Digitally signed
by Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2022.07.29
10:21:38 -05'00'
People v. Weber, 2021 IL App (2d) 190841
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ANTHONY M. WEBER, Defendant-Appellant.
District & No. Second District
No. 2-19-0841
Filed June 24, 2021
Decision Under Appeal from the Circuit Court of Lake County, No. 14-CF-2075; the
Review Hon. Ari P. Fisz, Judge, presiding.
Judgment Reversed and remanded.
Counsel on James E. Chadd, Thomas A. Lilien, and Yasemin Eken, of State
Appeal Appellate Defender’s Office, of Elgin, for appellant.
Eric F. Rinehart, State’s Attorney, of Waukegan (Patrick Delfino,
Edward R. Psenicka, and Stephanie Hoit Lee, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE SCHOSTOK delivered the judgment of the court, with
opinion.
Justices Zenoff and Jorgensen concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant, Anthony M. Weber, was convicted of aggravated battery
with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2014)) and was sentenced to 16 years’
imprisonment. After this court affirmed on direct appeal his conviction and sentence (People
v. Weber, 2018 IL App (2d) 151290-U, ¶ 23), he petitioned for relief under section 2-1401 of
the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2018)). In his petition,
defendant asked the trial court to consider his petition as a postconviction petition under the
Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) if he was denied
relief under section 2-1401. The court dismissed the section 2-1401 petition and declined to
consider the petition as a postconviction petition because, even if it did, defendant would not
be entitled to any relief. Defendant timely appeals, arguing that the court was required to
consider his section 2-1401 petition as a postconviction petition after determining that he was
not entitled to relief under section 2-1401. We agree. Thus, we reverse the trial court’s
dismissal of the section 2-1401 petition and remand this cause for further proceedings under
the Act.
¶2 I. BACKGROUND
¶3 On July 28, 2014, four boys confronted defendant as they rode their bikes past his house.
Defendant fired a gun at the boys and ran after them as they rode away. One boy described
how defendant pointed a gun at all four of them and fired, trying to shoot at least one of the
boys. Defendant did shoot one of the boys in the leg. Based on these acts, defendant, as relevant
here, was charged with four counts of attempted first degree murder (720 ILCS 5/8-4(a), 9-
1(a)(1) (West 2014)), one count of aggravated battery with a firearm, and four counts of
aggravated discharge of a firearm (id. § 24-1.2(a)(2)).
¶4 The case proceeded to a jury trial. At the close of evidence, defense counsel asked for a
lesser-included offense instruction on reckless discharge of a firearm (id. § 24-1.5(a)) on all
counts. The trial court gave that instruction on all counts except aggravated battery with a
firearm, as the court found that pointing a gun at and shooting a person is not a merely reckless
act. On all four attempted first degree murder counts, the jury found defendant guilty of
reckless discharge of a firearm. The jury also found defendant guilty on all four counts of
aggravated discharge of a firearm and the single count of aggravated battery with a firearm.
The court remarked that the verdicts on reckless discharge of a firearm were inconsistent with
the verdicts on aggravated discharge of a firearm. After the parties discussed how to proceed,
the State nol-prossed all the counts except aggravated battery with a firearm. Defendant was
sentenced, and he appealed.
¶5 On appeal, defendant argued that his trial counsel was ineffective for failing to request a
jury instruction on reckless conduct as a lesser-included offense of aggravated battery with a
firearm. This court affirmed, finding that, because defendant was not entitled to a recklessconduct instruction, counsel was not ineffective for failing to request that instruction. Weber,
2018 IL App (2d) 151290-U, ¶ 19.
¶6 Eight months later, on February 5, 2019, defendant filed pro se a petition titled “Petition
for Relief from Judgment Pursuant to 735 ILCS 5/2-1401(f).” Defendant argued that his trial
counsel was ineffective because, when the jury reached inconsistent verdicts, counsel did not
ask that the jury be given further instructions and directed to continue deliberations. Instead,
-2-
counsel accepted the State’s suggestion that it nol-pros all counts except aggravated battery
with a firearm. Defendant claimed that the judgment entered against him was based on legally
inconsistent verdicts and, thus, void. Defendant also asserted that his trial counsel was
ineffective “for failing to object to [defendant] being sentenced on the most serious charge”
and that appellate counsel was ineffective for failing to raise trial counsel’s errors.
¶7 In two footnotes in his section 2-1401 petition, defendant (1) asked the trial court to treat
his petition as a postconviction petition if the court determined that he was not entitled to relief
under section 2-1401 and (2) argued that, if considered as a postconviction petition, his petition
should be deemed timely filed. Specifically, the first footnote stated:
“If this court finds that [defendant] is not entitled to relief under 735 ILCS 5/2-1401(f)
[(West 2018)], this court should allow [defendant] to convert his petition into a Petition
for Postconviction Relief under the Post[-C]onviction Hearing Act, pursuant to 725
ILCS 5/122-1 et seq. [(West 2018)], and allow his [sic] to plead timeliness.”
¶8 In the second footnote, defendant asserted:
“In the event that this petition is converted into a postconviction petition, it is
timeliy [sic] filed under the Act where [defendant’s] PLA [(petition for leave to
appeal)] is currently pending before the Illinois Supreme Court. [Defendant] contends
that both his trial and appellate counsel were ineffective for failure to raise these claims
previously.”
¶9 On August 23, 2019, without any input from the State, the trial court dismissed the section
2-1401 petition. After doing so, the court ruled:
“As a final matter, the court has considered whether, pursuant to [defendant’s]
request and in an exercise of discretion, to recharacterize the petition as a petition for
post-conviction relief pursuant to the [Act]. [Citation.] A number of reasons militate
against recharacterizing the petition in this case, and this court declines to do so.
[Citation.] One of those reasons is that even if the court chose to recharacterize this
petition, [defendant] would still not prevail. … The arguments put forward by
[defendant] in this petition were not argued on direct appeal, though they could have
been. Therefore, these arguments would be considered waived if this court were to
recharacterize this petition as a Post-Conviction Petition.”
¶ 10 II. ANALYSIS
¶ 11 At issue in this appeal is whether the trial court was required to consider defendant’s section
2-1401 petition as a postconviction petition once it ruled that defendant was not entitled to
relief under section 2-1401.
¶ 12 In resolving this issue, we must interpret section 122-1(d) of the Act (725 ILCS 5/122-1(d)
(West 2018)), which guides trial courts in deciding whether to characterize a pleading as a
postconviction petition. Interpreting a statute presents a question of law that we review
de novo. People v. McDonald, 373 Ill. App. 3d 876, 878 (2007). Our primary goal in
interpreting a statute is to ascertain and give effect to the legislature’s intent. People v. Phelps,
211 Ill. 2d 1, 15 (2004). The statute’s language, given its plain and ordinary meaning, is the
most reliable indicator of the legislature’s intent. Id. Accordingly, “[w]e will not depart from
the plain language of the statute by reading into it exceptions, limitations, or conditions that
conflict with the express legislative intent.” People v. Blair, 215 Ill. 2d 427, 443 (2005).
-3-
¶ 13 With these principles in mind, we turn to section 122-1(d), which provides:
“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.”
(Emphasis added.) 725 ILCS 5/122-1(d) (West 2018).
¶ 14 Defendant argues that he expressly met the requirements of section 122-1(d) when he
referenced the Act in the footnotes of his section 2-1401 petition and asked the trial court to
consider his section 2-1401 petition as a postconviction petition if he was denied relief under
section 2-1401 of the Code. To support his argument, defendant relies on McDonald. There,
the appellate court held that the defendant satisfied section 122-1(d) of the Act when he wrote
“ ‘Post-Conviction Petition’ ” at the top of several pages of his petition and cited sections of
the Act in a one-page appendix. McDonald, 373 Ill. App. 3d at 877, 880. Defendant contends
that, like the defendant in McDonald, he adequately informed the trial court that he wanted his
petition to be considered as a postconviction petition. Defendant notes that, though the
petition’s heading referenced section 2-1401 alone, the body of the petition expressly referred
to the “Post[-C]onviction Hearing Act” and cited section 122-1 of the Act. We agree with
defendant that he sufficiently informed the trial court that he was seeking alternative relief
under the Act.
¶ 15 Section 122-1(d) simply requires a defendant seeking relief under the Act to specify in the
heading or body of the pleading that it is being filed under the Act. Defendant filed a petition
that specified in the body—in two footnotes—that he wanted his section 2-1401 petition to be
considered as a postconviction petition if he was denied relief under section 2-1401.
Specifically, defendant asked the court to “allow [him] to convert his petition into a Petition
for Postconviction Relief under the Post[-C]onviction Hearing Act, pursuant to 725 ILCS
5/122-1 et seq.” Defendant has met the requirements of section 122-1(d) by naming and citing
the Act.
¶ 16 The State notes that the trial court expressly considered defendant’s request to consider the
section 2-1401 petition as a postconviction petition but declined to grant the request. Citing
People v. Stoffel, 239 Ill. 2d 314 (2010), the State contends that a trial court’s decision not to
“recharacterize” a defendant’s pro se pleading as a postconviction petition is not reviewable
for error. The State is correct that Stoffel addresses a trial court’s particular power to
“recharacterize” as a postconviction petition a pleading that is not designated as such, but the
State overlooks that no recharacterization was necessary here because defendant’s petition
was, by the criteria of section 122-1(d), filed under the Act.
¶ 17 In Stoffel, the court recognized:
“the long-standing practice in Illinois of ‘recharacterization,’ i.e., the process whereby
a trial court independently evaluates a pleading filed by a pro se defendant and, if the
pleading alleges a deprivation of rights cognizable in a postconviction proceeding,
treats ‘the pleading as a postconviction petition, even where the pleading is labeled
differently.’ ” (Emphasis added.) Id. at 323 (quoting People v. Shellstrom,
216 Ill. 2d
45, 52-53 (2005)).
The second sentence of section 122-1(d) makes clear that a trial court need not recharacterize
as a postconviction petition a pleading that does not specify that it is filed under the Act:
-4-
“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 2018).
¶ 18 The initial pleading in Stoffel did not name or cite the Act. The defendant filed supplements
to the pleading that described it as having been filed under the Act. The trial court held that the
supplements could not convert the pleading into a postconviction petition where the pleading
itself did not indicate that it was filed under the Act. Stoffel, 239 Ill. 2d at 321. Before the
supreme court, the State argued that “a trial court’s failure to recharacterize a pro se pleading
[(as a postconviction petition)] cannot be reviewed for error.” Id. at 322. The court agreed.
Because there was no question that the pleading did not specify in its heading or body that it
was filed under the Act, the issue was whether the trial court appropriately exercised its
discretion not to recharacterize the pleading as a postconviction petition. The court construed
the second sentence of section 122-1(d) to mean that, “ ‘[i]f a pro se pleading alleges
constitutional deprivations that are cognizable under the Act, but, … the pleading makes no
mention of the Act, a trial court is under no obligation to treat the pleading as a postconviction
petition.’ ” (Emphases in original.) Id. at 324 (quoting Shellstrom,
216 Ill. 2d at 53 n.1). The
court concluded:
“a trial court has no obligation to recharacterize a pro se pleading pursuant to section
122-1(d). It cannot be error for a trial court to fail to do something it is not required to
do. Accordingly, we hold that, in light of section 122-1(d), a trial court’s decision not
to recharacterize a defendant’s pro se pleading as a postconviction petition may not be
reviewed for error.” (Emphases in original.) Id.
¶ 19 Stoffel’s holding does not apply here, because defendant’s pleading did not fail to
“ ‘mention … the Act.’ ” Id. (quoting Shellstrom,
216 Ill. 2d at 53 n.1). Rather, as noted, the
pleading met the requirements of the first sentence of section 122-1(d). Specifically, defendant
stated that he wanted the trial court to consider his section 2-1401 petition as a postconviction
petition if the court determined that he was not entitled to relief under section 2-1401.
Defendant named and cited the Act. Thus, the trial court’s discretionary power to
recharacterize a petition was not triggered. Rather, the court was required to consider
defendant’s petition as a postconviction petition.
¶ 20 Acknowledging that “[d]efendant did mention the Act in two ‘footnotes,’ ” the State claims
that the trial court’s failure to treat defendant’s section 2-1401 petition as a postconviction
petition was not improper, because “[defendant] did not tie [the footnotes] to any specific text
in the body of the petition.” That is not required. As noted, section 122-1(d) requires only that
the defendant “specify in the petition or its heading that it is filed under this Section.” 725
ILCS 5/122-1(d) (West 2018). Defendant did exactly that in his section 2-1401 petition. If we
were to adopt the State’s position—that a defendant must explicitly indicate what arguments
he wants considered under the Act—we would be reading into section 122-1(d) of the Act a
requirement that the legislature did not provide. We cannot do that. See Blair, 215 Ill. 2d at
443.
¶ 21 Relying on People v. McNett,
361 Ill. App. 3d 444 (2005), the State comments: “To the
extent defendant claims that his conviction is void, the [State] agree[s] that this Court could
consider that issue on appeal through its own re-characterization of [defendant’s] petition on
appeal.” We decline to do so. McNett does provide authority for the appellate court to
-5-
“reclassify” a “freestanding motion to vacate a void order”—which is not recognized under
Illinois law—and “consider it as being brought under one of the statutorily authorized modes
of collateral attack.” Id. at 447. However, unlike the defendant in McNett, defendant here did
not file a motion unrecognized under Illinois law. Rather, defendant filed a petition recognized
under Illinois law, i.e., a section 2-1401 petition, and sought to have that petition treated as
another petition recognized under Illinois law. Therefore, McNett is inapplicable here.
¶ 22 In the alternative, the State argues that the trial court did consider the section 2-1401
petition as a postconviction petition but found that defendant was not entitled to postconviction
relief. We disagree that the trial court considered the petition as a postconviction petition.
Rather, the court evidently used its determination that defendant’s arguments would not
succeed as postconviction claims to buttress its refusal to consider the petition as a
postconviction petition. In any event, the court’s impression of the petition’s potential merit as
a postconviction petition was flawed. The court believed that defendant’s arguments were
waived, but this was unfounded, as defendant avoided waiver by arguing that appellate counsel
was ineffective for failing to raise trial counsel’s errors. See People v. Turner, 187 Ill. 2d 406,
413 (1999) (waiver avoided if postconviction petition alleges ineffective assistance of appellate
counsel for failing to raise claims on direct appeal).
¶ 23 In light of the above, we hold that defendant’s petition met the requirements of section 122-
1(d) of the Act and that the trial court erred in not considering the pro se section 2-1401 petition
as a postconviction petition. Accordingly, we reverse and remand. See McDonald, 373 Ill.
App. 3d at 881. However, in doing so, we must next determine at what stage of the
postconviction process the trial court should assess the petition upon remand. Id.
¶ 24 The Act provides a three-stage process for adjudicating postconviction petitions.
Id. At the
first stage, the trial court determines whether the postconviction petition is “frivolous or …
patently without merit,” which is also known as the “gist” standard. 725 ILCS 5/122-2.1(a)(2)
(West 2018); People v. Boclair, 202 Ill. 2d 89, 99 (2002). This review must be completed
“[w]ithin 90 days after the filing and docketing of each petition.” 725 ILCS 5/122-2.1(a) (West
2018). If the petition is not dismissed within 90 days under section 122-2.1(a) of the Act, the
petition advances to stage two. McDonald, 373 Ill. App. 3d at 881. At the second stage, the
trial court appoints legal counsel, who will then have an opportunity to amend the petition. 725
ILCS 5/122-4 (West 2018). If the petition is not dismissed at stage two, it proceeds to stage
three, where the trial court conducts an evidentiary hearing. See id. § 122-6.
¶ 25 Here, defendant’s petition was filed on February 5, 2019. The trial court did not rule on the
petition until August 23, 2019, 199 days later. Although the trial court did dismiss defendant’s
section 2-1401 petition, it failed to address defendant’s request for relief under the Act within
90 days of the petition’s filing. Thus, under the Act, the petition must be remanded for stagetwo proceedings. See McDonald, 373 Ill. App. 3d at 881.
¶ 26 In reaching our conclusion, we note that we are in no way expressing our view on the merits
of defendant’s postconviction petition. We simply reverse and remand solely because the trial
court failed to address within the statutory 90-day period whether the postconviction petition
was “frivolous or … patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2018).
-6-
¶ 27 III. CONCLUSION
¶ 28 For the reasons stated, we reverse the judgment of the circuit court of Lake County and
remand for further proceedings.
¶ 29 Reversed and remanded.
-7-
