No. 2--07--0293 Filed: 3-25-08

IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court IL LI NOI S, ) of Du Pa ge Co un ty. ) Plaintiff-Appellee, ) ) v. ) No. 98--CF--1488 ) RAUL C. CEJA, ) Honorab le ) Kathry

n E. Cresw ell, Defend ant-App ellant. ) Judge , Pres idin g.

JUSTICE GROMETER d

elivere d the opini on of the c ourt: This case is before us on defe ndant Rau

l C. Ceja's motion for summary remand. Defendant contends th at th e t ri al co ur t i mp ro pe rl y dismissed hi s petition under the Post-Conviction Hearing Act (Act) (725 IL CS 5/122--1 et seq. (West 2006)). We agree, and, for the rea sons that f

ollow, we vacate and remand. A summary of the p ro ceeding s up until thi s point in the litigati on would be

helpful in understanding our disposition of this appeal. Hence, we set forth the following. After a jury trial in1999, defendant was convicted of first-deg ree murder (720 I

LCS 5/9--1 (West 1998)). On April 17, 1999, he was sentenced to death. Defendant appealed to the supreme c ourt; that appeal was not resolved until Apri l 2 003. M eanwhile, defendant filed a pro se postconvi ction pet ition in Aug

ust 2001. Also, Gov ernor Geo rge Ry an commut

ed defe ndant' s sentenc e to natur al life in prison in January 2003. After seeking

and rec eivin g severa l cont inuan ces, d efenda nt, t hrough counsel, filedNo. 2--07--0293

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anamended postconviction petition on November 30, 2006. The trial court dismissed the petition as frivolous and patently w ithout merit on February

21, 2007. Defendant

appeals the trial court's decision. He rea sons that s ince this was a capital case at the time the initial postconviction petition was filed, there was n ever a period during which the summary dismissal provision of

the Act applied. See 725 IL CS 5/122--2.1(a) (West 2006). Further,

even if the case is deemed to be a n oncapital case due to the commutation of his sentence, the p etition had already

been pending for more than 90 day s at the time the cour

t dismissed

it

. Dispositive of defendant's arg ument is whe ther the filing of the amended petition trigg ered a new 90-day period du ring wh ich the c ourt coul d summaril y di smiss his pe

tition. We ho ld that it di d not. Before turning to the substance of defend ant's c onten tion s, we w ill a ddres s the S tate's argument that defendant waived any objectionto the trial court summarily dismissing his petition. Specifically, the State invokes the invited-error doctrine. See, e.g. , People v. Lopez , 187 Ill. App. 3d 999, 1007 (1989). It points out that defendant caused the lengthy

delay in this case by

seeking

a myr ia d of continuances before amending his petition. But for these continuances, the Stat e

reasons , the trial court would have had an opportunity to dismiss the petition summarily

. The St ate's waiver argume nt break s down, how ever, be cause, a s we expla in in mo re detail below, when defendant filed his original petition, this was a capital case. Theref ore, the petition was never subject to summa

ry dismissal. Any delay

caused by de fendant did not cause the trial court to lose an opportunity to dismiss the petition. Hence, th e questi on befor e us is whe

ther the trial cou rt had the

authority

to dismiss defend ant's a me nded petition. The Act establishes a three-stage procedure for adjudicating postconviction petitions. Peopl e v. Cu mmin gs , 375 Ill. App. 3d 513, 516 (2007). I n the first stage,No. 2--07--0293

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"the circuit c ourt dete

rmines wh ether de fendant's a llegations sufficie ntly demonstr

ate a constit

utional violation that would

necessi tate rel ief, and

the cour t may summarily

dismiss a petition upon finding that it is frivolous or patently witho ut merit." Cumm ings , 375 I ll. App. 3d at 516; se e also 725 IL CS 5/122--2.1(a)(2) (West 2006). In a noncapital ca se, if the petition is not dismissed in the first stage, the court may appoint counse l for an indigent defendant, counsel may amend the pe

tition, and the State may move to dismiss the petition. People v. Rish , 344 Ill. App. 3d 1105, 1110 (2003). I n the third stage, the court conducts an evidentiary hearing and considers the merits of the petition. People v. Starks , 365 Ill. App. 3d 592, 598 (2006). In a capital c ase, there is no provision for a stage-one dismissal of a peti

tion as fr ivolous or patently without me

rit. See 7 25 IL

CS 5/122-- 2.1(a)( 1) (West 2006). In essence, since

there is no stage one in a capital case , the petition is automatically docketed for fur ther pro ceeding s. See 725 IL CS 5/122–2.1(a), (b) (West 2006). Because this was a capital

c ase when defendant first sought postconviction relief, there was never a time when defenda nt' s petition could have been dismissed summarily by the trial court. This straightforward application of the pr ovisions of

the Act normally

would be e

nough to resolve this appe al. The State, however, raises an additional argume nt we must consider

. It contends that the

s ubsequ ent

commutation of defendant's sentence couple d with the filing of an amended petition created a new win

dow in whic

h the cas e could be

summarily

dismissed. A number of cases touch upon this issue. The First District case of People v. S m ith , 312 I ll. App. 3d 219 (2000 ), share s a number of similarities with this case, but also has one important difference. I n Smith , the defendant filed a postcon viction pe tition while

under a sentence of

death. Su

bsequen tly, the I llinois Supr

eme Court, on direc t appeal , vacate d the def endant' s death

sentence. People v. Smith , 177 Ill. 2d 53, 101 (1997). The tria

l court the

n summaril

y di smissed the

defenda nt's post convic tion pet ition. TheNo. 2--07--0293

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petition was dismissed more than 90 days afte

r it was filed. The State

argue d that whe

n the supr eme court vacated the defendant's sente nce of death, it restored the trial cou rt's power to

summarily dismiss the petition and created a new 90-day period in which the petition could be dismissed. The Smith court rejected this argument, explaining that "Illinois case law provide s that the statutory time limit of 90 days is mandatory [citation] and begins to run upon the 'filing and docketing of each petition' [citati on]. There ar e no excepti ons to thi s rule." Smith , 312 Ill. App. 3 d at 223. It then held that "any action taken by the

trial court pursuant to section 122--2.1(a) of the Post-Conviction Hearing Ac t m us t b e t ak en '[ w] it hi n 9 0 d ays after the fil ing and docket ing of each peti tion.' " Smith , 312 Ill. App. 3d at 224, quoting 725 I LCS 5/122--2.1(a) (West 1996). Smith teaches us that the mere fact that defe ndant's death sentence was commuted d id not create a new 90- day

period in which the

trial cou rt could d ismis s defendant's petition. However, Smith differs from this c ase in tha

t it did not involve an amended petition. Thus, we must consider whether the filing of the am ended pe

tition her e somehow

leads to a

differe nt result. It is tr ue that f ilin g an amen ded pe titi on dur ing st age one o f post convi ction procee dings

causes a new 90-day

period to run from the time of the filing. In People v. Watson , 187 I ll. 2d 448, 451 (1999), o

ur supre me court held, "w hen a de fendant

who has f

iled an or iginal p ost- c onviction petition subsequently files an a mended petition, the 90-day pe riod in which the court must examine the defendant's petition and enter an orde r thereon is to be calculated from the filing of the amended petition." The Watson cou rt was concer ned with what it termed the "unreasonableness" of the defendant's position:

" After request ing and receiving lea

ve to ame nd his orig

inal petit ion, defe ndant mailed th e amended petition on the eighty-e ighth day of t he origina l peri od. Un der def endan t'sNo. 2--07--0293

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suggestion, th e c ir cu it co ur t w ou ld th en ha ve ha d o nl y tw o d ays to consider the merits of the amended petition. S uch a tru

ncated t ime fram e to consi der the p etition wo uld be both inadequate and unfair. Such a ru le could work only

to the det

riment of all, inclu ding both defendants an d prosecuto rs." Watson , 187 Ill. 2d at 451. Watson 's holding would seem to support the State's position. However, in People v. Harris , 224 Ill. 2d 115, 130 (2007), the court qualifi ed Watson , explaining that "in Watson the amended petition was filed before the initial 90-day period expired." It continued, "In other words, during the initial 90-day period, the pet ition was repl aced by a new petition, and the 90 -day period began anew." Harris , 224 Ill. 2d at 130. The court then noted, "[t]here is no provi sion in

the Act allowing the trial court to delay the beginning of the 90-day period when a petiti on is pendi ng before it." Harris , 224 I ll. 2d at 13 0. There fore, th e rule se t forth in Watson , that the f

iling of an amend

ed petition causes

a new 90- day

period to run, app lies only

while postconviction proceedings are still in the first stage. Indeed, in People v. Volkmar , 363 I ll. App. 3d 668, 672 (2006), the Fifth District discussed Watson and

concluded, "We do not believe that Watson stands fo r the pro position tha

t any time an amended petition is

filed, the 90-day time peri od for sum

mary dismissal s tarts ane

w." (Em phasis inorigina l.) Rathe r, the co urt state d, "[W]e bel ieve tha t once co unsel has b een appoi nted, any dismissal of the petition should be by adversary process , based o n a motion to dismiss filed by the prosecutor, and not done sua sponte and summarily by

the circuit court." Volkmar , 363 Ill. App. 3d at 673. We find the court's reasons for taking this position persuasive. The Volkmar

court based

its decision upon the purpo ses behin d the proc edures s et forth i n section122--2.1 of the Act (725 IL CS 5/122--2.1 (West 1996)). It first explained the purpose behindNo. 2--07--0293

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the summary dismissal provision, which is to "deter the f iling of frivo lous pro sepetitions and save both the court and the prosecutor from having to e xpend time andresources on t hem." Volkmar , 363 Ill. App. 3d at 672-73. Once procee dings pa ss to the second stage--when counsel is appointed- - there is no need f

or such f rivolity review, inthat "[i] t mus t be as sumed that c ounse l, who by signin g a pleading certifies pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137) that it is well-g rounded infact and in law and

is not interposed for an improper purpose, will not fil e a friv olous or pa tently unmeritorious petition ." Volkmar , 363 Ill. App. 3d at 673. A lso , counse l, unlike a lay person, i s bound by Rule 3.3 of the I

llinois Rules of Professional Conduct, w hich provides that "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the re is a ba sis for doing so that is not frivolous." 134 Ill. 2d R. 3.3. Furthermor e, the Volkmar

court also noted

that allowing a new 90-day

period in which a petition could be dismissed wo uld enta il a potential consequence that the legislature likely did not intend: "To allow the summary dismissal of a petition that has been amended by c ounsel might deter counsel from making any amendment, for fear that it would mak

e the pet ition vulne

rable to a sua sponte

summary dismissal by

the circuit court." Volkmar , 363 Ill. App. 3d at 672. Insum, we agree with the Volkmar court. The presence of coun sel once a defen dant ge ts beyond that first stage of postconvi c tion proceedings obviates the need for judicial re view for fr iv ol it y. Hence, there is no reason to revive the pe ri od in wh ich the pe

tition coul d be summa

rily dismissed. The State

points out that, in

this case , counse l was app ointed be cause of the deat h sentence. We do not see the relevance of the reason for the appointment. Counsel is always bound by Supreme C ourt Rule 1 37 (155 I ll. 2d R. 137), and that is a sufficient safeguar d against the filing of a frivolous or patently

meritless petition.No. 2--07--0293

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The State poin

ts briefl y to People v. Lara , 317 I ll. App. 3d 905, 907 ( 2000), in s

upport of its position. Lara , however, did not involve a summary dismissal of a postconviction petition. Lara , 317 Ill. App. 3d at

908. Ne verthel ess, it did r estate th e rule f

rom Watson : "A summary dismissal entered more than

90 days afte

r the petition was filed is void, unless the defendant requested leave to amend within the period for

the trial court's first-stage re view ." (Emphasis added.) Lara , 317 I ll. App. 3d at 907. Hence, Lara does not help the State. Finally, the

State asserts that "there would be no practica l value to r

emanding this caus e to the trial court

for further proceedings, a s the trial court would likely then dismiss the petition upon

a motion by the People." I n essence, this is a harmless-error arg ument; however, the State cites no authority indicating that the error committed by the trial court in th

is case is amena ble to a harmlesserror analysis. Acc ordingly, this contention is waived. People v. Acevedo , 191 I ll. App. 3d 364, 366 (1989). Before closing, we emphasize that the foregoing discussion is not intended to supplant any of the brig ht-line r ules set f orth in the Act. I n accor dance w ith the Act's provisions, a

trial court may dismiss a petition as frivolous or patently without merit during stage one and not there after , regar dless of wheth er couns el is involv ed in the c ase. Tho ugh it is typically

the case that

counsel i s notinvolved d

uring st age-one proce edings a

nd is involv ed there after, the rule remai ns as it has al wa ys been sta

ted in the Act. We int

ended on ly to examine the State's argument reg arding revival of a 9 0- da y summary

dismissal period in the context of the policies that the mechanics of the Act

serve. Ac co rd in gl y, we gra nt defen dant's m o tion for summary rema nd. We vacate the order dismissing

defenda nt's post convicti on petition

and rema nd this ca use for f urther proceed

ings.No. 2--07--0293

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Vacated and remanded. CALL UM, J., conc

urs. JUS TICE O'MA LLEY, speci ally conc urrin g: Iwrite separately

because I disag

ree with the majority's de cision to adopt the flawed reasoningexpressed in Volkmar . As the majority notes, Volkmar states that postconviction petitions should not be summ arily

dismisse d at the second stage because, once a petition has reached the second stage and counsel has been appointed, frivolity

review would be re dundant w ith the man

date fromRule 137 that counsel certify that filed pleadings are well gr ounded in fact and law. Slip op. at 5-6; see Volkmar , 363 Ill. App. 3d at 672-73. Th us, according to Volkmar , " once counsel has been appointed , any dismissal of the p etition should be by adversar y process, *** not done sua sponte and summarily by

the circuit court." (Emphasis added.) Volkmar , 363 I ll. App. 3d at 773. This is wrong . Contrar

y to th e reaso ning i n Volkmar , the cir cuit cour t's powe r to dismiss

a postconviction petition su mmarily does not hi

nge on t he questi on of whe

ther cou nse l has been app ointed; it hi nges on the status of the petition. Quite simply, a petition in the first stage of postconviction procee dings may be dismissed summarily ; a petition thathas adva nced pa st the fir st stage may not be dismissed summarily. Volkmar 's erroneous reliance on the presen ce of counsel suggests at lea st two results that contravene the Act. First, under Volkmar , a petition filed by reta ined counsel at

the fi rst st age could notbe dismisse d summaril y a t the firs t stage , becau se the pe tition woul d bear th e certif icati on of counsel pursuant to Rule 137. Second , if a defendant were to elect to proc eed pro se after his petition survived first stage review, Volkmar would allow the tria

l court to d

ismiss his pe

titio n summarily

at either stage two or stage three, because the petition would lack the certific ation ofNo. 2--07--0293

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counsel pursuant to Rule 137. The basis for Volkmar 's reasoning is that, once counsel has been retained or appointed, the certification

require ments of Ru

le 137 apply, and a c ourt will thereby have the necessary

assurance that a petition is not frivolous. However, Rule 137 does not govern only attorneys. I

t provides that "[a] party who is not

represented by

an attorney sha

ll sign his pleading ***. *** The signature of an attorney or party

constitutes a certi ficat e by him t hat ** * [th e plead ing] is well grounded in fact and is warranted by

existing law." (Emphasis added.) 1 55 Ill. 2d R. 137. Thus, Rule 137 does not supply any basis to distinguish pro sepetitions from those filed with the assistance of counsel, and Volkmar 's reliance on it is misplaced. The majority deem s Volkmar 's r easo ning "persua sive" (slip

op. a t 5), d ecla res t hat it "ag ree[ s ] with the Volkmar

court" (slip op. at

6), and echoes the sentiment from Volkmar that "[t]he presence of counsel once a defendant ge ts beyond [the] first stage *** obviates the need for judicial review for frivolity" (slip op. at 6). The majority follows these endorse ments of Volkmar

with the hollow

assurance that its dis cussion " is not intended to supplant any of the brig ht-line rules set forth in the Act" and the in

congr uous (alb eit corr

ect) ex planation that "a trial court may dismiss a petition as frivolous or paten

tly without me

rit during stage one and not therea fter, regardless of whethe

r counsel is involved in the cas e." Slip op. at 7. These statements, which appear as a n afterthought in the penul tima te para graph o f the m ajori ty opini on, fa ll fl at in l ight o f the m ajori ty's actua l reas onin g. Inmy view, the majority should re ly o n the Act, not Volkmar , to reach the result that defendant's petition should be remanded for sec ond-stage postconviction proceedings.