specially concurring:
I agree with the majority that the trial court erred in summarily dismissing the defendant’s post-conviction petition. I write separately to discuss the confusion surrounding so-called first-stage dismissals under section 122 — 2.1(a)(2) of the Act. Understandably, there is great reluctance to accept dismissal of a petition filed by an indigent defendant without the benefit of counsel. This reluctance, and the vague language contained in section 122 — 2.1, have led to the use of the terms “gist” and “low threshold” in an effort to define the first-stage pleading standard. I write separately to discuss the problems inadvertently created by these terms.
In 1983, the General Assembly amended the Act to include section 122 — 2.1, which directed the trial court to conduct a threshold evaluation of post-conviction petitions and to dismiss those which were “frivolous” or “patently without merit.” Ill. Rev. Stat. 1985, ch. 38, par. 122 — 2.1(a). The Act currently provides: “If the petitioner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision.” 725 ILCS 5/122 — 2.1(a)(2) (West 1998).
The General Assembly, however, never defined “frivolous” or “patently without merit.” Instead, our appellate court provided the initial gloss on these terms. In People v. Baugh, 132 Ill. App. 3d 713 (1985), the defendant, whose pro se post-conviction petition was summarily dismissed, argued that section 122 — 2.1 violated due process because it denied counsel to indigent defendants. The court noted that the United States Supreme Court approved federal legislation requiring indigent habeas corpus petitioners to prepare petitions without the benefit of counsel. Baugh, 132 Ill. App. 3d at 717; see Rodriguez v. United States, 395 U.S. 327, 330, 23 L. Ed. 2d 340, 344, 89 S. Ct. 1715, 1717 (1969); see also Johnson v. Avery, 393 U.S. 483, 488, 21 L. Ed. 2d 718, 722, 89 S. Ct. 747, 750 (1969) (“It has not been held that there is any general obligation of the courts, state or federal, to appoint counsel for prisoners who indicate, without more, that they wish to seek post-conviction relief”). The court then observed:
“While it is obvious that counsel should be better able to more artfully draft a petition than an indigent petitioner unschooled in legal drafting, it is certainly not clear that an indigent petitioner could not present the gist of his claim so that the trial court could make an initial determination as to whether *** the claim is frivolous. An indigent petitioner is not deprived of post-conviction relief. We do not find a denial of due process by the operation of section 122 — 2.1.” Baugh, 132 Ill. App. 3d at 717.
See also People v. Dredge, 148 Ill. App. 3d 911, 913 (1986) (“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”).
Three years later, in People v. Porter, 122 Ill. 2d 64 (1988), this court rejected a similar due process argument, noting that an indigent defendant is entitled to appointed counsel after the trial court determines that the claims are not frivolous or patently without merit. Porter, 122 Ill. 2d at 74. We held that, “Under the Post-Conviction Hearing Act, the [defendant] must set forth the specific manner in which his rights were violated. [Citation.] The [defendant] does not have to construct legal arguments or cite to legal authority. Once the [defendant] sets out allegations demonstrating a meritorious constitutional claim, he is entitled to have counsel represent him ***.” Porter, 122 Ill. 2d at 74. We then quoted Baugh with approval, recognizing that an indigent defendant may be able to present the “gist” of a constitutional claim. Porter, 122 Ill. 2d at 74.
In the wake of our opinion in Porter, however, our appellate court continued to grapple with the sufficiency of pleadings required to survive the first stage of a post-conviction proceeding, and with the meaning of “gist.” Compare People v. Sanders, 209 Ill. App. 3d 366 (1991) (holding that in the first stage of the proceedings a petitioner must set forth facts which show the denial of a constitutional right), with People v. Von Perbandt, 221 Ill. App. 3d 951 (1991) (holding that limited detail is required to survive the first stage of the proceedings). In People v. Lemons, 242 Ill. App. 3d 941, 946 (1993), the appellate court attempted to clarify the meaning of “gist”:
“A ‘gist of a meritorious claim’ is not a bare allegation of a deprivation of a constitutional right. Although a pro se defendant seeking post-conviction relief would not be expected to construct legal arguments, cite legal authority, or draft her petition as artfully as would counsel, the pro se defendant must still plead sufficient facts from which the trial court could find a valid claim of deprivation of a constitutional right.” (Emphasis in original.)
Thereafter, other appellate panels relied upon Lemons for the standard in determining whether to dismiss a petition during the first stage of the proceedings. See, e.g., People v. Prier, 245 Ill. App. 3d 1037, 1040 (1993) (“ ‘[although a pro se [litigant] *** would not be expected to construct legal arguments, cite legal authority, or draft her petition as artfully as would counsel, the pro se defendant must still plead sufficient facts from which the trial court could find a valid claim’ ” (emphasis in original)), quoting Lemons, 242 Ill. App. 3d at 946.
In People v. Gaultney, 174 Ill. 2d 410, 418 (1996), we had a chance to clarify Porter and the first-stage pleading standard. An extended quotation from Gaultney is necessary to show what we said, and what we did not say:
“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. People v. Porter, 122 Ill. 2d 64, 74 (1988). 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. Porter, 122 Ill. 2d at 74. 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.” Gaultney, 174 Ill. 2d at 418.
In the first instance, I note that the facts in Gaultney presented a peculiar hybrid of the first and second stages; the trial court had dismissed the petition as frivolous, but only after the State had filed a motion to dismiss. At issue in Gaultney was whether the State’s motion to dismiss tainted the trial court’s first-stage review of the petition. We did not directly address the level of pleadings required to survive the first stage.
More importantly, Gaultney did not redefine the first-stage pleading requirement — it did not mention any dispute regarding the pleading threshold for first-stage dismissals; it did not correct, modify, or clarify this threshold; and it did not set a new standard. Gaultney simply followed the course we set in Porter. I believe that Gaultney is consistent with Lemons. Although Gaultney does not directly refer to the “sufficient facts” pleading requirement stated in Lemons, it does state that a petition must be supported by some degree of factual evidence. Both opinions discuss the necessity to present factual evidence in order to state the “gist” of a constitutional claim. The consistent tenor of post-Gaultney appellate court cases supports this reading. See People v. Truly, 318 Ill. App. 3d 217, 222 (2000); People v. Patton, 315 Ill. App. 3d 968, 972 (2000) (citing Lemons); People v. Donley, 314 Ill. App. 3d 671, 673-74 (2000) (quoting Lemons); People v. Hill, 308 Ill. App. 3d 691, 698-99 (1999) (citing Gaultney, Porter, and Lemons); People v. Douglas, 296 Ill. App. 3d 192, 197 (1998) (quoting Lemons); People v. Davison, 292 Ill. App. 3d 981, 985 (1997) (citing Gaultney and Lemons); People v. McClain, 292 Ill. App. 3d 185, 190 (1997) (reconciling Gaultney and Lemons), overruled on other grounds, People v. Woods, 193 Ill. 2d 483 (2000); People v. Anderson, 287 Ill. App. 3d 1023, 1031 (1997) (citing Gaultney and Lemons).
The present case illustrates the confusion that exists surrounding the meaning of the term “gist.” In this court’s original opinion, before we granted the defendant’s petition for rehearing, the majority concluded that in order to allege ineffective assistance of counsel on the basis that an attorney failed to preserve appeal rights, a defendant must show the “grounds he or she would have had to withdraw his or her plea of guilty had the proper motion” been filed by counsel. The opinion provided, “[w]e refuse to create a rule which would require defense counsel to invent grounds for withdrawal of a defendant’s guilty plea when defendant fails to provide counsel with an articulable basis for doing so and he offers none in his post-conviction petition.” The allegations contained in the petition — the defendant’s order, “File an appeal,” and the attorney’s response, “On what grounds” — did not state the “gist” of a constitutional claim.
The current opinion, which I join, reaches the opposite conclusion from the same set of facts. We now hold that the allegation of a mere request to file an appeal, and an attorney’s failure to perfect that appeal, is sufficient to state the “gist” of a constitutional claim. I agree with this conclusion because the facts, as alleged in the defendant’s petition, show the real possibility of a valid constitutional claim in two ways. First, the exchange between the defendant and his attorney, in which the attorney asked the defendant “On what grounds” he sought to appeal, leads me to believe that further conversation occurred. Once the attorney asked, “On what grounds,” it is reasonable to conclude that the defendant provided a response. This entire exchange warranted further inquiry by the trial court. Second, if the defendant did not respond to counsel’s inquiry, and counsel failed to do or say more, her lack of a response warranted further inquiry. The defendant’s attorney was required to advise the defendant: an attorney may not relieve herself of the obligation to represent a defendant by forcing the defendant to provide a legal theory or basis for the claim.
Notwithstanding my agreement with the majority’s conclusion, I find that this case shows the inherent problems caused by the vague language contained in section 122 — 2.1. Certainly, judicial economy is not accomplished in cases such as this, where “gist” is interpreted in two different ways. We should be vigilant to avoid catchwords like “gist” which shortcut reliance on the relevant statutory language, though I note that we have previously employed the term “gist” to include the elements of a crime. See People v. Steenbergen, 31 Ill. 2d 615, 619 (1964) (“In a prosecution for robbery, the gist of the action is that the accused forcibly took property that was in the care, custody, or control of another person”).
Instead, we should rely first on the language used within the Act. Section 122 — 2.1(a)(2) addresses petitions which are “frivolous” or “patently without merit.” “Frivolous” means “of little weight or importance: having no basis in law or fact.” Webster’s Third New International Dictionary 913 (1993); Black’s Law Dictionary 677 (7th ed. 1999); accord Anders v. California, 386 U.S. 738, 744, 18 L. Ed. 2d 493, 498, 87 S. Ct. 1396, 1400 (1967) (legal points “arguable on their merits” are not frivolous). “Patently” means “clearly, obviously, plainly.” Webster’s Third New International Dictionary 1654 (1993); Black’s Law Dictionary 1147 (7th ed. 1999). “Merit” means “legal significance, standing, or importance.” Webster’s Third New International Dictionary 1414 (1993); Black’s Law Dictionary 1003 (7th ed. 1999). Consequently, the trial court should dismiss petitions having no basis in law or fact or petitions which clearly, obviously, and plainly lack legal significance.
In my view, this standard does not require the defendant to set forth the claim “in its entirety” (197 Ill. 2d at 244), but it does require the defendant to plead sufficient factual allegations to support a valid claim of deprivation of a constitutional right. See Gaultney, 174 Ill. 2d at 418 (“The Act provides that the petition must be supported by ‘affidavits, records, or other evidence supporting its allegations’ ”), quoting 725 ILCS 5/122 — 2 (West 1992); Porter, 122 Ill. 2d at 74 (“Under the Post-Conviction Hearing Act, the petitioner must set forth the specific manner in which his rights were violated”); see also People v. Coleman, 183 Ill. 2d 366, 380 (1998) (“at the dismissal stage of a post-conviction proceeding, whether under section 122 — 2.1 or under section 122 — 5, the circuit court is concerned merely with determining whether the petition’s allegations sufficiently demonstrate a constitutional infirmity which would necessitate relief under the Act”); cf. People v. Scott, 194 Ill. 2d 268, 279 (2000) (the Act establishes an original and independent remedy by a civil proceeding); People ex rel. Fahner v. Carriage Way West, Inc., 88 Ill. 2d 300, 308 (1981) (“Illinois is a fact-pleading State. *** The complaint is deficient when it fails to allege the facts necessary for the plaintiff to recover”); accord Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997) (“A plaintiff must allege facts sufficient to bring his or her claim within the scope of the cause of action asserted”); Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 408 (1996). This standard allows the trial court to exercise its screening function to dispose of frivolous petitions which raise claims that have no constitutional basis or present constitutional claims clearly rejected by controlling case law.
A consistent theme runs through the legislative debates: section 122 — 2.1 was enacted to allow trial judges to evaluate and dismiss frivolous petitions without incurring the expense of copying transcripts and appointing counsel. That is, the purpose of section 122 — 2.1 was not to prevent the filing of post-conviction petitions, but, according to Senator Sangmeister:
“[A]t least let a judge look at it ***. *** [Tjhat’s what we have judges for, let them look at the petition and if it has merit, fine ***. But at least let the judge look at it and those [petitions] that are obviously frivolous, let them throw them out.
* * *
*** The question that has to he addressed *** is whether or not the petition has any merit. Once the judge looks at it and says, I don’t think this has any merit and tosses it out, that’s the end of it.” 83d Ill. Gen. Assem., Senate Proceedings, May 19, 1983, at 171-72 (statements of Senator Sangmeister).
Accord 83d Ill. Gen. Assem., Senate Proceedings, June 28, 1983, at 218 (statements of Senator Sangmeister).
The Illinois House debates are substantially similar. Representative Johnson, sponsor of the bill which eventually became section 122 — 2.1(a), stated:
“This simply says that on those post-conviction matters after the trial, after the appeal, after everything else, that *** the petition alleging new matter has to be matter that is substantive and not frivolous or obviously without merit.
* * *
*** All this says, under current law, you have to appoint a new lawyer, you have to order a transcript of the proceedings over and over and over again without limit and without any regard to the merits of the petition ... with regard to the merits of the post-conviction petition. All this says is that when those post-conviction petitions are filed after the trial and after the appeal, that the court has to make a threshold determination that they are not frivolous or obviously without merit.” 83d Ill. Gen. Assem., House Proceedings, June 21, 1983, at 92, 95-96 (statements of Representative Johnson).
Accord 83d Ill. Gen. Assem., House Proceedings, November 1, 1983, at 9-10 (statements of Representative Johnson) (“All this does is to provide that the court can dismiss the petition where it determines that the petition is frivolous or patently without merit. *** It still allows petitions with merit to be granted, attorneys to be appointed and the appropriate expenses incurred, but it says if your petition is without merit and frivolous, then the state ought not to log the expense for that”); see 83d Ill. Gen. Assem., House Proceedings, November 1, 1983, at 7 (statements of Representative Cullerton) (“What we’re saying here is that frivolous post-conviction petitions can *** be dismissed easier than they can be now”). Representative Hawkinson stated:
“This is an excellent piece of legislation. It will not create a new bureaucracy in any sense. What happens too often under the present law is a frivolous post-conviction petition will be filed, and when I say frivolous, and what this Bill addresses is a petition will be filed by some jailhouse lawyer that will state one ground. It will state, for example, that I deserve to have my conviction thrown out because I was improperly represented by the public defender. Anyone that looks at the record in the case can easily see that the person was not even represented by a public defender, but was represented by a private attorney. This is the type of thing that the Bill addresses, where a quick look at the record in the case will show that the petition is absolutely untrue. There [is] no need to go to the expense of appointing a court appointed lawyer, of bringing the individual back from the penitentiary. It only addresses that type of petition.” 83d Ill. Gen. Assem., House Proceedings, June 21, 1983, at 89 (statements of Representative Hawkinson). Representative McCracken added:
“It’s important to note that this is patterned after a federal law and is consistent with that practice, 28 U.S.C., 1915. Now, that practice has resulted in curing a backlog problem, which was endemic to the federal post-conviction process. It’s important to note *** that this does not decide the merits of the controversy. All it does is require a threshold finding by the court that there is not a frivolous claim on its face. All it determines is that the claim is or is not frivolous on its face, therefore, it is analogous to a dismissal of pleadings. *** And the question will be, ‘Are the pleadings on their face frivolous? Do they state a claim on their face?’ This is crucially important to a ... to avoid the appointment of private counsel or the public defender to a claim which can be fairly and expeditiously and without undue violation of defendant rights decided by the court in the first instance. You must remember the federal precedent is the leading precedent on the question of post-conviction. We merely bring our law into line with them.” 83d Ill. Gen. Assem., House Proceedings, June 21, 1983, at 93-94 (statements of Representative McCracken).
See 28 U.S.C. § 1915(d) (1994) (“Proceedings in forma pauperis”) (“The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious”); Neitzke v. Williams, 490 U.S. 319, 327, 104 L. Ed. 2d 338, 348, 109 S. Ct. 1827, 1833 (1989) (“[Section 1915(d)] accords judges not only the authority to dismiss a claim based upon an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly baseless”); see also Denton v. Hernandez, 504 U.S. 25, 32-33, 118 L. Ed. 2d 340, 349-50, 112 S. Ct. 1728, 1733-34 (1992) (factual frivolousness). These comments demonstrate that the General Assembly intended section 122 — 2.1 to serve as a modest barrier to meritless petitions. Lowering the defendant’s pleading burden too far contradicts the legislature’s intent.
Today’s opinion raises an additional concern. In order to provide clarity to the Act, this court has divided the Act into a progression of “stages.” Gaultney, 174 Ill. 2d at 418. In order to prevail in the second stage of the proceedings, a defendant must make a “substantial showing of a violation of constitutional rights.” 725 ILCS 5/122 — 4 (West 1998). The underlying purpose of the entire Act, however, is to provide relief from a “substantial denial” of rights under the United States or Illinois Constitutions. 725 ILCS 5/122 — 1 (West 1998).
In the current opinion, the majority states:
“At the outset of its opinion, the appellate court correctly indicated that the issue presented in this case is whether defendant’s petition is frivolous or patently without merit. [Citation.] At the conclusion of its opinion, however, the appellate court stated: ‘We affirm the trial court’s dismissal of defendant’s postconviction petition. Under the Post-Conviction Hearing Act, defendant has the burden of showing a substantial violation of his constitutional rights occurred in the proceedings that resulted in his conviction. Defendant’s petition failed to state a claim for ineffective assistance of counsel ***. [Citation.]’
These latter statements are inappropriate, given the procedural posture of this case. The relevant question in the case at bar is not whether defendant’s petition makes a substantial showing of a constitutional violation; that is a second stage inquiry.” (Emphases added.) 197 Ill. 2d at 246.
The majority criticizes the appellate court’s incidental use of the word “substantial,” but misapprehends the appellate court’s opinion. The appellate court, in referring to a “substantial violation” simply sought to focus attention on the central purpose of the Act — to provide a procedural mechanism through which a defendant can assert “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.” 725 ILCS 5/122 — 1 (West 1998); see Coleman, 183 Ill. 2d at 378-79. The appellate court did not, as the majority charges, wrongfully impose a higher “substantial showing” burden. At the outset, the appellate court recognized that the defendant need only “assert the gist of a constitutional claim.” 305 Ill. App. 3d at 855. The appellate court’s statement was not inappropriate, but rather “general terminology that is common in post-conviction proceedings.” Gaultney, 174 Ill. 2d at 422.
The conclusions reached in our own cases show that reasonable persons have difficulty determining whether the defendant’s allegations have met the murky frivolousness standard. These cases depend more on fact variances and less on cognizable legal standards, and the legal standards we have formulated inadvertently aggravate this confusion. In light of the continuing struggle of Illinois courts to bring clarity and certainty to the Act’s pleading requirements for first-stage petitions, I believe that the trial bench and bar should approach first-stage proceedings with caution.
Where doubt exists regarding dismissal at the first stage, the trial court should not hesitate to allow the claim to proceed to the second stage, where counsel may amend the petition and craft a more proper pleading for the court’s review. If the petition is dismissed at the second stage of the proceedings, a reviewing court is presented with more adequately pleaded facts. Conversely, if the defendant is granted an evidentiary hearing, the defendant will obtain that which by law is his right. At present, this solution serves both the ends of justice and judicial economy.