dissenting:
I agree with the majority’s conclusion that, in light of section 122 — 1(d) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 — 1(d) (West 2006)) and this court’s decision in People v. Shellstrom, 216 Ill. 2d 45 (2005), a trial court’s decision not to recharacterize a pro se pleading as a postconviction petition may not be reviewed for error. I also agree that the trial court’s actions herein, appointing counsel to represent defendant, ordering defense counsel to file a Rule 651(c) certificate, and failing to rule in an expeditious manner on the State’s motion to dismiss the clearly labeled section 2 — 1401 petition, gave the appearance that defendant’s pleading would be recharacterized as a postconviction petition. However, I disagree with the majority’s conclusion that the trial court, by these actions, had indeed “recharacterized” defendant’s pleading as a postconviction petition for purposes of further proceedings under the Act. Rather, the court, in its discretion, clearly declined to re-characterize the pleading and its dismissal of defendant’s pro se section 2 — 1401 petition should be affirmed.
This court has long held that a trial court may treat a pro se pleading which alleges a deprivation of constitutional rights cognizable under the Act as a postconviction petition. People ex rel. Palmer v. Twomey, 53 Ill. 2d 479, 484 (1973); Shellstrom, 216 Ill. 2d at 52-53. As we noted in Shellstrom, there are compelling reasons for allowing recharacterization:
“First, recharacterization enables the issues to be properly framed. [Citations.] Second, recharacterization avoids the possible harshness of holding a pro se litigant to the letter of whatever label he happens to affix to his pleading, even when his claims are such that they could more appropriately be dealt with under a different heading. ***
A third reason *** [is that] defendant [is] provided with appellate counsel to assist him in appealing the dismissal [of a postconviction petition].” Shellstrom, 216 Ill. 2d at 51-52.
See also People v. Pearson, 216 Ill. 2d 58 (2005).
However, as the majority recognizes, a trial court is not required to recharacterize a pro se pleading as a post-conviction petition, even if the claims raised are cognizable under the Act, although this court has encouraged tried courts to do so when appropriate. Shellstrom, 216 Ill. 2d at 57 (“[W]e recognize that trial courts need not recharacterize a pro se pleading as a postconviction petition. However, we urge judges to consider recasting pleadings that warrant such treatment”). Here, due to the trial court’s appointment of counsel, seeming acquiescence in defense counsel’s claims that the pleading was a postconviction petition, and failure to immediately dismiss defendant’s section 2—1401 petition, the majority finds that “the pleading had already been ‘recharacterized’ as a postconviction petition and survived summary dismissal.” (Emphasis in original.) 239 Ill. 2d at 329. A careful review of the facts and our case law dictates a different conclusion.
While it is true there was confusion as to the character of defendant’s pleading, mostly due to the fact that three different circuit court judges handled the proceedings, and this confusion led to the appointment of counsel and the ordering of a Rule 651(c) certificate, the record as a whole shows that neither the court nor the State ever agreed to treat the filing as a postconviction petition. Rather, after the initial status hearing in the matter, the State filed a “motion to summarily dismiss the defendant’s petition for relief from judgment,” which argued that defendant failed to allege there was newly discovered evidence or any “errors of fact” which would warrant relief under section 2 — 1401. At the next status hearing, defendant successfully requested time to respond to the State’s motion and to make “substantial renovations on Mr. Stoffel’s post-conviction petition, which may take care of the motion to strike.” Although the State did not object to, nor the court correct, defense counsel’s characterization of the pleading as a postconviction petition, at each appearance thereafter the State sought a response to its motion to dismiss, and the court continued to order defendant to file a response.
When defendant’s response was eventually filed, it merely argued that the State erroneously assumed defendant’s petition fell under section 2 — 1401 but that, as supplemented, it was a postconviction petition. The State then filed a motion to strike defendant’s supplements and response to its motion to dismiss, arguing therein and at the hearing on the motion that defendant’s petition was clearly labeled a section 2 — 1401 petition and that counsel could not supplement “a post-conviction petition that is yet to be filed.” Importantly, the State argued:
“This is not a case where the defendant files some document with the Court where it’s unclear on its face whether it’s a post-conviction petition or it’s a 2 — 1401 petition and where the Court has to look at the substance of the petition and try to make a determination ***. This [document] comes right out and says it’s a petition under 2 — 1401, and that’s what he’s stuck with.”
In responding, defense counsel stated: “Your Honor, it was my original understanding from this when I was appointed that I was to supplement this motion and it was to be treated as a post-conviction petition.” However, counsel then agreed that defendant’s pro se pleading “only goes to the petition for relief from judgment,” but argued:
“If the State desires that the Court examine the pleadings and determine whether or not they should be treated as post-conviction [sic] *** then so be it. And the Court can certainly do that.
If the Court wants us to go back to square one and do that over again then we will, but the easier proceeding would be for this Court to review this matter and then treat it as a post-conviction petition. That’s really what it should have been from the square one.”
Thus, defense counsel conceded that, even though he had operated, since his appointment, under the belief that the pleading was to be treated as a postconviction petition, and had acted accordingly by supplementing defendant’s pro se pleading, the recharacterization of that pleading had not occurred. It is therefore no surprise that, after taking the matter under advisement, the trial court filed a docket entry the next day noting that upon consideration of, inter alia, defendant’s petition for relief from judgment, the State’s motion to dismiss that petition, and the court file, it was granting the State’s motion to dismiss the pleading, as it could not be “magically transformed” into a postconviction petition by defense counsel’s mere filing of a supplemental pleading. I agree.
In People v. Swamynathan, 236 Ill. 2d 103, 113 (2010), this court recently held that where Shellstrom explicitly stated that a pleading does not become a post-conviction petition until the defendant is given the Shellstrom admonishments, it follows 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.” Indeed, “[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. Shellstrom, 216 Ill. 2d at 57.” (Emphasis added.) Swamynathan, 236 Ill. 2d at 112.
“The court is required to ‘(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.’ Shellstrom, 216 Ill. 2d at 57; Pearson, 216 Ill. 2d at 68. Significantly, if the court fails to give these admonishments, ‘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.’ Shellstrom, 216 Ill. 2d at 57.” (Emphasis added.) Swamynathan, 236 Ill. 2d at 112.
The majority contends that the absence of admonitions does not negate its conclusion that recharacterization occurred, holding that, “where, as here, a defendant’s pro se petition is not summarily dismissed but is instead advanced for further review, and counsel is appointed to represent the defendant, Shellstrom admonitions are unnecessary.” 239 Ill. 2d at 328. However, in so finding, the majority ignores the fact that the function of the Shellstrom admonitions is to protect the rights of pro se defendants by informing them of the consequences of recharacterization. Under the majority’s view, by the time counsel is appointed, the horse is already out of the barn, i.e., the petition has already been recharacterized, so admonishments by counsel would be useless. Shellstrom admonishments apply to pro se defendants whose petitions the court intends to recharacterize, but which first provide those defendants with an opportunity to withdraw or amend their pleadings prior to recharacterization. Thus, appointing counsel after the fact cannot cure the failure to give admonishments prior to recharacterization.
Indeed, here, not only was defendant not admonished by the court when he was a pro se litigant, there is also no evidence to show that, thereafter, appointed counsel fulfilled that duty. Rather, defense counsel admitted that he had always treated the pleading as a postconviction petition, and therefore had no reason to explain to defendant that his clearly entitled petition for relief from judgment under section 2 — 1401 would now be subject to the Act’s restrictions on successive postconviction petitions. Thus, without evidence that defendant received the protection of the Shellstrom admonishments from either the circuit court or appointed counsel, the majority concludes that recharacterization occurred. I believe that where the record does not show that defendant received the benefit of the Shellstrom admonishments, and both the circuit court and the parties agreed that the unsupplemented pleading was a section 2 — 1401 petition, no recharacterization occurred. Further, to find that recharacterization occurred under these circumstances, as the majority does, is to deprive defendant of making a choice, the consequences of which could prejudice him as to the filing of any future postconviction petition.
Additionally, because the provisions of the Act cannot apply to pleadings that are not postconviction petitions until those pleadings are properly recharacterized as such (Swamynathan, 236 Ill. 2d at 115), the majority also mistakenly concludes that the trial court erred in denying defense counsel’s motions to supplement. 239 Ill. 2d at 329.
Because the Shellstrom admonitions were never given, recharacterization did not occur, and there is no postconviction petition to supplement or amend. Therefore, this court is not free to treat the pleading as a post-conviction petition for purposes of its disposition, and its denial on the merits of the sentencing issue raised is not only unnecessary, but gives defendant less protection than is required under Shellstrom.
In Swamynathan, we noted that although the trial court took an inordinate amount of time to complete the Shellstrom admonishments while essentially treating the pleading as a postconviction petition, “the trial court’s handling of the recharacterization process *** cannot be said to have prejudiced defendant in any way.” Swamynathan, 236 Ill. 2d at 115-16. “The fact remains that the trial court is under no obligation to recharacterize a petition that could otherwise be disposed of on procedural grounds.” Swamynathan, 236 Ill. 2d at 116. Thus, the trial court in this case was free to dispose of defendant’s section 2 — 1401 petition without recharacterization, leaving him, subject to time constraints, free to file an original postconviction petition. Yet the majority insists that defendant’s appointment of counsel prior to the dismissal of his pro se petition negates the duty of the trial court to admonish him as required by Shellstrom. What purpose does this serve? I am concerned that the majority’s holding will not only muddy the clear rules of recharacterization set forth in Shellstrom and Swamynathan but, contrary to Swamynathan, will also prejudice future defendants’ rights to be clearly admonished in similar circumstances.
Accordingly, I agree with the majority that a trial court’s decision not to recharacterize a pro se pleading as a postconviction petition may not be reviewed for error. I disagree with the majority’s decision to affirm the appellate court’s judgment as modified and to deny the petition on the merits. Instead, I would reverse the appellate court’s judgment and affirm the circuit court’s dismissal of defendant’s pro se section 2 — 1401 petition, which was never recharacterized as a postconviction petition. For the foregoing reasons, I respectfully dissent.
CHIEF JUSTICE KILBRIDE and JUSTICE CAR-MAN join in this dissent.