SECOND DIVISION

									December 10, 2002

No. 1-99-4213

THE PEOPLE OF THE STATE OF ILLINOIS, 

		Plaintiff-Appellee,

				v.

TERRANCE MACK, 

		Defendant-Appellant.	

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Appeal from the 

Circuit Court of

Cook County.

Honorable

Michael B. Bolan, 

Judge Presiding.

	JUSTICE BURKE delivered the opinion of the court:

	Defendant Terrance Mack appeals from an order of the circuit

court summarily dismissing his "Motion for Reconsideration of

Denial of Postconviction Petition/Successive Petition for Relief"

brought pursuant to the Post-Conviction Hearing Act (Act).  725

ILCS 5/122-1 et seq. (West 1998).  On appeal, defendant contends that procedural bars, such as untimeliness and the fact that this

is a successive postconviction petition, should not bar his claim,

that his petition set forth the gist of a constitutional claim

based on newly discovered evidence showing his actual innocence,

and that Public Act 83-942 (Pub. Act. 92-942, eff. November 23,

1983) violates the single subject rule of article IV, section 8, of

the Illinois Constitution (Ill. Const. 1970, art. IV, §8).  For the

reasons set forth below, we reverse and remand.

	STATEMENT OF FACTS

	Defendant, along with Richard Terrell and Adrian Hennon, were charged with first degree murder, attempted first degree murder,

armed violence, and aggravated battery following a drive-by

shooting that resulterd d int ehin the e death of killed one individual and injury to

ed a second.  The facts of the incident are set out in our opinion

affirming defendant's convictions and sentences on direct appeal

(People v. Mack, 238 Ill. App. 3d 97, 606 N.E.2d 165 (1992)) and only those facts relevant to our decision in the instant case are

will be recited here.  

	Defendant and Hennon were tried simultaneously by separate

juries.  At defendant's trial, the State maintained that defendant

had fired the shots, Terrell was in the backseat of the car, and

Hennon was driving the car from which the shots were fired. 

Defendant maintained that he was not in the car at the time of the

incident.  Defendant called Hennon to testify on his behalf, but

Hennon refused to testify, invoking his right to remain silent

pursuant to the fifth amendment.  Hennon had previously given an

oral statement to the police following his arrest in which he

stated that Terrance Hill was the shooter and that he had told the

police that defendant was not the shooter.  Defendant attempted to

admit Hennon's oral statement at his trial, but the trial court

denied his request, concluding that the statement was unreliable. 

Defendant testified on his own behalf and stated that he was not in

the car at the time of the shooting and he only entered the car

subsequent to the shooting, at which time the group was stopped and

arrested.

	Defendant was found guilty of all charges and, on November 3,

1989, he was sentenced to concurrent terms of 60 years'

imprisonment for first degree murder, 30 years' imprisonment for

armed violence, and 30 years' imprisonment for attempted murder. 

Hennon was also found guilty and sentenced to 40 years'

imprisonment for first degree murder, 20 years' imprisonment for

attempted murder, and 20 years' imprisonment for armed violence. 

Subsequent to defendant's trial, on January 12, 1990, Terrell pled

guilty to first degree murder and attempted murder in exchange for

a sentence of 22 years' imprisonment and 10 years' imprisonment, for

the respective offenses. 

	On direct appeal, defendant contended that the trial court

erred in refusing to introduce Hennon's oral statement.  We

affirmed the trial court (Mack, 238 Ill. App. 3d at 103) and the supreme court denied defendant's petition for leave to appeal

(People v. Mack, 148 Ill. 2d 649, 610 N.E.2d 1271 (1992)).  Subsequently, defendant filed for habeas corpus relief in the federal district court, which the court denied (Mack v. Peters, No. 93 C 2053 (N.D. Ill. 1994)), and the Seventh Circuit Court of

Appeals affirmed (Mack v. Peters, 80 F.3d 230 (7th Cir. 1996)).

	On November 4, 1996, a postconviction petition was filed on

behalf of defendant by attorney James Payonk, Jr.  On December 6,

the trial court summarily dismissed the petition on the bases that

it was untimely and raised issues that were barred under principles

of res judicata since they had been addressed on direct appeal.  On July 1, 1997, counsel's subsequent motion to vacate the summary

dismissal was denied and, on September 19, counsel filed a "Motion

for Leave to Appeal."  On February 17, 1999, defendant was advised

by the clerk of the appellate court, in response to his request as

to the status of his appeal, that no appeal had been filed on his

behalf.

	On October 12, 1999, defendant filed the pro se successive postconviction petition currently before this court, alleging newly

discovered evidence in the form of a March 9, 1998, affidavit of

Terrell that demonstrated defendant's actual innocence because

Terrell averred that defendant was not present at the time of the

shooting.  Defendant also alleged that his delay in filing this

postconviction petition was not due to his culpable negligence, but

rather due to the failure of his attorneys to do things correctly

and timely.  Defendant further alleged that he was placed in

segregation from December 1997 until June 1998.  At this time, he

was transferred to another facility where he remained in 24-hour

isolation until December 1998.  Defendant maintained that because

of the segregation and the fact he did not receive adequate

assistance from the prison's legal staff, the delay in filing this

petition should not have been held against him.  Specifically,

defendant stated that he was denied access to the court by the

failure of the Illinois Department of Corrections to provide him

with the meaningful assistance of trained personnel.  Lastly, with

respect to procedural matters, defendant alleged that any tardiness in filing his postconviction petition would have been avoided if

his counsel on direct appeal had exhausted state remedies before

proceeding in the federal court.  Based on the above, defendant

asked the trial court to consider his successive petition.

	The trial court summarily dismissed defendant's petition

without stating any reason or basis for doing so and this appeal

followed.

	ANALYSIS

	I.  Propriety of Summary Dismissal

	There are three levels or stages of review under the Act. 

People v. Coleman, 183 Ill. 2d 366, 379-82, 701 N.E.2d 1063 (1998). At the first stage, referred to as summary dismissal, the trial

court reviews only the allegations of the postconviction petition,

without any additional input from the State or the defendant. 

People v. Scullark, 325 Ill. App. 3d 876, 879, 759 N.E.2d 565 (2001).  At this stage, 

			"[i]f *** the court determines the

petition is frivolous or is patently without

merit, it shall dismiss the petition in a

written order."  725 ILCS 5/122-2.1(a)(2)

(West 1998).

Pursuant to the most recent authority of the Illinois Supreme

Court, at this first stage of the proceedings, the trial court can

only determine whether the petition is "frivolous or is patently without merit" and it may not dismiss the petition based upon

untimeliness.  Boclair, Nos. 89388, 89471, 89534 (Cons.), slip op. at 6 (August 29, 2002).  The trial court is "foreclosed from

engaging in any fact finding or any review of matters beyond the

allegations of the petition."  Boclair, slip op. at 6.  Thus, the supreme court held that "the trial court may dismiss a post-

conviction petition at the initial stage only if the petition is

deemed to be 'frivolous or *** patently without merit,' not if it

is untimely filed."  Boclair, slip op. at 7.  In so ruling, the Boclair court expressly overturned that portion of its prior decision in People v. Wright, 189 Ill. 2d 1, 723 N.E.2d 230 (1999), that could be read to the contrary, i.e., that the trial court could dismiss a postconviction petition at the first stage based on

untimeliness.  Boclair, slip op. at 6.

	Clearly, under Boclair, the trial court may not address timeliness at the first stage of postconviction proceedings. 

However, Boclair also dictates that the trial court may not address and resolve the issue of culpable negligence at the summary

dismissal stage.  Specifically, the Boclair court stated:

			"[W]hen a circuit court determines

whether a defendant is culpably negligent in

filing his petition late, the circuit court

makes an assessment of the defendant's

credibility.  [Citation.]  At this initial

stage of the proceedings, however, the court should only determine whether the petition

alleges constitutional deprivations.  The

process at the summary review stage measures a

petition's substantive virtue rather than its

procedural compliance.  [Citation.]  In

determining an issue of credibility, the

circuit court necessarily exceeds the boundary

set by [the summary dismissal procedures]." 

Boclair, slip op. at 8.

See also Coleman, 183 Ill. 2d at 381; People v. Caballero, 126 Ill. 2d 248, 250, 533 N.E.2d 1089 (1989); People v. Wegner, 40 Ill. 2d 28, 31-32, 237 N.E.2d 486 (1968) (all stating that the trial court

may not make factual findings or credibility determinations at the

summary dismissal stage).  Thus, a petition raising lack of

culpable negligence, like an untimely petition, must proceed to the

second stage of postconviction proceedings since resolution of

culpable negligence involves credibility determinations and matters

of procedural compliance unless the trial court determines the

petition is frivolous or patently without merit.*  See, e.g., Boclair, slip op. at 27 (McMorrow, J., dissenting) (emphasis added) ("According to the majority opinion, matters of 'procedural

compliance' (slip op. at 8) may not be considered in the initial stage of post-conviction review"); Boclair, slip op. at 40-41 (McMorrow, J., dissenting) (emphasis added) ("the fundamental

holding of Wright is that the issues of timeliness and culpable negligence are an affirmative defense that can be raised only by the State"; the trial court may not raise them sua sponte); People v. Collins, No. 90679, slip op. at 3 (March 15, 2002) (McMorrow, J., dissenting upon denial of rehearing August 29, 2002) ("we

concluded in Boclair that matters of timeliness must 'be left for the State to assert during the second stage of the post-conviction

proceedings' ").

	A conclusion that culpable negligence cannot be evaluated at

the first stage is buttressed by the relevant standards of review. 

We review a trial court's summary dismissal of a postconviction

petition de novo.  People v. Barrow, 195 Ill. 2d 506, 519, 749 N.E.2d 892 (2001).  Conversely, we review the trial court's

decision on culpable negligence to determine whether the trial

court's determination was manifestly erroneous.  People v. Caballero, 179 Ill. 2d 205, 214, 688 N.E.2d 658 (1997); People v. Van Hee, 305 Ill. App. 3d 333, 336, 712 N.E.2d 363 (1999).  A review of the trial court's decision based on the manifestly

erroneous standard presupposes that the trial court made

determinations of fact and credibility.  See, e.g., People v. Kolakowski, 319 Ill. App. 3d 200, 212, 745 N.E.2d 62 (2001) (questions of fact are reviewed under a manifestly erroneous

standard).  De novo review presupposes that credibility and fact questions are not at issue.  People v. Jones, 315 Ill. App. 3d 500, 505, 734 N.E.2d 207 (2000).  Thus, the relevant standards of review

demonstrate that no culpable negligence determination may be made

at the first stage of postconviction proceedings. 

	Based on the above rationale, we therefore find that the trial

court erred in summarily dismissing defendant's pro se postconviction petition, even though it was a second or successive

petition.  First, contrary to the direct mandates of the Act, the

trial court failed to state its reasons or bases for dismissing

defendant's petition.  725 ILCS 5/122-2.1(a)(2) (West 1998) (a

trial court's order must specify the "conclusions of law it made in

reaching its decision").  Thus, it is unclear on what basis the

trial court dismissed defendant's petition, i.e., whether lack of timeliness, that defendant failed to establish a lack of culpable

negligence, that defendant's petition was an improper successive

petition because defendant failed to establish cause and prejudice,

or that it was frivolous and patently without merit.  Since there

is no exception in the statutory language for not including a basis

for dismissal of a second or successive postconviction petition,

this court will not read one into the Act.

	Lastly, it would also appear improper for the trial court to

address defendant's claim of actual innocence at the summary dismissal stage.  In Boclair, the court concluded that "to allow the circuit court to dismiss summarily post-conviction petitions

for failure to present evidence of actual innocence in a timely

manner could lead to a miscarriage of justice."  Boclair, slip op. at 8.  As such, "a defendant's claim of actual innocence cannot be

reviewed when a circuit court enters a summary dismissal sua sponte, because the State does not have the opportunity to review the claim."  Boclair, slip op. at 8.

	Based on the foregoing, we reverse and remand this cause for

further proceedings consistent with the mandates of the Act and

supreme court precedent.  We make no findings on the merits of

defendant's claims with respect to lack of culpable negligence, the

propriety of a successive petition, or defendant's claim of newly

discovered evidence.

	II.  Constitutionality of Public Act 83-942

	Defendant also contends that Public Act 83-942 (Pub. Act 83-

942, eff. November 23, 1983), which amended the Act, violates the

single subject rule of article IV, section 8, of the Illinois

Constitution (Ill. Const. 1970, art. IV, §8).  In Boclair, the Illinois Supreme Court held that Public Act 83-942 does not violate

the single subject rule.  Boclair, slip op. at 13.  Accordingly, defendant's contention is without merit.

	CONCLUSION

	For the reasons stated, we reverse and remand this cause to the circuit court of Cook County for further proceedings.

	Reversed and remanded.

	GORDON and McBRIDE, JJ., concur.