Docket No. 88126–Agenda 3–November 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 

 WALTER L. THOMAS, Appellant.

Opinion filed January 19, 2001.

	JUSTICE MILLER delivered the opinion of the court:

	The defendant, Walter L. Thomas, brings this appeal from an

order of the circuit court of Du  Page County dismissing, without

an evidentiary hearing, his petition for post-conviction relief.

Because the defendant received the death penalty for the

underlying murder conviction, the defendant'’s appeal lies directly

to this court. 134 Ill. 2d R. 651(a). For the reasons that follow, we

reverse the judgment of the circuit court and remand the cause to

that court for further proceedings.

	The defendant was convicted of murder and other offenses and

was sentenced to death following a jury trial in the circuit court of

Du  Page County. On direct appeal, this court affirmed the

defendant'’s convictions and death sentence. People v. Thomas, 137 Ill. 2d 500 (1990). The United States Supreme Court denied the

defendant'’s petition for a writ of certiorari. Thomas v. Illinois,, 498 U.S. 1127, 112 L. Ed. 2d 1196, 111 S. Ct. 1092 (1991). The

defendant then sought post-conviction relief in the circuit court of

Du  Page County. The circuit court dismissed the petition, and this

court affirmed the dismissal. People v. Thomas, 164 Ill. 2d 410 (1995). The defendant later initiated habeas corpus  proceedings in federal court. The district court denied the defendant'’s petition,

and the court of appeals affirmed that order. Thomas v. Gilmore, 144 F.3d 513 (7th Cir. 1998). The United States Supreme Court

later denied the defendant'’s petition for a writ of certiorari. Thomas v. Gilmore, ___525 U.S. ___1123, 142 L. Ed. 2d 905, ___119 S. Ct. ___907 (1999).

	The defendant then brought the present action for post-

conviction relief, filing another petition in the circuit court of

Du

 Page County in April 1999. Appearing pro se, the defendant filed a motion to proceed in forma pauperis and submitted an affidavit of indigence. Without appointing counsel, and in the

absence of any responsive pleading by the State, the circuit judge summarily dismissed the defendant'’s petition. The defendant brings

this appeal. 134 Ill. 2d R. 651(a).

	The defendant first argues that the circuit court erred in failing

to inquire whether he wanted counsel appointed to represent him

in this matter. The State has confessed error on this issue, and we

agree that the circuit court erred in failing to determine whether the

defendant wished to be represented by counsel and, if he did, in

failing to make the appointment. The Post-Conviction Hearing Act

(725 ILCS 5/122–--1 through 122–--7 (West 1998)) contains special

procedures that are applicable in capital cases. Section

122–--2.1(a)(1) of the Act provides:

				"““If the petitioner is under sentence of death and is

without counsel and alleges that he is without means to

procure counsel, he shall state whether or not he wishes

counsel to be appointed to represent him. If appointment

of counsel is so requested, the court shall appoint counsel

if satisfied that the petitioner has no means to procure

counsel."”” 725 ILCS 5/122–--2.1(a)(1) (West 1998).

For noncapital defendants, in contrast, the Act requires the

appointment of counsel only if the court first determines that the

petition is not "“frivolous or *** patently without merit."” 725 ILCS

5/122–--2.1(a)(2) (West 1998).

	In the present case, the defendant is under sentence of death.

Although the defendant was appearing pro se and was seeking to proceed in forma pauperis, the circuit judge did not determine whether the defendant wanted to be represented by counsel, as the

judge was required to do in capital cases under section

122–--2.1(a)(1) of the Act. Accordingly, the cause must be

remanded to the circuit court so that the defendant may be

provided with appointed counsel, if that is his choice. See People v. Dye, 50 Ill. 2d 49 (1971).

	The defendant also contends that the post-conviction court

erred in summarily dismissing his petition without first receiving a

responsive pleading from the State. The State has correctly

confessed error on this issue also. Again, the Post-Conviction

Hearing Act contains different procedures for capital petitioners

and non-capital petitioners. In a non-capital case, the post-conviction court may summarily dismiss the petition if the court judge decides

that it is "“frivolous or *** patently without merit."” If the judge

does not dismiss the petition, then the matter will be docketed for

further consideration in accordance with other provisions of the

Act.

	Post-conviction petitions filed by capital defendants are

handled differently. There is no provision authorizing the circuit

court to dismiss the petition of a capital defendant if it is "“frivolous

or *** patently without merit."” As noted above, the court must

first determine whether the petitioner, if indigent, wants to be

represented by counsel. After the petitioner makes that choice, the

matter is then docketed for further proceedings. 725 ILCS

5/122–--2.1(b ) (West 1998). At that juncture the State may either

answer the petition or move to dismiss it. 725 ILCS 5/122–--5 (West

1998).

	The circuit judge in the present case did not follow the

procedure applicable to capital cases. Instead, she examined the

contents of the petition and determined on her own that the matters

raised by the defendant were without merit. That inquiry is

appropriate only when the post-conviction petitioner has been

sentenced to imprisonment. This was a capital case, however, and

the judge could not rule on the defendant'’s petition without first

receiving a responsive pleading from the State. Cf. People v. Brisbon, 164 Ill. 2d 236 (1995) (responsive pleading not required when State had previously moved to dismiss earlier post-conviction

petition).

	The defendant raises two other issues in this appeal. He argues

that the post-conviction judge erred in dismissing the petition

without first providing notice to the defendant that she was going

to enter a dispositive ruling on that date, which she had earlier said

would be for a status hearing. The defendant also argues that,

before dismissing the petition, the judge failed to consider the

defendant'’s request for forensic testing of certain evidence, as

authorized by section 116–--3 of the Code of Criminal Procedure of

1963 (725 ILCS 5/116–--3 (West 1998)). Given our resolution of

the first two issues in this appeal, it is not necessary for us to

address these additional questions at this time. It appears that these

matters grew out of the judge'’s treatment of the case as a non-capital matter and summary disposition of the petition, and thus

are unlikely to recur on remand. Finally, we note that this is the

defendant'’s second post-conviction action. We express no view

here regarding the propriety of a successive post-conviction

petition in these circumstances.

	For the reasons stated, the judgment of the circuit court of

Du

 Page County is reversed, and the cause is remanded to that

court for further proceedings.

											Reversed and remanded.