Opinion
No. 1-10-2539
04-19-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMMIE MARTIN, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 07 CR 14194
Honorable
John T. Doody,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Hall and Reyes concurred in the judgment.
ORDER
¶ 1 Held: Order denying defendant's successive petition for post-conviction relief affirmed over defendant's contention that the trial court erred in failing to treat this petition as a motion to reconsider the dismissal of his initial post-conviction petition. ¶ 2 Defendant Timmie Martin appeals from an order of the circuit court of Cook County denying his successive petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). On appeal, defendant maintains that his pleading should have been treated as a motion to reconsider the dismissal of his initial post-conviction petition and not as a successive post-conviction petition. He further maintains that he set forth in his petition the gist of a constitutional claim of ineffective assistance of trial counsel and the denial of his right to testify. ¶ 3 This court previously affirmed defendant's 2008 jury conviction for possession of a controlled substance with intent to deliver and sentence of seven years' imprisonment. People v. Martin, No. 1-08-1973 (2009) (unpublished order under Supreme Court Rule 23). Thereafter, on May 12, 2010, defendant filed a pro se petition for post-conviction relief alleging that he was "framed" by police. He further alleged that his trial counsel was ineffective for not contacting or calling certain witnesses, and for advising him not to testify, but telling him that if he did, he would not be believed and that the State would introduce his criminal background including charges and other arrests. ¶ 4 The circuit court dismissed the petition as frivolous and patently without merit on June 22, 2010. In doing so, the court found that defendant did not set forth any objective facts or provide any support for his claims. The court further found that defendant's ineffective assistance of trial counsel claim could have been raised on direct appeal, and therefore, was waived. Notwithstanding, the court also found that defendant's claim of ineffective assistance of trial counsel failed on the merits. Notice of this decision was sent to defendant on June 29, 2010. ¶ 5 Defendant also filed the instant pro se petition entitled, "Petition Requesting For Post Conviction Relief," pursuant to section 122-1 of the Act (725 ILCS 5/122-1 (West 2010)). The petition is file stamped July 27, 2010, and has attached thereto a "proof/certificate of service," in which defendant indicates that he placed the petition in the prison mail system on May 12, 2010. However, in the verification portion of this form, defendant set forth two dates: May 12, 2010, and July 15, 2010. ¶ 6 Substantively, defendant alleged that his appellate counsel was ineffective for failing to raise the issue of ineffective assistance of trial counsel on direct appeal based on counsel's failure to investigate and call certain witnesses who would have corroborated his claim that he was falsely accused. Defendant also requested the court to vacate the judgment entered against him on May 7, 2008, and grant him a new trial, or, in the alternative, grant him an evidentiary hearing where he could present evidence establishing a substantial denial of his constitutional right to effective assistance of counsel. ¶ 7 The circuit court dismissed the petition in a written order. In doing so, the court noted that defendant's petition was a successive post-conviction petition, and that he failed to satisfy the cause and prejudice test. The court also explained that defendant relied on factual assertions that were available to him at the time he filed his initial petition, that he failed to identify any objective factor which prevented him from raising his current claim in the prior post-conviction petition, and that the omission of his claim from the initial post-conviction proceedings did not affect his due process rights then or at trial. The court further found that defendant's arguments were unsubstantiated and conclusive. ¶ 8 In this appeal from that ruling, defendant contends that the trial court erred in treating his second pleading as a successive post-conviction petition when it was, "in substance," a motion to reconsider the dismissal of his initial post-conviction petition. As evidence, he points to the fact he filed the motion within 30 days of the trial court's order dismissing his post-conviction petition, and realleged his ineffective assistance of trial counsel claim in a way that was responsive to the trial court's dismissal of his initial petition. Our review is de novo. People v. Tidwell, 236 Ill. 2d 150, 156 (2010). ¶ 9 The Act provides a procedural mechanism in which a person convicted of a crime may assert the substantial denial of his constitutional rights in the proceedings which resulted in his conviction. 725 ILCS 5/122-1(a) (West 2010); People v. Harris, 224 Ill. 2d 115, 124 (2007). A proceeding is commenced by filing a petition with the clerk of the court in which the conviction took place. 725 ILCS 5/122-1(b) (West 2010). The Act further provides, in pertinent part, that:
"[a] person seeking relief by filing a petition under this Section must specify in the petition or its heading that it is filed under this Section. A trial court that has received a petition complaining of a conviction or sentence that fails to specify in the petition or its heading that it is filed under this Section need not evaluate the petition to determine whether it could otherwise have stated some grounds for relief under this Article." 725 ILCS 5/122-1(d) (West 2010).¶ 10 In this case defendant labeled his pleading, "Petition Requesting For Post Conviction Relief," and, in accordance with the statute, the trial court treated the petition as specified, albeit as a successive petition given defendant's prior filing. 725 ILCS 5/122-1(f) (West 2010). Under well-settled Illinois law, a court may look further than the title of a petition, and recharacterize it, but is not required to do so. People ex rel. Palmer v. Twomey, 53 Ill. 2d 479, 482 (1973). This principle was recognized once again in People v. Shellstrom, 216 Ill. 2d 45, 53, n.1 (2005), where the supreme court noted that a circuit court "may" treat a pleading as a post-conviction petition even where it is labeled differently, but that it is not required to do so. Thus, the circuit court in this case was not required to evaluate the petition to determine whether defendant was seeking some other form of relief, and did not err in considering defendant's pleading as presented. ¶ 11 Defendant, nonetheless, maintains that his failure to file a separate motion requesting leave to file a successive petition or allege any facts establishing cause and prejudice showed that he did not intend the pleading to be a successive petition. We observe, however, that defendant is not required to file a separate motion requesting leave, but may do so in the actual petition, and that the circuit court may perform the review called for by section 122-1(f) of the Act even though defendant does not attempt to satisfy the cause and prejudice test. Tidwell, 236 Ill. 2d at 161-62, and cases cited therein. It thus follows that defendant's omission in this regard does not necessarily lead to the conclusion that the pleading was a motion to reconsider, rather than a successive petition. ¶ 12 Notwithstanding, defendant maintains that we should look beyond the label of the petition, and at its substance, which, he contends, showed that it was filed within 30 days of the initial post-conviction petition, and dated May 12, 2010, thus evincing his intent that the petition relate back to his initial petition. Even with a liberal reading of the substance of the pro se petition, as requested by defendant, it is clear that his pleading was not a motion to reconsider. ¶ 13 In a post-conviction petition defendant requests the court to decide whether his constitutional rights were violated at trial. People v. Pinkonsly, 207 Ill. 2d 555, 566 (2003); 725 ILCS 5/122-1(a) (West 2010). Through a motion to reconsider, which defendant may file from the dismissal of his post-conviction petition (People v. Blair, 215 Ill. 2d 427, 451 (2005)), defendant requests the court to modify or vacate the judgment entered (735 ILCS 5/2-1203 (West 2010)). The purpose of a motion to reconsider is to provide the court with newly discovered evidence, changes in the law, or errors in the court's previous application of existing law. People v. Teran, 376 Ill. App. 3d 1, 4-5 (2007); General Motors Acceptance Corp. v. Stoval, 374 Ill. App. 3d 1064, 1078 (2007). ¶ 14 Here, defendant did not present any newly discovered evidence in his petition, nor changes in the law, or errors in the court's application of the law. General Motors Acceptance Corp., 374 Ill. App. 3d at 1078. In the body of the motion, defendant did not refer to the initial petition or request the circuit court to reconsider its dismissal of the initial petition; rather, defendant specifically requested the circuit court to vacate the judgment entered on May 7, 2008, which was the date the jury found him guilty, and to grant him a new trial based on the deprivation of his constitutional rights, which clearly indicates that the petition was, as labeled, a post-conviction petition. People v. Shipp, 375 Ill. App. 3d 829, 832 (2007). ¶ 15 In addition, a motion to reconsider must be filed within 30 days of the contested judgment. People v. Dominguez, 366 Ill. App. 3d 468, 472 (2006). In this case, defendant's proof/certificate of service for the petition in question indicates that defendant placed it in the prison mail system on May 12, 2010. This was the same date he maintained that he placed his initial post-conviction petition in the prison mail system. If we were to accept the alleged May 12, 2010, date as the date of mailing, the petition clearly could not be a motion to reconsider, as the initial petition was not dismissed until June 22, 2010. We further observe that defendant dated the petition at bar as May 12, 2010, and July 15, 2010, thereby adding further confusion to the actual date of mailing. ¶ 16 We also find defendant's reliance on People v. Scullark, 325 Ill. App. 3d 876 (2001) and People v. Easley, 199 Ill. App. 3d 179 (1990), misplaced. In Scullark, defendant filed a motion to reconsider the summary dismissal of his post-conviction petition alleging that the untimely filing was not due to his culpable negligence, and the circuit court denied the motion. Scullark, 325 Ill. App. 3d at 878. On appeal, this court found that defendant must be allowed to amend his petition to allege lack of culpable negligence, explaining that defendant should not be deprived of his ability to pursue post-conviction relief simply because he incorrectly labeled his motion. Scullark, 325 Ill. App. 3d 879-82. Here, unlike Scullark, defendant did not refer to the dismissal of his post-conviction petition which was entered in June 2010, but, rather, specifically referred to the judgment entered against him in May 2008. Defendant was also not deprived of his ability to pursue post-conviction relief where he clearly filed an initial post-conviction petition and then a successive petition in which he alleged a new claim, i.e., ineffective assistance of appellate counsel. ¶ 17 In Easley, a guilty plea case, defendant was sentenced on May 16, 1989, and filed a motion to reduce his sentence which was struck based on untimeliness. Easley, 199 Ill. App. 3d at 181. Defendant then mailed a letter to the circuit court in which he claimed that he had an excuse for the untimely filing, and the court treated the letter as a motion to reconsider its striking of the motion to reduce sentence, and dismissed it. Easley, 199 Ill. App. 3d at 181. On appeal, the reviewing court found that defendant's notice of appeal was "timely" pursuant to Rule 606(c) (eff. Mar. 20, 2009) despite the fact that his motion to reconsider did not toll the time for filing a notice of appeal, then held that the motion to reduce sentence was timely based on the date of mailing, and remanded the cause for the circuit court to rule on the motion to reduce sentence. Easley, 199 Ill. App. 3d at 182-85. Here, unlike Easley, defendant's motion sought relief from the date the jury found him guilty and not the date of the denial of his prior petition. Morever, the motion could not be a motion to reconsider if it was mailed the same date the prior petition was mailed, i.e., May 12, 2010 (Dominguez, 366 Ill. App. 3d at 472), was entitled as a post-conviction petition (Palmer, 53 Ill. 2d at 482), and raised a new issue, namely, ineffective assistance of appellate counsel. ¶ 18 For the reasons stated, we conclude that the circuit court did not err in denying defendant leave to file a successive post-conviction petition (725 ILCS 5/122-1(f) (West 2010)), and affirm the order of the circuit court of Cook County to that effect. ¶ 19 Affirmed.