NO. 4-06-0543 Filed 5/4/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

 Plaintiff-Appellee,

v.

JAMES T. DeBERRY,

 Defendant-Appellant.

)

)

)

)

)

)

)

)

Appeal from

Circuit Court of

Macon County

No. 96CF1460

Honorable

Theodore E. Paine,

Judge Presiding.

_________________________________________________________________

PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

In May 1997, a jury convicted defendant, James T.

DeBerry, of attempt (first degree murder) (720 ILCS 5/8-4(a), 9-

1(a)(1) (West 1996)) and home invasion (720 ILCS 5/12-11 (West

1996)). The trial court later sentenced him to 20 years in

prison on each conviction, with those sentences to be served

concurrently. 

In January 2000, defendant filed a petition under the

Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-8 (West

2000)), which the trial court dismissed in February 2000. In May

2003, defendant filed a second postconviction petition, and in

March 2006, defendant amended it. In May 2006, the court granted

the State's motion to dismiss defendant's amended petition. 

Defendant appeals, arguing that the trial court erred

by dismissing his March 2006 amended postconviction petition. We
- 2 -

disagree and affirm.

I. BACKGROUND

At defendant's June 1997 sentencing hearing, the trial

court imposed concurrent 20-year prison sentences upon defendant

and directed that the truth-in-sentencing provision of the

Unified Code of Corrections (730 ILCS 5/3-6-3(a)(2)(ii) (West

1996)) applied to him. Defendant appealed, and this court

affirmed and remanded with directions that the trial court amend

the sentencing order to reflect that defendant was entitled to

day-for-day credit on his sentences because the truth-in-sentencing provision was unconstitutional. People v. DeBerry, No. 4-97-

0532 (May 10, 1999) (unpublished order under Supreme Court Rule

23).

Defendant filed his initial postconviction petition in

January 2000, and the trial court dismissed it in February 2000. 

Defendant did not appeal that dismissal.

In May 2003, defendant filed his second postconviction

petition, and the trial court appointed counsel to represent him. 

In August 2004, the State filed a motion to dismiss defendant's

second petition. In response, defendant filed a motion in May

2005 for an extension of time to file an amended postconviction

petition. The State did not object, and in March 2006, defendant

filed his amended petition. 
- 3 -

In April 2006, the State filed its amended motion to

dismiss defendant's successive postconviction petition. In May

2006, the trial court dismissed defendant's petition.

This appeal followed.

II. DEFENDANT'S FAILURE TO COMPLY WITH

SECTION 121-1(f) OF THE ACT

Defendant argues that the trial court erred by dismissing his March 2006 amended postconviction petition. In so

arguing, defendant concedes that (1) the amended petition constituted his second postconviction petition and (2) it was untimely

because it was filed well outside the time periods specified in

section 122-1(c) of the Act (725 ILCS 5/122-1(c) (West 2004)). 

Nonetheless, he contends that these procedural hurdles did not

justify the court's dismissal of his amended petition because (1)

he purports to be advancing a claim of actual innocence (see

section 122-1(c) of the Act) and (2) his delay in filing the

petition was not due to his culpable negligence. We disagree.

A. Standard of Review

The standard of review for a dismissal of a

postconviction petition after counsel has been appointed and

given an opportunity to amend a defendant's pro se petition is de

novo. People v. Whitfield, 217 Ill. 2d 177, 182, 840 N.E.2d 658,

662 (2005).

When reviewing a trial court's dismissal of a
- 4 -

postconviction petition, we agree with the views expressed by the

First District Appellate Court in People v. Lee, 344 Ill. App. 3d 

851, 853, 801 N.E.2d 969, 972 (2003), that although the trial

court's reasons for dismissing a petition may provide assistance

to this court, we review the trial court's judgment and not the

reasons given for that judgment. Thus, we will affirm the trial

court on any basis supported by the record even if the trial

court did not mention its reasons or reasoned incorrectly. See

also People v. Sawczenko, 328 Ill. App. 3d 888, 897, 767 N.E.2d

519, 527 (2002) (a reviewing court may affirm the dismissal of a

postconviction petition for any reason warranted by the record,

regardless of the reasons stated by the lower court).

B. The Application of Section 122-1(f) of the Act to This Case

In describing the procedural history of this case, we

have intentionally chosen not to discuss (1) the substance of the

claims set forth in defendant's March 2006 amended postconviction

petition, (2) the reasons advanced by the State for why that

petition should be dismissed, or (3) the reasons given by the

trial court for doing so. We omitted those topics because none

of them matters. 

Instead, the trial court properly dismissed defendant's

amended petition because he failed to comply with section 122-

1(f) of the Act (725 ILCS 5/122-1(f) (West 2004)), which sets

forth a procedural hurdle for a defendant seeking to file a
- 5 -

second or successive postconviction petition. Subsection (f),

which the legislature added to the Act on January 1, 2004, reads

as follows: 

"(f) Only one petition may be filed by a

petitioner under this [a]rticle without leave

of the court. Leave of court may be granted

only if a petitioner demonstrates cause for

his or her failure to bring the claim in his

or her initial post[]conviction proceedings

and prejudice results from that failure. For

purposes of this subsection (f): (1) a prisoner shows cause by identifying an objective

factor that impeded his or her ability to

raise a specific claim during his or her

initial post[]conviction proceedings; and (2)

a prisoner shows prejudice by demonstrating

that the claim not raised during his or her

initial post[]conviction proceedings so infected the trial that the resulting conviction or sentence violated due process." 725

ILCS 5/122-1(f) (West 2004).

In People v. Brockman, 363 Ill. App. 3d 679, 688-89,

843 N.E.2d 407, 415 (2006), the court discussed section 122-1(f)

and wrote the following: 
- 6 -

"The Act contemplates the filing of only one

postconviction petition, and the General

Assembly's purpose in enacting this statute

[(section 122-1(f))] was an attempt to limit

a defendant from filing frivolous petitions. 

Accordingly, we find the trial court could

have properly dismissed defendant's successive postconviction petition on the basis

that defendant had failed to obtain leave of

the court before filing the petition." 

Although we agree with the above, we note that the Fifth District

in Brockman also wrote the following: "[Section 122-1(f)] does

not specifically state that a defendant must obtain leave of the

court before filing a successive petition, but that is the

implication of the statute." (Emphasis in original.) Brockman,

363 Ill. App. 3d at 688, 843 N.E.2d at 415. We take the Brockman

decision one step further and now hold that section 122-1(f)

unequivocally requires that a defendant must obtain leave of

court before filing a successive petition, and if a defendant

fails to do so, the court, whether sua sponte or on the State's

motion, should dismiss any such petition. In taking this action,

the court need not--and should not--concern itself with the

merits of any claims, contentions, or arguments that the petition

contains. Section 122-1(f) constitutes a procedural hurdle to
- 7 -

any such consideration that the legislature has intentionally

chosen to impose regarding such petitions. See also People v.

LaPointe, 365 Ill. App. 3d 914, 921, 850 N.E.2d 893, 899 (2006)

("Until the trial court grants such leave [to a defendant under

section 122-1(f) of the Act], a second or subsequent petition is

not properly on file and may not be considered on its merits. To

hold otherwise would be to treat section 122-1(f) as though it

did not exist").

Just as trial courts should not consider anything

contained within a postconviction petition that violates section

122-1(f) of the Act, courts of review should be so limited as

well. Accordingly, when, as here, we are reviewing the dismissal

of defendant's postconviction petition and we conclude that

section 122-1(f) has been violated, we have nothing further to

discuss or review. That conclusion trumps anything that defendant's petition may contain.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

KNECHT, J., concurs.

COOK, J., dissents.
- 8 -

JUSTICE COOK, dissenting:

I respectfully dissent. The trial court effectively

granted defendant leave to file the petition when it went ahead

and heard it. See Fischer v. Senior Living Properties, L.L.C.,

329 Ill. App. 3d 551, 771 N.E.2d 505 (2002). Also, the second

postconviction petition was filed in May 2003. Section 122-1 was

not amended to add subsection (f) until January 2004. 725 ILCS

122-1(f) (West 2004).

An appellate court may affirm on the basis of an issue

not raised in the trial court, but we should be careful in doing
- 9 -

so. "[T]he appellate court should not consider different theories or new questions not raised in the trial court if they might

have been refuted or overcome had they been presented below." 

Geaslen v. Berkson, Gorov & Levin, Ltd., 155 Ill. 2d 223, 230,

613 N.E.2d 702, 705 (1993). "[T]he appellate court should take

care that litigants are not deprived of an opportunity to present

argument." Geaslen, 155 Ill. 2d at 230, 613 N.E.2d at 705. The

State gains an advantage by raising these issues for the first

time in the reviewing court. If the State had raised the issue

in the trial court, the trial court may have granted leave to

file the petition or allowed it to be amended.