FIFTH DI VISI ON December 19, 2008
No. 1-07-1014
THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) No. 90 CR 29983 ) SHONGO CO LLIER, ) The Honorable ) Thomas R. Sumner, Defend ant-App ellant. ) Judge Presi ding.
JUSTICE TOOMI N deliver ed the opi nion of the

court: Defend ant, Shongo Collier, appeals from an order of

the circ uit court o f Cook Coun

ty denying him leave to file a successive petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq . (West 2006)). Defendant contends that the trial court err ed because : (1) he presente d a free standing claim of a

ctual innocence ; and (2)the cour t improper

ly permitted input by the prosecutor during the first stage of the postconviction proce edings. Defendant also asserts that the court erre d in imposing fees and costs pursuant to section 22-105 of the Cod

e of Civil Pr

ocedure (Code) ( 735 I LCS 5/2 2-105 (We st 2006)) . He fur ther re quests that the mittimus be corrected to reflect a single c onviction for the offense of first degre e murder.
For the following reasons, we vac ate the order for fees and c osts, order the mittimus to be corrected and affirm the cour t’s judgment in all other respects.1-07-1014

2 BACKGROUND In 1991, following a benc h trial before Judge Howard Savag e, defendant was convicted of first degree murder and se ntenced to 45 ye ars’ imprisonment in the Department of Corrections. The conviction stemmed from the drive-by shooting of Keith Muldrew on Novembe r 18, 1990 , at or ne ar 7016 So uth Sang amon in the

city of Chicago. At tria

l, the sole eyewitness, Te

rrence Franks, identified defe ndant as the driver and shooter. Erica Wright corroborated Franks’ testimony that he left her apartment and joined up with the victim just prior to the shooting. Additionally, Ty rone Freeman testified that at 11 p.m. he had droppe d off defendant at his home, thereby contradicting defendant’s defe nse of alibi. Judgment was affirmed on direct appeal notwithstanding petitioner’s c laims of reasonable doubt and excessive sentence. People v. Collier , No. 1-92-0598 (1995) (unpublished order under Supreme Court Rule 23). On June 7, 1993, during the pendency of his direct appeal, defendant filed a pro se petition for postconviction relief. The petition alleged, inter alia , (1) illegal arrest; (2) perjury by Terrence Franks; (3) the State’ s manipulation of Tyrone Freeman’s testimony; a nd (4) trial counsel’s failure to properly investigate. The petition was summarily dismissed by the trial court upon a finding of res judicata or waiver. On April 18, 1995, the dismissal was affirmed. People v. Collier , No. 1-93-3513 (1995) (unpublished order under Supreme Court Rule 23). On August 2, 1999, private counsel filed a successive postc onviction on defendant’s behalf asserting a claim of actua l innocence based upon newly discovered evidence. The petition1-07-1014

3

incorporated affidavits of Terrenc e Franks and Erica Wright rec anting their trial testimony. Franks now averred that he did not witness the murder and stated he had falsely identified and

accuse d defend

ant at tri al. Similar

ly, Erica now stated t

hat she ha

d fabric ated her

testimony

to match that of Franks. On October 25, 1999, the trial cour t summarily dismissed the successive petition finding that defendant had failed to demonstrate that the proc eedings on the original pe ti ti on ha d b ee n f

un da me nt al ly d ef

ic ie nt an d t ha t d ef

en da nt ’s cl ai m w as ba rr ed by res judic ata . On March 19, 2001, we affirmed the dismissal, holding that petitioner had f ailed to show diligence in obtaining the affidavits of both Fra nks and Wright. People v. Collier , No. 1-99-4212 (2001) (unpublished order under Supreme Court Rule 23). On April 26, 2005, defendant filed another pro se petition f or relie f, this time

pursuant to section 2-1401 of the Code (735 IL CS 5/2-1401 (West 2004)). In that petition, he asserted that his right to due process had been violated by the State’s use of perjured testimony , as well as by the knowing use of testimony coerced by

a key off icer, Detective McWeeny . In support, he incorpor ated the identica l affida vits of Fr anks and Wright tha

t were e arlier r

ejecte d in his successive petition. On June 9, 2005, the trial court by w ritten order recharacter

ized the pleading as a peti tion for p ostconviction relie f befor e summari ly d

ismissing it as friv olous and p atently without merit. Defend ant appe aled, an

d on respondent’s motion, we remande d the matte

r pursua nt to People v. Shellstrom , 216 Ill. 2d 45, 833 N.E.2d 863 (2005). People v. Collier , No. 1-05-2432 (2006) (unpublished order pursuant to Supreme Court Rule 23). On January 18, 2007, defendant was retu rned to c ourt and g

iven his Shellstrom admonishments. On that occasion, defendant1-07-1014

4

elected to have his previously filed section 2-1401 petition treated as a successive petition for postconviction relief. Defendant requested 60 day s to amend the petition, which the court allowed. On March 7, 2007, d

efenda nt filed the instant p etition for postcon viction re lief, fa

cially captioned as “Newly

Discovered Evidence of Actual I nnocence.” I

n this second successive petition, he alleges that the State knowingly used perjured testimony of Tyrone Freeman, Terrence Franks and Er

ica Wright that had been coerced by Detective McWeeny . Defendant again i ncorpor ated the earlier affida vits of Fr anks and Wright, a s well as Freeman ’s affid avit dated October 7, 2006. Freeman ave rred that when Detective McWeeny and Assistant State’s Attorney Eileen Rubin took his statement, they directed that he change the time he dr opped off defendant in such manner as to destroy defendant’s defense of alibi. I n a supplement to the successive petition filed March 19, 2007, defendant further asserted that trial counsel was ineffective for failing to call Preston B erry, a potential witness who would have denied that an earlier altercation took place betwee n Muldrew and the defendant, thereby contradicting the State’s “motive” evidence presented at trial. On March 26, 2007, the trial court rejected the cla ims set forth in defendant’s successive petition and also granted the State’s motion for fees, costs and re duction of good-time credits. The dismissal order concluded: “That the defendant’s second

successor [ sic ] post-con

viction pe tition is summarily dismissedpursuant

to the ca use and prejudic e requir

ements set forth in People v. Pitsonbarger , 205 Ill. 2d 444, 793 N.E.2d 600 [ sic ] (2002) as these allegations are1-07-1014

5

frivolous and pate

ntly without me

rit, res judic ata , and otherwise waived. See also, People v . Blair , 215 Ill. 2d 427, 831 N.E. 2d 604 (2005).” ANA LYSIS 1. Dismissal of the Second Successive Petition We first address defendant’s contention that the trial court “misconstrued his freestanding claim of actual innocence to requir e compliance with the cause and prejudice te st” and erred in summarily dismissing the pe tition because defendant presented the gist of an actual innocenc e claim ba sed on ne wly discover ed evide nce. Alte rnative ly, defenda

nt asser ts that his allegations sufficed to establish the cause-a nd-prejudice test. In re sponse, the State maintains that the trial court’s order did not constitute a first-stage dismissal but, rather, de nied defendant leave to file a second successive postconviction petition. While the trial court may impliedly have suggested a first-stage dismissal by directing that the “second successor [ sic ] post-conviction petition is summarily dismissed,” the order nonethel ess expre ssly

states tha t dismissal i s “pursua

nt to the c ause and

prejudic e requir

ements set forth in People v

. Pitsonbar

ger.” Although we concur in the State’s position that the trial court’s order denied leave to file the succ essive petition, our resolution of this issue is premised upon different grounds. A trial court’s compliance with statutory procedures implicates a question of law. Accord ingly, our stan

dard of r eview is de novo

. People v. Spivey , 377 Ill. App. 3d 146, 148, 879 N.E.2d 391, 394 (2007). Our review is of the trial court’s judg ment, not the reasons given for the judgment. People v. Lee , 344 Ill. App. 3d 851, 853, 801 N.E.2d 969, 972 (2003).1-07-1014

6

The Post-Conviction Hearing Act (Act) (725 I LCS 5/122-1 et seq . (West 2006)) provides a means whereby

criminal defendants can assert that their convictions wer e the result of a substantial denial of their rights under the United States Constitution, the Illinois Constitution, or both. 725 I

LCS 5/1 22-1(a)

(West 2006 ); People v

. Harris , 206 Ill. 2d 293, 299, 794 N.E.2d 181, 186 (2002). Postconviction relief is limited to constitutional deprivations that occurred at the original trial. People v. Coleman , 183 Ill. 2d 366, 380, 701 N.E.2d 1063, 1071 (1998). The Act generally

limits a defendant to the filing of but one postconviction petition, ( People v. Holman , 191 Ill. 2d 204, 210, 730 N.E.2d 39, 43 (2000)) and expressly provides that any claim of substantial denia l of constitutional rights not raised in the original or amended petition is waived. 725 I LCS 5/1 22-3 (Wes t 2006). N otwithsta nding thi s proced

ural bar , claims in successive petitions may be r eviewed when the proceeding s on the original petitions are deficient in some fundamental way

. People v. Britt-El , 206 Ill. 2d 331, 339, 794 N.E.2d 204, 209 (2002). Section 122-1(f) of the Act provides the legislature’s limited grant of authority for

success ive petiti ons:

“Only one petition may be filed by a petitioner under this Article without leave of the court. Le ave of court may be granted only

if a petitioner demonstrates

cause for his or her failure to bring the claim in his or her i nit ial post-conviction procee dings and prej udice re sults from that fail ure.” 72 5 IL CS 5/122- 1(f) (We st 2006). Adoption o f the ca

use-and -prejud ice test i n subsect ion (f) th us codifi es our supreme court’s holding in People v. Pitsonbarger , 205 I ll. 2d 444, 7 93 N.E.2d 609 (2002 ). Cause

is1-07-1014

7

defined as an obje ctive fa

ctor, exte rnal to the

defense , that impe ded the de fendant ’s effort to rais e the claim in an earlier proceeding

. Pitsonbarger , 205 Ill. 2d at 460, 793 N.E.2d at 621. Prejudice is defined as an error so serious that it affe cted the entire trial to the extent that the resulting conviction violates due process. Pitsonbarger , 205 Ill. 2d at 464, 793 N.E.2d at 624. Both requirements must be satisfied in order for the defe ndant to prevail. Pitsonbarger , 205 I ll. 2d at 464, 793 N.E.2d at 624. In People v

. LaPointe , 227 Ill. 2d 39, 879 N.E.2d 275 (2007), our supreme c ourt held that because section 122-1(f) “expressly conditions leave to file on the petitioner’s satisfaction of the

cause- and-pre

judice te st, a sec ond or suc cessive petition c annot be c onsidere d filed de spite its having been previously

accepted by

the clerk’s office.” LaPointe , 227 Ill. 2d at 44, 879N.E.2d at 278. The c ourt thus d

etermine d that, “H aving b een den ied leav e to file t

he petition, La

Pointe’s case ended at that point without his second petition having ever bee n properly filed unde

r the statute.” LaPointe , 227 Ill. 2d at 44, 879 N.E.2d at 278. Accordingly, the submission of a second postconviction petition does not in itself trigger review on the me rits. People v. Wyles , 383 Ill. App. 3d 271, 274, 891 N.E. 2d 437, 439 (2008). Earlier, in People v

. DeBerr y , 372 I ll. App. 3d

1056, 868 N .E.2d 382 (2007), the Fourth District a ffirmed the dismiss al of def

endant’ s succes sive postc onviction petition be cause defendant had likewise failed to comply with section 122-1(f) by

first seeking leave to file the successive petition. The court held that section 122-1(f) acts as a “procedural hurdle to any such consideration that the legislature has intentionally chosen to impose regarding such pe titions.” DeBerry , 372 Ill. App. 3d at 1060, 868 N.E.2d at 384. A violation of the statute “trumps1-07-1014

8

anything tha

t defendant’s petition may c ontain.” DeBerry , 372 Ill. App. 3d at 1060, 868 N.E.2d at 385. See also People v. Thompson , 383 Ill. App. 3d 924, 928, 890 N.E.2d 1119, 1124 (2008). An identical result obtained in People v. Spivey , where the Secon

d Distric t held tha

t, in accordance with LaPointe , a defe ndant must

obtain the

trial cou rt’s expre ss leave

in order to file a second postconviction petition. The trial court’s consideration of the merits of the petition cannot be construed as an implicit ruling that the defenda nt has met section 122-1(f)’s threshold. Spivey , 377 Ill. App. 3d at 149-50, 879 N.E.2d at 395-96. Moreove r, the court further held that because section 122-1(f) is a proce dural prerequisite to obtaining review on the merits, the fa ilure to meet the

require ments of the statute

means tha

t the tria l court ne ed not, an

d should no t, consider the merits of the petition, and the same proscription applies to the reviewing court. Spivey , 377 Ill . App. 3d at 1 50, 87 9 N.E. 2d at 3 95-96 , quot ing DeBerry , 372 Ill. App. 3d at 1060, 868 N.E.2d at 384-85. Howeve r, the pr ocedura l history of this ca se warr

ants a re laxation of

the brig ht-line r ule articulated in LaPointe

and other appellate court decisions. Notably, here as in People v . Smith , 383 Ill. App. 3d 1078, 892 N.E.2d 55 (2008), defenda nt’s 2005 petition for relief was grounded on section 2-1401 and, following recharac terization as a successive postconviction petition, was summarily dismissed. We remanded the matter pur suant to Shellstrom and afte r rece iving his mandated adm onishment s, defendant elected to t reat the fili ng as a successiv e petition . By granting defendant’s re quest to amend the petition, here, as in Smith , the tria l court imp licitly acknowledged a request for leave to file and thus fulfilled the requirements of section 122-1(f ). Smith , 383 I ll. App. 3d

at 1084, 8 92 N.E.2d

at 62. Although we

agree that the f iling of a separ ate1-07-1014

9

motion for leave to file a successive petition is the preferre d mode of proceeding, given the unique circumstances presented here, the procedure did not hinder the trial court from performing its review under section 122-1(f ). See People v. Conick

, No. 105621, slip op. at 7 n.2 (November 20, 2008). In the instant ca se, altho

ugh def endant c oncede dly

failed to seek lea ve of cou rt prior t o filing h is second success ive petiti on, he as serts tha t he was not requir

ed to do so b ecause

“a valid claim of actual innocence can over come the cause and prejudice test.” Althoug h we have no disagreement with defendant’s asser tion that claims of actual innocence may be raised at any time, such claims are not self-executing but, rather, must be ra ised within the framework of an avenue providing relief. I n People v. Washington , 171 Ill. 2d 475, 489, 665 N.E.2d 1330, 1336- 37 (1996), our supreme court recog nized that the appropriate footing in the I llinois Constitution for asserting newly

discovered claims of actual innocence wa s under the Post-Conviction Hearing Act. Thus, while mindful of Pitsonbarger ’s reach, we do not subscribe to defendant’ s view that the mere allegation of actua l innocence serves as a talisman to avert the cause-andprejudice test. Although a showing of actual innocence may relax the bar of waiver, section 122- 1(f) nonetheless mandates that defendants seek le ave of court before filing succ essive postconviction petitions. People v. Daniel , 379 Ill. App. 3d 748, 750, 886 N.E.2d 383, 385 (2008). Even ass

uming the

merits of defenda nt’s asse rtion that claims of actual in nocenc e trump the caus e-and-

prejudic e test, ou

r analy sis of the r

ecord within that c onstruct lends little

support to his position. Among the touchstones for judging claims of actual innoce nce is the requirement1-07-1014

10

that the e vidence adduce d by

the defe ndant must

first be “ newly discover ed.” Tha t means it m

ust be evidence that was not available at a def endant’s trial and that he could not have discovered sooner through due diligence. The evidence must also be material and noncumulative. People v. Morgan , 212 Ill. 2d 148, 154, 817 N.E.2d 524, 527-28 (2004). I n addition, it must be of such conclusive character that it would probably change the result on retrial. People v. Barrow , 195 Ill. 2d 506, 540-41, 749 N.E.2d 892, 913 (2001). However, “actual innocence” is not within the rubric of whether a defendant has bee n proved guilty be

yond a rea sonable doubt. People v. Jones , 362 Ill. App. 3d 31, 34, 839 N.E.2d 539, 542 (2005). Rather, the hallmark of “actual innocenc e” means “total vindication,” or “exoneration.” People v

. Savory , 309 Ill. App. 3d 408, 414-15, 722 N.E.2d 220, 224-25 (1999). Here, d efenda nt’s clai m of actual innoce

nce nec essarily

fails for twofold r easons. F irst, as to Tyrone Freeman, the purported machinations of Detective McWeeny and Assistant State’s Attorney Rubin wer

e essent ially vetted a t trial as well as in

defenda nt’s firs t pro se postconviction petition. Although Freeman’s affidavit did not materialize until the pendency of defendant’s section 2-1401 petition, precedent instructs that evidenc e is not newly discovere d when it pr

esents f acts alr eady known to a

defenda nt at or pr ior to tria l, though the sourc e of thes e facts may ha

ve been unknown, unavailable or uncoopera tive. See People v. Moleterno , 254 I ll. App. 3d 615, 625, 627 N.E.2d 129, 136-37 (1993). As regards Te rrence Franks and Erica Wright, their changing stories wer e likewise explored at trial. Moreover, in affirming the dismissal of defendant’s first successive petition, we held that defenda nt had failed to show diligence in obtaining the witness’s affidavits. Repac kaging those allegations in support of1-07-1014

11

defendant’s actual innocence cla im undermines any suggestion of diligence. Second, a s noted, the newly discover ed evide nce must b e of such

conclusi ve natur e that it would probably cha

nge the result on retrial. Barrow , 195 Ill. 2d at 540-41, 749 N.E.2d at 913. Evidenc e that mer

ely impeach es a witne ss will ty pically not be of s

uch conc lusive characte

r as to justify postconviction relief. People v. Chew , 160 Ill. App. 3d 1082, 1086, 513 N.E.2d 1099, 1101 (1987). Here, none of the alleg ations of defendant’s proffered af fidavits go to actual innocence. At best, they

merely impeac

h or contradict trial testimony. Give n the responses of Freema n at trial , coupled

with his impe achment

by A ssistant Sta

te’s Attorney

Rubin, the

time discrepancies do not establish defendant’s innocence but, rather, impact Freeman’s cre dibility as a witness . Similarly

, as reg ards Fr

anklin an d Wright, the allegations of their 199 8 affida

vits

measure d again st their tr

ial testimony a

ddress c onsidera

tions of credibilit

y that go to r

easonab le doubt, not actual innocence. For diff erent r easons w e likewis e reject the sug gestion that Pres ton Ber

ry ’s affid avit offered in support of defendant’s claim of inef fective assistance of counsel comes within the rubric o f actua

l innocen ce. Fr eestand ing cla ims of innoc ence contemplate that the newly discovered evidence is not also being used to supplement the a ssertion of another constitutional violation with respect to the trial. Washington , 171 Ill. 2d at 479, 665 N.E.2d at 1332. Accordingly , in People v. Hobley , 182 Ill. 2d 404, 696 N.E.2d 313 (1998), our supreme c ourt held that newly discover

ed evidence of a nega

tive fingerprint report and a second gasoline can

recove red fro m the crime scene , while sup portive o f defen

dant’s Brady , claim, could not also be raised as a claim of actual innocence

. Hobley , 182 I ll. 2d at 44 4, 696 N.E .2d at 333 . See also1-07-1014

12

People v . Brown , 371 I ll. App. 3d

972, 984, 8 64 N.E.2d

767, 778 ( 2007) (affidavit s used to assert ineffective assistance of counse l claim could not also be used to support a free-standing claim of actual innocence). From the foreg oing disc

ussion one

could we ll conclu

de that de fendant

has employe d his claims of actual innocence essentially as a vehicle to challenge the suff iciency of the

evidence. However, it has long been established that rea sonable doubt of a defendant’s guilt is not a proper issue for a postconviction proceeding. People v. Frank , 48 Ill. 2d 500, 504, 272 N.E.2d 25, 27 (1971). Succinctly stated, it is not the purpose of the Act to redetermine guilt or innocence. People v. Eddmonds , 143 I ll. 2d 501, 5 10, 578 N. E.2d 952, 9 55-56 (19 91). Her e, it is inescap able tha

t the def endant ha s repackaged

the rea sonable d

oubt arg uments ad

vanced at trial, on direct appeal, and collateral review and placed them upon the altar of actual innocenc e. Yet, a defendant may

not simply offer his interpreta tion of the original proceedings in support of the argument that “new facts” wa rrant reconsideration of the issue. Barrow , 195 Ill. 2d at 522, 749 N.E.2d at 903. For the foregoing reasons, we reject defendant’ s claim of actual innocence. Alterna tively , defend

ant conte nds that he

demonstr

ated ca use-and -prejud ice for failing to present the claims in his second postconviction petition. Although both requirements must be met ( Pitsonbarger , 205 I ll. 2d at 46 4, 793 N.E .2d at 624 ), our ini tial focu s is upon ca

use; that i s, whether defenda nt has est ablished that an ob

jective f actor, e xternal to t

he defe nse, impe ded his efforts to raise the claim in an earlier proc eeding. Pitsonbarger , 205 Ill. 2d at 460, 793 N.E.2d at 621-22. Considering first defendant’s perjury claim, as previously noted, the r ecantations of Terrence Franks and Er

ica Wright were considered by the court and rejected by our order1-07-1014

13

affirming the dismissal of defendant’s first succe ssive postconviction petition. See People v. Collier , No. 1-99-4212 (2001) (unpublished order under Supreme Court Rule 23). Similarly , the seeds of Tyr

one Freeman’s revelations wer e in early bloom as e

videnced from his trial testimony and suff iciently blossomed

to warra nt inclusion in defe

ndant’s f irst pro se postconviction petition filed dur ing the p endency of

defenda nt’s dire ct appea

l. Finall y, a s rega rds to def endant’ s claim of ineffective assistance of counsel, the re cord clearly shows that defendant was well aware of the purported significance of Preston B erry f rom the time of trial onward. Trial counsel’s failure to secur e the atte ndance of Ber ry at trial w as among

the claim s raised

in defen dant’s f irst pro se petition, and he has failed to provide a satisfactory explanation for failing to locate Berry and secure his affidavit for some 17 y ears. We find tha

t defend ant’s fa ilure to de

monstrate cause a lone prov ided a suf ficient b asis to

warran t the tria l court’s denial of his secon d succes sive postc onviction petition. M oreover , it is abundan tly c lear tha

t defend ant has f ailed to sa

tisfy the second requir

ement of prejudic e. Despi

te defendant’s proffer of rec anted testimony, perjury and trial counsel’s ineffectiveness, defenda nt has failed to demonstrate that his claims so infected the entire trial that his resulting c onviction violated the process. Pitsonbarger , 205 Ill. 2d at 464, 793 N.E.2d at 624. Res judicata and forfeiture likewise bar further conside ration of these claims. 2. Proprie

ty o f the State ’s Partic ipation in t he Proce edings We next consider defendant’s claim that the circuit court’s reliance on the State’s input at the first stage of his postconviction proceeding ma ndates reversal of the court’s summary dismissal and a remand for further procee dings. The claim stems from the court’s interaction1-07-1014

14

with the pr

osecutor upon rec eipt of ou

r 2006 ord

er rema nding the matter f or complia

nce with Shellstrom . Defendant submits that the colloquy be tween the court and counsel violates the requirement of People v. Gaultney , 174 Ill. 2d 410, 419-20, 675 N.E.2d 102, 107 (1996), that at the first step of postconviction proceedings, the court must consider the de fendant’s petition without any input from the State. Although we share in the efficacy of Gaultney ’s proscription, the indep endent r

eview it s eeks to uphold conc erns det erminati ons of whe

ther the petition is frivolou s or is pate

ntly without me

rit. See 7 25 IL

CS 5/122-2. 1(a)(2 ) (West 200 6). We ag ree with the State that this rule has no application where, as here, def endant’s successive petition had not yet advanc ed to the first stage of postconviction proceeding s. Consequently, because the court had yet to docke

t the successive petition, it is axiomatic that there was no properly filed petition for the court to consider. See LaPointe , 227 Ill. 2d at 43-44, 879 N.E.2d at 277-78. An identical claim was raised in the First District case of People v . Smith , 383 Ill. App. 3d 1078, 892 N.E.2d 55 (2008), where the input between the court a nd counsel likewise followed remand for Shellstrom admonishments. In Smith , as here, the colloquy embraced the proper manner of proceeding on def endant’s remanded pro se section 2-1401 petition for review. 735 IL CS 5/2-1401 (West 2004). Discussion did not focus on the merits of defendant’s claims, but rather on the nature of the procee ding and the need to writ-in the defendant fr om the Department of Corrections pursuant to Shellstrom ’s requirements. In turn, def endant appeared and following receip t of his ad

monishmen

ts, elec ted to hav e his sec tion 2-140 1 petition r echara cterized as a successive postconviction petition and was granted 60 day s to file an amended petition. Although there was additional interplay between the court and counsel in defendant’ s absence on1-07-1014

15

March 28, 2007, the colloquy again focused on determining the ba ckground and procedural posture of the case. Thus, wha

t transpir ed during severa l trunca ted excha nges le nds no supp ort to the c laim that the court improperly pe rmitted input by the State in resolving a de cisive issue in the proceedings. Here, as in Smtih , the record fails to demonstrate that the State discussed with or influenc ed the co

urt in its de cision to d

eny defenda nt leave to file his

petition. N either the merits of the petition, nor the procedural hurdles were discusse d. The colloquy betwe en the court and the assistant State’s Attorney wa s directed only to the proc edural posture of the case and the proper method of proceeding on re mand. See Smith , 383 Ill. App. 3d at 1089-90, 892 N.E.2d at 66. 3. Court’s Imposition of Sanctions We next consider defendant’s claim that the trial court improperly imposed sanctions against him upon a determination that his petitions were frivolous under section 22-105 of the Code (735 IL CS 5/22-105 (West 2006 )). The s anctions included an asses sment of f

ees and c osts in the amount of $160 imposed on the instant petition, as well as on defendant’s first successive petition su

mmarily dismissed i

n 1999. Ad

ditionally , the cour t revoke d 180 day

s of goo d time premised upon the filing of a frivolous petition. We agree with defendant that the cour t did not have jurisdiction to enter the assessment fo r f ee s a nd co st s b ec au se th e a pp ea l f ro m h is 19 99 pe ti ti on ha d l on g b ee n f in al . A dd it io na ll y, the order does not explain the basis for the $160 calculation, nor can we discern which portion applies to the 1999 petition as distinguished from the instant matter.1-07-1014

16

Moreover, we find similarly disquieting that portion of the order revoking defe ndant’s good-time credits. Although the court profe ssed to act pursuant to section 3-6-3(d) of the Unified Code of Corrections (730 IL CS 5/3-6-3(d) (West 2006)), that statute does not vest the court wit h any authority to revoke good time . The pro cedure contempl ated unde

r the stat ute provides that upon notification that a court has specifically found that a motion or other paper filed by a prisoner

is frivolous, the Department of Corrections is mandated to conduct a hear ing upon charges aga

inst the prisoner before the Prisoner Review Boar d to revoke up to 180 days of good-c onduct cr

edit. For purposes of this sub section, “frivolo us” is def ined by five sep arate crite ria, n one of

which appear s in t he tri al cou rt’s o rder. 7 30 ILCS 5/ 3-6-3 (d)(1) (A) th rough (d)(1)(E) (West 2006). Obviously , the court exceeded its jurisdiction in its revocation of goodtime credits. Althoug h defend ant does n

ot argu e nor do w e discer

n that stat utory fees an d costs co uld not be impo sed unde

r the pre vailing statutes, that is not t

he situati on we ar

e calle d upon to address. Rather, because we find that the c ourt acted bey ond its jurisdiction and the order likewise lacks spe cificity

, we vac ate the order impo sing fe es and co sts and re voking good-time credits. 4. Correction of the Mittimus Defendant further maintains that the mittimus should be corrected to acc urately state tha

t he was c onvicted

of a single count o f first de gree m urder. T he State c oncurs in

that req uest, noting that this court may c orrect a mittimus and need not remand the matter to the trial court. Accordingly , the mittimus should be corrected to reflect a single conviction of f irst degree1-07-1014

17

murder as alleged in count I of the indictment.

CONCLUSIO

N Based upon the foregoing reasons, we affirm the order of the c ircuit court denying defendant leave to file a second succ essive postconviction petition, we vacate the order assessing fees and costs and revoking g ood time credits and correct the mittimus. Affirmed in part and vacated in part; mittimus corrected. FITZG ERALD SMITH, P.J., with O'MARA FROSSARD, J., concur.1-07-1014

18 REPORTER OF DECISIONS – IL LINOIS A PPELLATE COURT

(Front Sheet to be Attached to Each Case) THE PEOPL

E OF THE

STATE OFIL

LI NOI S, Respondent-Appellee,

v. SHONGO CO LLIER, Petitioner -Appella nt.

Nos. 1-07-1014 Appella te Cour t of I llinois First District, FI

FTH Division December 19, 2008 (Give mon

th, day and y

ear ) JUSTIC E TOOMI

N deliv ered the opinio n of the

court: Fitzgerald Sm

ith, P.J. with O’Mara Fros sard, J., concur [s] dissent[s]

Lower Court and T rial Judge(s) i n form indicated in t he margin: Th e H ono rable Thomas R. Sum ner , Judge Presiding

.

Indi cate if

att orney repre sent s APPELLANTS or APPELLEE S and i nclu de att orney s of

couns el. Indi cate the word NONE if n ot re prese nted. Attorney for Petitioner-Appellan t Shongo Collier. : Patricia Unsinn, Depu ty Defender Ginger Leig

h Odom Office of the State App ellate Defender 203 North LaSalle S treet - 24 th Floor Chicago, I

L 60601 Attorneys for Resp ondent-People of the State of I llinois: Richard A. Dev ine State’s Attorney County of Co ok Room 309- Richard

J. Daley Center , Chicago, I

L 60602 Of coun sel: James E. Fitzgerald, Eve Reilly , Louis A. Crisos tomo, Assistant State’s Attorneys. Please U se Fol low ing Form: Co mple te TITLE of Case

Docket No. COURT Opini on Filed

JUSTI CES

APPEAL f

rom the Circuit

Ct. of Coo k Co unt y, Chancery Div.

For APPELLA

NTS, John Doe, of Chicago. For APPELLEES, Smith and S mith of Chica go, Joseph Brow

n, (of Counse l) Also add attorney s for third-party appellants or appellees.1-07-1014

19