Opinion filed December 19, 2016 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2016

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Rock Island County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-14-0586 v. ) Circuit No. 06-CF-696

)

JASON J. THOMPSON, ) Honorable

) F. Michael Meersman, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE McDADE delivered the judgment of the court, with opinion. Justices Lytton and Wright concurred in the judgment and opinion. _____________________________________________________________________________

OPINION

¶1 Defendant, Jason J. Thompson, appeals the denial of his postconviction petition at the

second stage of proceedings. Defendant contends that the trial court erred in denying his petition

without holding an evidentiary hearing. We reverse and remand for a third-stage evidentiary

hearing.

¶ 2 FACTS

¶3 Following a stipulated bench trial, defendant was found guilty of two counts of first

degree murder (720 ILCS 5/9-1(a)(2), (a)(3) (West 2006)). The trial court sentenced defendant to 60 years’ imprisonment. At the sentencing hearing, the trial court indicated that the two counts

would merge into one conviction. However, the written sentencing order stated that defendant

was sentenced to 60 years’ imprisonment on each count of first degree murder, to be served

concurrently. On direct appeal, we affirmed defendant’s conviction. People v. Thompson, No. 3­

08-0132 (2009) (unpublished order under Supreme Court Rule 23).

¶4 Defendant filed a pro se postconviction petition. The petition argued that defendant’s

arrest was void and his subsequent statements to the police should have been suppressed because

he was arrested without a warrant and held for an unduly long period of time before his probable

cause hearing. The trial court found that defendant’s pro se petition presented the gist of a

constitutional claim and ordered that the petition be docketed for further postconviction

proceedings.

¶5 Defendant filed a pro se “Supplemented Post-Conviction Petition” arguing that “Illinois

Revised Statutes, Ch38 [sic], sec. 109-1(a)” was unconstitutional and void because it provided no

legal remedy for a violation of fourth amendment rights.

¶6 Defendant then filed an amended postconviction petition through counsel. The petition

argued that defendant received ineffective assistance of trial and appellate counsel. Specifically,

the petition argued that defendant’s due process rights were violated when (1) two first degree

murder judgments were entered against him for the murder of the same individual and (2) the

sentencing judge “based his sentencing on his personal belief that people like the defendant don’t

deserve mercy from the court and *** are a real threat to society.” The amended petition also

argued that appellate counsel was ineffective for failing to raise these issues. The amended

petition also sought “incorporation of the arguments contained within and the Affidavits attached

to [defendant’s] pro se Petition for Post-Conviction Relief.”

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¶7 Defendant then filed a pro se “Motion for Leave to File Supplemental Claims in the

Currently Pending Amended Post-Conviction Petition.” The motion alleged that postconviction

counsel failed to include several claims in the amended petition that defendant believed to be

meritorious. Defendant argued that he should be able to present all of his postconviction claims

to the court even if his postconviction counsel did not “agree” with all of his claims.

¶8 Defendant also filed a pro se “Supplemental Amended Post-Conviction Petition.” The

supplemental petition argued that (1) trial counsel was ineffective for failing to raise various

objections to the photographic lineups at the suppression hearing, (2) trial counsel was

ineffective for failing to raise a meritorious fourth amendment claim based on defendant being

held by the police for an unduly long period of time before he was taken before a judge for a

probable cause hearing, and (3) section 109-1(a) of the Code of Criminal Procedure of 1963 (725

ILCS 5/109-1(a) (West 2006)), which provided that a person arrested for a crime shall be taken

“without unnecessary delay before the nearest and most accessible judge in that county,” was

unconstitutional in that it was vague and ambiguous and provided no remedy for noncompliance.

¶9 On September 27, 2013, the trial court held a “second stage hearing.” The trial court

stated that it had read the trial transcript, the file, the amended postconviction petition filed

through counsel, and defendant’s various pro se filings. The trial court said it would consider

defendant’s pro se supplemental claims even though postconviction counsel did not adopt them.

Both postconviction counsel and the assistant State’s Attorney stated that they did not wish to

present any evidence.

¶ 10 After hearing arguments, the trial court dismissed the amended petition. The trial court

found that only one conviction for first degree murder had been entered and that the sentencing

judge did not err in sentencing defendant to 60 years’ imprisonment. The trial court also denied

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relief based on defendant’s pro se supplemental claims. Postconviction counsel filed a notice of

appeal on behalf of defendant.

¶ 11 Defendant filed a pro se motion to reconsider. The motion alleged that postconviction

counsel filed a notice of appeal without consulting defendant. The motion argued that the trial

court erred in dismissing the postconviction petition because the State had not answered the

petition or filed a motion to dismiss.

¶ 12 We dismissed defendant’s appeal and ordered the trial court to rule on defendant’s

motion to reconsider. People v. Thompson, No. 3-13-0735 (Nov. 18, 2013) (dispositional order).

¶ 13 A hearing was held following our dismissal of the appeal. Postconviction counsel stood

on the grounds for reconsideration in the pro se motion to reconsider. The State argued that

“[a]ny potential penalties for the State’s failure to file [an answer or a motion to dismiss] does

not include granting the petition.” Ultimately, the trial court ordered the State to file an answer or

a motion to dismiss.

¶ 14 On June 5, 2014, the State filed an answer to the amended petition filed by counsel. The

answer admitted the allegations contained in the postconviction petition. The answer stated that

the court entered judgment on one count of first degree murder but the judgment order

erroneously showed two convictions and sentences for first degree murder. The answer stated

that this was a “typographical error” and that the conviction and sentence on the second count of

first degree murder should be vacated. Regarding the allegations in the petition that the

sentencing judge based the sentence on improper factors, the answer stated as follows:

“Respondent admits that the sentencing court made the comment alleged, but that

must be considered in the context of the case. In the evidence, the Court heard

that Petitioner confessed to police the day after shooting that he shot the victim

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solely to steal the victim’s cannabis and money. He also admitted there was no

provocation for the shooting other than the robbery. Taken in context the Court’s

statement is and was reasonable and based upon the evidence.”

¶ 15 A hearing was held after the State filed its answer. The trial court indicated that the

hearing was “in relation to a motion to reconsider my dismissal of [defendant’s] second-stage

post-conviction petition.” The trial court ruled as follows:

“I have reviewed the files again and gone over this. I’ve gone over the

motion to reconsider, the State’s answer, and, again, the Defendant and his

counsel both of their responses to the State’s motion. The State acknowledges that

they need to do a new sentencing order in relation showing that there’s only one

conviction for the First-Degree Murder.

The other matters, again, that I made my ruling back earlier as far as the

dismissal of the motion to reconsider or the reason I dismissed the post-conviction

petition, I haven’t changed my mind. I think I was right then. I think I’m right

now.

The State is to file a new sentencing order in relation to the First-Degree

Murder charge as far as Count 1 and Count 2 had merged into that. The rest of the

Defendant’s post-conviction allegations are denied, the motion to reconsider is

denied except for the change of the sentencing order.”

¶ 16 The trial court entered an amended judgment order showing that defendant was convicted

of only one count of first degree murder.

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¶ 17 ANALYSIS

¶ 18 Defendant contends that the dismissal of his postconviction petition at the second stage of

proceedings, without holding an evidentiary hearing, was improper because the State answered

the petition rather than filing a motion to dismiss. We agree. See People v. Pendleton,

(2006); People v. Volkmar,

(2006); People v. Andrews,

(2010); People v. Snow,

.

¶ 19 Our supreme court has described the procedure for the second and third stages of

postconviction proceedings as follows:

“At the second stage of postconviction proceedings, counsel may be

appointed for defendant, if defendant is indigent. [Citation.] ***

After counsel has made any necessary amendments to the petition, the

State may move to dismiss a petition or an amended petition pending before the

court. [Citation.] If that motion is denied, or if no motion to dismiss is filed, the

State must answer the petition, and, barring the allowance of further pleadings by

the court, the proceeding then advances to the third stage, a hearing wherein the

defendant may present evidence in support of the petition. [Citation.] Pendleton,

.

¶ 20 Here, the trial court advanced defendant’s postconviction petition to the second stage of

proceedings and appointed counsel. Counsel filed an amended petition. The trial court eventually

directed the State to file a motion to dismiss or an answer to the petition, and the State chose to

answer the petition. We hold that, because the State filed an answer rather than a motion to

dismiss, the trial court erred in dismissing the petition and should have advanced the petition to a

third-stage evidentiary hearing. See id.; Volkmar,

(holding that a

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dismissal can be granted only on the motion of the State at the second stage of postconviction

proceedings); Andrews,

(“If the trial court does not grant the State’s

motion to dismiss or if the State has filed an answer, the petition proceeds to the third stage,

where the defendant may present evidence in support of his petition.”); Snow,

(“If the State does not file a motion to dismiss or the court denies such a motion,

the petition advances to the third stage, wherein the court holds a hearing at which the defendant

may present evidence in support of his or her petition.”).

¶ 21 In reaching our holding, we reject the State’s argument that “established law” provides

that the trial court must make an independent determination at the second stage of proceedings as

to whether the petition makes a substantial showing of a constitutional violation regardless of

whether the State files a motion to dismiss. Stated another way, the State contends that it is of no

consequence that it filed an answer rather than a motion to dismiss because, in either scenario,

the trial court must determine whether the petition made a substantial showing of a constitutional

violation before advancing it to the third stage. In support of its argument, the State cites People

v. Edwards,

(2001): “At [the second] stage, the circuit court must determine

whether the petition and any accompanying documentation make a substantial showing of a

constitutional violation.” The State reads the foregoing statement too broadly. Instead, we find

that the statement merely describes the standard the trial court is to apply when ruling on a

second-stage motion to dismiss. See People v. Demitro,

(2010) (“To

withstand a second-stage motion to dismiss, the defendant must make a substantial showing that

his constitutional rights have been violated, taking all well-pled facts as true.”); see also People

v. Flowers,

.

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¶ 22 The State also points to People v. Gaultney,

(1996), in support of its

argument that the trial court must make an independent second-stage determination regarding

whether a postconviction petition makes a substantial showing of a constitutional violation.

Specifically, the State relies on the following sentence in Gaultney: “If the circuit court does not

dismiss or deny the petition [at the second stage of proceedings], the proceeding advances to the

third stage.”

The State contends that the only way the trial court could ever deny a petition at

the second stage of proceedings would be to “make some sort of finding.”

¶ 23 We note that Gaultney did not involve a trial court dismissing or denying a

postconviction petition at the second stage of proceedings for failing to make a substantial

showing of a constitutional violation absent a motion to dismiss. Rather, the issue in Gaultney

was the effect of the State filing a motion to dismiss at the first stage of proceedings rather than

the second stage.

. The State does not point to any cases in which a court actually held

that a postconviction petition was properly denied or dismissed at the second stage of

proceedings absent a motion to dismiss.

¶ 24 We reject the State’s contention that our holding “would completely negate the role of the

trial judge in the process” in that a postconviction petition would move forward to the third stage

“automatically” if the State did not file a motion to dismiss. There is nothing “automatic” about a

postconviction petition’s advancement to the third stage. Pursuant to section 122-5 of the Post-

Conviction Hearing Act (725 ILCS 5/122-5 (West 2014)), the State is free to file a motion to

dismiss at the second stage of proceedings if it would like the trial court to dismiss the petition

based on its insufficiency of the petition. If the State elects instead to answer the petition, the

State chooses to have the trial court resolve the issues raised in the postconviction petition

following an evidentiary hearing. Snow,

.

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¶ 25 We also reject the State’s argument that its answer was “part answer and part dismissal.”

The State’s argument ignores the fact that an answer and a motion to dismiss are categorically

different pleadings:

“An answer and a motion to dismiss, though, are by no means related. By

its answer, a party either admits or denies the allegations contained in the

complaint, thereby framing the issues to be resolved later by litigation. A motion

to dismiss, on the other hand, attacks the sufficiency of the complaint.” Tyler v.

J.C. Penney Co.,

(1986).

¶ 26 The State’s failure to concede the postconviction claim regarding the sentencing

comments within its answer does not somehow act to transform the answer into a motion to

dismiss. Simply put, the answer did not request that the court dismiss the amended petition nor

did it argue that the petition failed to make a substantial showing of a constitutional violation.

Rather, the effect of the answer’s denial of the sentencing comments claim was to frame the

scope of the dispute to be resolved at an evidentiary hearing.

¶ 27 CONCLUSION

¶ 28 The judgment of the circuit court of Rock Island County is reversed, and the cause is

remanded for a third-stage evidentiary hearing.

¶ 29 Reversed and remanded.

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