case is the petition. Any issues must be raised by a petition filed in the circuit court. 725 ILCS 5/122 — 1(b) (West 2000). On appeal from the dismissal of the petition, the court of review obtains appellate jurisdiction only over the judgment of dismissal. See Coleman, 183 Ill. 2d at 388; 725 ILCS 5/122 — 7 (West 2000) (“Any final judgment entered upon such petition shall be reviewed in a manner pursuant to the rules of the Supreme Court” (emphasis added)); People v. Hartman, 408 Ill. 133, 138 (1951) (“Where the statute refers to ‘such petition’ it refers to one in which specific actions, constituting denial of constitutional right, are alleged to have resulted in the petitioner’s imprisonment. The act does not cover any other type of review”). Thus, unlike in a direct appeal, the only matters before the appellate court are those specifically identified in a petition filed in the circuit court. The problem with issues left out of the petition is not they were not properly preserved; they are not even part of the case.
Essentially what the majority argues is that it can assert original jurisdiction over postconviction claims. It would have to do so to consider a claim not included in the petition because its appellate jurisdiction is limited to reviewing the trial court’s dismissal of the petition. The appellate court may exercise original jurisdiction only “when necessary to the complete determination of any case on review.” Ill. Const. 1970, art. VI, § 6. The supreme court may exercise original jurisdiction for the same reason, or in other specified cases, such as revenue, mandamus, prohibition or habeas corpus. Ill. Const. 1970, art. VI, § 4. Original jurisdiction is not given to the supreme or appellate courts in postconviction cases, and reaching a postconviction claim filed for the first time in the appellate court is not necessary for the complete determination of the case on review. All that is necessary to determine completely the case on review is to determine if the allegations of the petition, liberally construed and taken as true, are sufficient to invoke relief under the Act. Coleman, 183 Ill. 2d at 388. Thus, a reviewing court would act outside its constitutional authority in exercising original jurisdiction over a postconviction claim. That is why it makes no sense to talk about the State having “waived waiver” in the context of claims omitted from postconviction claims. The reviewing court’s appellate jurisdiction is limited to the contents of the petition, regardless of what the State argues in its brief and regardless of whether the State even files a brief. The parties cannot confer jurisdiction by consent or acquiescence. Droste v. Kerner, 34 Ill. 2d 495, 498 (1966).
In People v. Day, 152 Ill. App. 3d 416 (1987), the appellate court recognized the concept that eludes today’s majority. In Day, the trial court improperly allowed the State to file its motion to dismiss at the first stage of a postconviction proceeding. In dismissing the petition, the trial court relied on the State’s motion to dismiss and did not enter either a verbal or written order specifying findings of fact and conclusions of law. On appeal, the defendant argued that the appellate court could make the original determination of whether the petition was frivolous or patently without merit. The appellate court agreed with the State that it did not have the jurisdiction do to so:
“We further observe that we cannot, as defendant argues, make a determination as to whether or not his petition is frivolous or patently without merit. We agree with the State that we do not have jurisdiction to do so. Jurisdiction to determine whether Day’s petition is frivolous or patently without merit is vested in ‘the court in which the conviction took place.’ (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1.) Day’s conviction took place in the circuit court of Cook County, not in this court.” Day, 152 Ill. App. 3d at 421. Similarly, here, defendant’s conviction took place in the circuit court of Cook County, not in the appellate court and not in the supreme court. Thus, pursuant to the Act, defendant can raise a postconviction claim solely by means of a verified petition filed in the circuit court of Cook County. 725 ILCS 5/122 — 1(b) (West 2000). The Act does not provide for postconviction claims to be raised by means of a brief filed in a reviewing court. Thus, we simply do not have jurisdiction over defendant’s Apprendi claim, and the majority commits a serious error in reaching it.
The majority further asserts that it can excuse petitioner’s compliance with section 122 — 3 because “waiver is an admonition to the parties, not a limitation upon the powers of this court.” 204 Ill. 2d at 432, citing Flynn v. Ryan, 199 Ill. 2d 430, 438 n.l (2002). Not surprisingly, the majority does not cite a case construing section 122 — 3 of the Post-Conviction Hearing Act for this proposition. Rather, the majority cites Flynn v. Ryan, 199 Ill. 2d 430 (2002), a direct appeal from a trial court ruling that the Gift Ban Act was unconstitutional. Also included is a block quote from a direct appeal, People v. Burson, 11 Ill. 2d 360 (1957). While it may be proper for this court to say that waiver is a limitation on the parties and not on the court when discussing our Supreme Court Rule 341(e)(7) (188 Ill. 2d R. 341(e)(7)), which provides that issues are waived when not included in the appellant’s brief, or the rule we stated in People v. Enoch, 122 Ill. 2d 176, 186 (1988), that both an objection and a written posttrial motion are necessary to preserve an error for review, it is quite another thing to say that we can ignore waiver in a situation in which the waiver is mandated by the legislature.
The majority provides no support for its assertion that the legislature intended its pronouncement in section 122 — 3 to be merely directory. A postconviction
proceeding, unlike a criminal trial and appeal, is entirely a matter of statute. The legislature prescribes the rules that must be followed, and this court may not ignore them. The best statement of this principle can be found in Justice Freeman’s special concurrence in People v. Wright, 189 Ill. 2d 1, 23-24 (1999), overruled in part on other grounds, People v. Boclair, 202 Ill. 2d 89 (2002). Discussing the mandatory requirements of the Post-Conviction Hearing Act, Justice Freeman wrote:
“This court has consistently recognized that the legislature, having conferred a right of action, ‘may determine who shall sue and the conditions under which the suit may be brought.’ ” (Emphasis added.) Wilson v. Tromly, 404 Ill. 307, 310 (1949). We have also consistently adhered to the notion that the General Assembly may attach conditions to the relief it creates. See Wilson, 404 Ill. at 311. That being the case, it is the party seeking the statutorily created relief who must ‘ “bring himself within the prescribed requirements necessary to confer the right of action.” ’ ” 189 Ill. 2d at 23-24 (Freeman, C.J., specially concurring, joined by McMorrow, J.), quoting Wilson, 404 Ill. at 311, quoting Hartray v. Chicago Rys. Co., 290 Ill. 85, 87 (1919).
Here, by raising his Apprendi claim for the first time on appeal from the dismissal of his postconviction petition, petitioner did not “bring himself within the prescribed requirements necessary to confer the right of action,” and this court cannot consider the claim. This court is not free to ignore the legislature’s pronouncement in section 122 — 3.
Further, what the majority apparently does not realize is that it is excusing compliance not only with section 122 — 3, but also with the entire Post-Conviction Hearing Act. As noted above, the Post-Conviction Hearing Act is entirely a creature of statute, and the legislature has mandated specific requirements that a petitioner must meet to assert a claim under the Act. Any allegation of a substantial denial of constitutional rights must be included in the postconviction petition, and the petition must be verified. 725 ILCS 5/122 — 1(b) (West 2000). The Act sets out specific time limits for filing the petition. 725 ILCS 5/122 — 1(c) (West 2000). The petition must contain certain information required by the Act (725 ILCS 5/122 — 2 (West 2000)) and must have attached thereto “affidavits, records, or other evidence supporting its allegations” or shall state why they are not attached (725 ILCS 5/122 — 2 (West 2000)). “Any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.” 725 ILCS 5/122 — 3 (West 2000).
After the petition is filed, the trial court examines it to determine if it is frivolous or is patently without merit. 725 ILCS 5/122 — 2.1(a)(2) (West 2000). At this stage, counsel may be appointed for an indigent defendant if it is a capital case. 725 ILCS 5/122 — 2.1(a)(1) (West 2000). If the trial court determines that the petition is frivolous or patently without merit, it dismisses the petition. 725 ILCS 5/122 — 2.1(a)(2) (West 2000). If not, the trial court dockets the petition for further consideration pursuant to sections 122 — 4 through 122 — 6. 725 ILCS 5/122— 2.1(b) (West 2000).
At the second stage, the trial court may appoint counsel for an indigent defendant. 725 ILCS 5/122 — 4 (West 2000). Counsel may seek leave to file amendments to the petition. 725 ILCS 5/122 — 5 (West 2000). Also, the State has 30 days to either answer the petition or move to dismiss. 725 ILCS 5/122 — 5 (West 2000). If it files a motion to dismiss which is denied, it then has 20 days to answer the petition. 725 ILCS 5/122 — 5 (West 2000). The court may “receive proof by affidavits, depositions, oral testimony, or other evidence” and, in its discretion, may require the petitioner to be brought before the court for a hearing. 725 ILCS 5/122 — 6 (West 2000). Finally, the court enters a final judgment on the petition, and any final judgment may be reviewed in the manner provided for in the supreme court rules. 725 ILCS 5/122 — 7 (West 2000).
Petitioner did not follow any of the above procedures with respect to his Apprendi claim. Thus, the majority is not only excusing compliance with section 122 — 3, it is excusing compliance with the entire Post-Conviction Hearing Act. Defendant’s Apprendi claim was not in a petition (violating section 122 — 1(b)), was not verified by affidavit (violating section 122 — 1(b)), was not served upon the State’s Attorney (violating section 122 — 1(b)), was not timely (violating section 122 — 1(c)), did not have attached thereto affidavits or other evidence supporting its claims (violating section 122 — 2), and was not filed in the trial court (violating section 122 — 1(b)). Further, the trial court did not have an opportunity to review it (violating section 122 — 2.1), and the State’s Attorney did not have a chance to move to dismiss it (violating section 122 — 5). The majority confines its analysis solely to section 122 — 3 and refuses to discuss how compliance with the Act’s other sections may be excused. There is no provision in the Act that says that the supreme court can decide that the entire Act is merely optional. See 725 ILCS 5/122 — 1 et seq. (West 2000). I cannot emphasize enough that this issue does not merely involve relaxing waiver. It involves whether this court can excuse compliance with all of the Act’s substantive and procedural requirements.
According to the majority, a claim under the Post-Conviction Hearing Act can be asserted either by following all of the procedures set forth in the Act or by simply raising the claim for the first time on appeal. No support is provided for this novel proposition, and it would seem to directly contradict this court’s opinion in People v. Collins, 202 Ill. 2d 59 (2002). In that case, we held that a petitioner’s verification affidavit (725 ILCS 5/122 — 1(b) (West 2000)) could not also serve as the affidavits or other evidence supporting the petition’s allegations required by section 122 — 2; We explained that these provisions are distinct requirements, and that a petitioner must comply with both of these to properly assert a claim under the Act. Collins, 202 Ill. 2d at 66-67. A contrary reading would render section 122 — 2 meaningless surplusage. Collins, 202 Ill. 2d at 67. Contrast that with today’s case, in which the majority allows a petitioner to ignore the entire Act. The majority’s claim renders the entire Post-Conviction Hearing Act mere surplusage if a petitioner can ignore all of its procedures and simply assert a post-conviction claim for the first time in an appellate brief. If this is true, the petitioner in Collins would have been better off waiting until appeal to assert the claim he truly wanted to raise.
Curiously, the majority refiises to follow People v. McNeal, 194 111. 2d 135 (2000), in which we directly confronted the same situation as in this case. The petitioner wished to assert a claim based on a decision that was filed after his petition was already in the appellate stage. We summarily rejected this attempt:
“The defendant cannot raise this question for the first time on review. Section 122 — 3 of the Post-Conviction Hearing Act provides, ‘Any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.’ 725 ILCS 5/122 — 3 (West 1996). Accordingly, the issue has been waived. People v. Johnson, 154 Ill. 2d 227, 233 (1993). We need not consider here whether this court’s determination in Woods would support the filing of a successive petition by the defendant. Cf. People v. Caballero, 179 Ill. 2d 205 (1997) (defendant allowed to pursue second post-conviction petition to raise sentence-disparity issue after codefendant was sentenced). It is well established, however, that the defendant may not add an issue to the case while the matter is on review.” McNeal, 194 Ill. 2d at 147.
This statement in McNeal reflected the approach this court has consistently taken; indeed, the only approach the statute permits this court to take. See, e.g., People v. Gaultney, 174 Ill. 2d 410, 423 (1996); People v. Orange, 168 Ill. 2d 138, 154-55 (1995); People v. Guest, 166 Ill. 2d 381, 405 (1995); People v. Brisbon, 164 Ill. 2d 236, 258 (1995) (all citing section 122 — 3 and refusing to consider issues not raised in the postconviction petition).
The majority’s approach turns McNeal on its head. In McNeal, we held that if a petitioner neglects to include an issue in his petition he cannot raise it on appeal from the dismissal of the petition but he may raise the issue in a subsequent petition. However, he can raise the issue in a successive petition only if he can satisfy the cause and prejudice test. People v. Orange, 195 Ill. 2d 437, 449 (2001). Today, the majority holds that a petitioner is actually better off if he raises the claim for the first time on appeal. A petitioner has to meet the cause and prejudice test to raise the waived issue in a subsequent petition, but has to show nothing to raise the claim for the first time on appeal. Once the petitioner fails to include the issue in an original or amended petition it is waived pursuant to section 122 — 3. Why does the majority place the petitioner who ignores what we said in McNeal in a better position than the petitioner who does exactly what we told him to do in McNeal? The majority must address why a petitioner who asserts a postconviction claim for the first time on appeal does not have to meet any standard before doing so.4
Although not stated in the majority opinion, it can be assumed that the reason the majority is ignoring the entire Post-Conviction Hearing Act and acting outside its jurisdiction is that Apprendi retroactivity is an important issue and the majority wishes to resolve it. In addition to this court’s lack of jurisdiction over the claim, two problems with such an approach are immediately apparent. First, the issue is not in petitioner’s postconviction petition, and we are reviewing whether the trial court erred in dismissing the petition. “The question raised in an appeal from an order dismissing a post-conviction petition is whether the allegations in the petition, liberally construed and taken as true, are sufficient to invoke relief under the Act.” Coleman, 183 Ill. 2d at 388. Regardless of the issue’s importance, we simply cannot consider it on appeal from the dismissal of a petition if it is not in the petition. Second, the majority is being disingenuous if it is suggesting that the importance of the issue mandates that we resolve it in this particular case. There is currently another case pending on this court’s advisement docket, People v. Lee, Nos. 93221, 93363 cons., that also involves Apprendi retroactivity. In Lee, the issue was raised in the postconviction petition. Additionally, this court is currently holding 177 petitions for leave to appeal that raise the issue of Apprendi retroactivity.5 Thus, we do not have to resolve Apprendi retroactivity in this particular case.
Recently, the Appellate Court, Fourth District, was asked to consider a claim on appeal from the dismissal of a postconviction petition, but the claim was not included in the petition. The appellate court explained that it simply could not consider such a claim:
“Defendant’s contentions of error, even if they were of constitutional magnitude, are forfeited. As we have previously stated, ‘[defendant does not cite, nor are we aware of, any case in which the [Post-Conviction Hearing Act] has been construed as permitting a defendant to raise on appeal from the dismissal of a postconviction petition an issue he never raised in that petition. This court will not be the first to so hold.’ ” People v. Reed, 335 Ill. App. 3d 1038, 1040 (2003), quoting People v. Griffin, 321 Ill. App. 3d 425, 428 (2001).
Regrettably, this court will be the first to so hold.
In sum, I would hold that the trial court properly dismissed petitioner’s postconviction petition. I would not reach the issue of whether Apprendi applies retroactively because petitioner did not include his Apprendi argument in his petition. I simply cannot fathom why deciding Apprendi retroactivity in this particular case, when we have been petitioned to consider the argument in so many cases in which the claim has been presented properly, is worth ignoring common sense, the entire Post-Conviction Hearing Act, years of established precedent by this court, and firmly established rules of appellate procedure. I therefore cannot join the majority opinion.
The majority has implicitly overruled this portion of Coleman. Today, the majority holds that the question on appeal from the dismissal of a postconviction petition is whether the allegations in the petitioner’s appellate brief, liberally construed and taken as true, are sufficient to invoke relief under the Act.
I do not mean by this argument to endorse the cause and prejudice test for reaching claims asserted for the first time on appeal from the dismissal of a postconviction petition. Such a test would be completely unnecessary because we already have a mechanism for petitioners to assert waived claims when fundamental fairness so requires — the successive petition. More importantly, this cannot be a test to reach claims left out of the petition because our review is limited to the four corners of the petition and we do not have original jurisdiction over postconviction claims. I simply raise the issue to point out that the majority is putting the petitioner who refuses to follow proper procedure in a better position than one who does exactly what he is supposed to do.
This does not include additional petitions for leave to appeal held at the March 2003 term.