Nos. 2--04--0750 & 2--04--0751 cons. filed: 6/23/06

______________________________________________________________________

________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

______________________________________________________________________

________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 98--CF--1033 ) JAMES P. QUIGLEY, ) Honorable ) Victoria A. Rossetti, Defendant-Appellant. ) Judge, Presiding.

_________________________________________________________________________

_____ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 98--CF--1178 ) JAMES P. QUIGLEY, ) Honorable ) Victoria A. Rossetti, Defendant-Appellant. ) Judge, Presiding.

_________________________________________________________________________

_____ PRESIDING JUSTICE GROMETER de livered the opinion of the court: Defendant, James P. Quigley, appeals the tr ial court's summary dismissal of his petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2004)). He argues that we must reverse and remand for further proc eedings under the ActNos. 2--04--0750 & 2--04--0751 cons.

- 2 - because the trial court required his petition to meet a standar d higher than that necessary to survive summary dismissal. Assuming that the trial court applied the wrong standard, we determine that we may apply the proper standard in the first instance. Because defendant concedes that his petition does not satisfy that standard, we affirm t he summary dismissal. Under the Act, a postconviction proceeding t hat does not involve the death penalty consists of three stages. At the first stage, the defendant file s a petition and the trial court has 90 days in which it may review the petiti on without the input of any party and summarily dismiss it if it is frivolous or patently without merit. 725 ILCS 5/122--2.1(a)(2) (West 2004); People v. Jones , 211 Ill. 2d 140, 144 (2004). To surviv e summary dismissal, the petition must present only the gist of a constitutional claim. Jones , 211 Ill. 2d at 144. If the petition advances to the second stage, the defendant may be appointed counsel and may amend his petition. The State may then move to dismiss it. 725 ILCS 5/122--4, 122--5 (West 2004); People v. Gaultney , 174 Ill. 2d 410, 418 (1996) . To survive dismissal at the second stage, the petition must make a substantial showing of a constitutional violation. People v. Edwards , 197 Ill. 2d 239, 246 (2001). If the petition advances to t he third stage, the trial court conducts an evidentiary hearing. 725 ILCS 5/122--6 (West 2004); Edwards , 197 Ill. 2d at 246. Here, defendant filed his petit ion on April 26, 2004. T he trial court summarily dismissed the petition within 90 days (on June 15, 2004), without the input of any party. However, although the court det ermined that the petition was "without merit," the court added that the petition "failed to make a substantial showing that [defendant's] Constitutional rights were violated." As noted, a substantial showing of a constitutional violation is required to survive dismissal at the second stage; to surv ive summary dismissal,Nos. 2--04--0750 & 2--04--0751 cons.

- 3 - a petition must present only the gi st of a constitutional claim. Thus, the court' s reference to the substantial-showing standar d was inappropriate. Edwards , 197 Ill. 2d at 246. The State notes that, in Gaultney , the supreme court affirmed a summary dismissal that included the trial court's finding " 'that [the] Defendant's Petition fails to present a substantial showing of [a] viol ation of [the] Defendant's consti tutional rights.' " Gaultney , 174 Ill. 2d at 416. The supreme court st ated that such language "involves general terminology that is common in post-convicti on proceedings" and added t hat the trial court "specifically found that the pet ition was 'frivolous and patently without merit,' which is the proper statutory standard for [su mmary] dismissal." Gaultney , 174 Ill. 2d at 422. We note that the supreme court made t hese comments in determining onl y that the trial court had not relied on the input of the State. However, the supr eme court certainly implied that, despite the trial court's inappropriate refe rence to the subst antial-showing standard (Edwards , 197 Ill. 2d at 246), its additional determinat ion that the petitio n was frivolous and patently without merit established that the court applied the proper standard. Thus, in this case, as the trial court sim ilarly found that defendant's petit ion was "without merit," we acknowledge the possibility that it applied the proper standard, despite its similarly inappropriate reference to the substantial-showing standard. Ultimately, however, whether the trial court applied the proper standard is immaterial. As the trial c ourt summarily dismissed the pet ition within 90 days and without the input of any party, the dismissal was procedurally proper. In People v. Cleveland , 342 Ill. App. 3d 912, 915-16 (2003), which involved a procedurally proper summary dismissal that was based on an improper gr ound, we determined that we could affirm the dismissal on any proper ground. Thus, assuming that t he trial court summarily dismissed defendant'sNos. 2--04--0750 & 2--04--0751 cons.

- 4 - petition on the improper ground that it fails to ma ke a substantial showing of a constitutional violation, we may affirm that dismissal if the petition fails to pr esent the gist of a constitutional claim. As defendant concedes that it does not, we affirm. Defendant relies on three cases, none of which persuades us that we are required to reverse and remand for second-stage proceedings under the Act. In People v. Dauer , 293 Ill. App. 3d 329 (1997), the tria l court purported to enter a summary dismissal, but it dismissed the petition beyond t he 90-day limitations period. The dismissal was not a procedurally proper summary dismissal that was based on an impr oper ground; instead, because the court did not co mply with the procedural r equirements of a summary dismissal, the dismissal was void. See People v. Volkmar , 363 Ill. App. 3d 668, 671 (2006). Thus, in effect, there was no dismissal for the appellate court to affirm on any proper ground. Similarly, in People v. Merritte , 225 Ill. App. 3d 986 (1992), the trial court purported to enter a summary dismissal, but it dismissed t he petition at least partl y on the basis of the State's premature motion to dism iss. Again, the dismissal wa s not a procedurally proper summary dismissal on an improper ground; instead, the dismissal was void. See People v. Magdaleno , 188 Ill. App. 3d 384, 386 (1989). Finally, defendant cites People v. Reed , 302 Ill. App. 3d 1007 (1999), which requires a bit more consideration. There, the trial c ourt summarily dismissed the petition, apparently without any procedural im propriety, but based on its finding t hat the petition was untimely. The appellate court determined that the petiti on was timely; thus, the summary dismissalNos. 2--04--0750 & 2--04--0751 cons.

- 5 - was procedurally proper ye t based on an improper ground. 1 Nevertheless, the appellate court reversed and remanded.

1 Of course, the supreme court had not ye t determined that untimeliness is an improper ground for summary dismissal even when the petition is actua lly untimely. See People v. Boclair , 202 Ill. 2d 89, 99 (2002). Interestingly, both parties asked the appellate court to review what the trial court labeled its " 'advisory' " opinion that the petition was without merit. Reed , 302 Ill. App. 3d at 1010. However, the appellate court declined to do so, reasoning that nei ther the trial court nor the appellate court could issue an advisory opinion. We submit that the Reed court was unduly distracted by the term "advisory." The trial court's ruling that the petition lacked me rit was not so much an advisory opinion as it was an alternative basis for its summary dism issal. Similarly, had the appellate court reviewed that ruling and found it correct, t he court would not have issued an advisory opinion but simply would have ex ercised the well-settled principle, which we invoked in Cleveland , that an appellate court may affirm a trial court's judgment on any proper ground, even if the trial court relied on a different ground. See Cleveland , 342 Ill. App. 3d at 915.Nos. 2--04--0750 & 2--04--0751 cons.

- 6 - Thus, to the extent that Reed holds that an appellate court may not affirm on any proper ground a procedurally proper summary dismi ssal that was based on an improper ground, we decline to follow it. Defendant asserts, bluntly, that our willingness to reverse and remand due to procedural error but not due to substantive error "makes no sense." According to defendant, "[i]t obviously is just as important --perhaps more important --that the trial court be substantively correct as well as procedurally co rrect in its ruling. And, if procedural error at the first stage warrants remand for se cond-stage proceedings, then so too should substantive error at the first stage." We respectfully disagree. The sense behind our rationale is that, when a summary dismissal is substantively erroneous, it is merely erroneous; thus, we may affirm it on a different substantiv e ground. However, when a summary dismissal is procedurally erroneous , at least in the contexts of Dauer and Merritte , it is not merely erroneous but rather is void. As a void judgment is one that the trial court has no power to enter (People v. Rogers , 364 Ill. App. 3d 229, 246 (2006)), we see no way that such a judgment could be one that the appellate court has the power to affirm. Moreover, given a procedural error, we cannot fathom what an alternate procedural ground would entail. For the reasons set forth above, the judgment of the circuit court of Lake County is affirmed. Affirmed. BOWMAN and O'MALLEY, JJ., concur.