2024 IL App (2d) 230079
No. 2-23-0079
Opinion filed October 8, 2024
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 14-CF-1216
)
JAMES BELL, ) Honorable
) David P. Kliment,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
Justices Schostok and Mullen concurred in the judgment and opinion.
OPINION
¶1 Defendant, James Bell, appeals the dismissal for want of prosecution of his amended
postconviction petition at the second stage of postconviction proceedings. At issue is whether a
postconviction petition may be dismissed for want of prosecution at the second stage of
proceedings and, if so, whether the trial court abused its discretion in doing so. We determine that
a petition may be dismissed for want of prosecution and that the trial court did not abuse its
discretion. Accordingly, we affirm.
¶2 I. BACKGROUND
¶3 In February 2016, defendant was convicted of one count of aggravated domestic battery
(720 ILCS 5/12-3.3(a) (West 2014)) and two counts of domestic battery (id. § 12-3.2(a)(1)). The
2024 IL App (2d) 230079
domestic battery counts merged with the aggravated domestic battery count, and, in September
2016, defendant was sentenced to serve 85% of a seven-year prison term.
¶4 In February 2020, defendant, while in custody, petitioned pro se for leave to file a late
postconviction petition. The petition for leave to file incorporated the proposed postconviction
petition. A few days later, the case was assigned to a judge. No further action was taken on the
petition for leave to file.
¶5 At the end of December 2020, defendant mailed a letter to the clerk of the circuit court,
requesting an update on his petition for leave to file. On February 2, 2021, an order was entered
advancing defendant’s postconviction petition to the second stage of postconviction proceedings
and appointing counsel to represent defendant. From March to June 2021, the case was continued
three times, with defendant’s presence waived.
¶6 In September 2021, defendant mailed another letter to the clerk of the circuit court. He
inquired about the status of his petition and asked for postconviction counsel’s contact information.
Defendant indicated that he had spoken once to counsel on the phone. Later that month, the case
was continued.
¶7 On December 15, 2021, defendant’s presence in court was waived. Postconviction counsel
advised the trial court that he and defendant had discussed potential postconviction claims.
Counsel asked for a continuance to prepare an amended petition.
¶8 On March 23, 2022, defendant’s presence in court was waived. Postconviction counsel
asked for another continuance, advising the trial court that he had talked to defendant and did not
believe there would be “too many issues” to include in the amended petition.
¶9 On August 10, 2022, postconviction counsel advised the trial court that defendant was
released from custody in July 2022 and was currently serving his term of mandatory supervised
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release (MSR). According to the Department of Corrections’ website, of which we may take
judicial notice (see People v. Young,
355 Ill. App. 3d 317, 321 n.1 (2005)), defendant remains out
of custody serving his term of MSR. See Internet Inmate Status, Ill. Dep’t of Corr.,
https://www.idoc.state.il.us/subsections/search/inms_print.asp?idoc=N64001 (last visited Sept.
25, 2024) [https://perma.cc/TXM8-4K4T]. Counsel told the court that he needed to reach
defendant but did not have his contact information. Counsel expected that defendant would call
him, or he would get the contact information from defendant’s parole officer. Counsel intended to
file an amended petition but needed to investigate one final issue defendant raised during a
conversation before his release. Counsel anticipated that the matter would be resolved quickly.
The case was continued, with the order providing that defendant must be present on the next court
date.
¶ 10 On October 26, 2022, the next court date, defendant failed to appear. Postconviction
counsel told the trial court that he had defendant’s contact information but could not reach him.
Counsel asked for a continuance, advising the court that he would “file what [he] [had]” on the
next court date if he could not contact defendant. The court said that it would not now issue a
warrant for defendant, but it stressed that defendant must appear on the next court date.
¶ 11 On November 30, 2022, the next court date, defendant again failed to appear in court.
Postconviction counsel advised the trial court that he could not find defendant. Counsel affirmed
that he had made several attempts to contact defendant, including by letter. Counsel also had sent
defendant the amended petition counsel intended to file. Counsel knew that defendant had
reviewed the amended petition, because defendant sent counsel some notes about it. Counsel told
the court that, because defendant had not appeared in court, counsel was seeking leave to
incorporate defendant’s pro se petition into counsel’s amended petition. Counsel considered
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2024 IL App (2d) 230079
himself at a “stalemate” and advised the court that he could file the amended petition now or wait
until he could contact defendant. The court granted counsel leave to file the amended petition. The
State then asked for a “short date” to assign the case to an attorney in its postconviction unit. The
State also asked the court to include in its order that defendant was required to appear on the next
court date. The court did as the State requested, setting January 11, 2023, as the next court date.
¶ 12 In December 2022, postconviction counsel filed an amended petition, which incorporated
defendant’s pro se petition. Counsel also filed a certificate under Illinois Supreme Court Rule
651(c) (eff. July 1, 2017).
¶ 13 On January 11, 2023, defendant again failed to appear in court. Postconviction counsel
advised the trial court that he had obtained defendant’s address and phone number from the parole
department but still could not reach defendant to tell him he had to appear in court. Counsel
asserted that he knew that defendant’s phone number was correct. Counsel also knew that
defendant’s address was correct, because the mail he sent defendant was not returned. Again,
unsure how to proceed, counsel said that he was agreeable to continuing the case for a motion to
dismiss or, alternatively, until defendant was found. Although reluctant to assign the case to an
assistant state’s attorney while defendant was failing to appear on his petition, the State agreed to
a continuance, informing the court that it would need six months to file a responsive pleading. The
court then advised the parties that it would sua sponte dismiss the amended petition for want of
prosecution if defendant failed to appear in court on the next court date.
¶ 14 On February 1, 2023, the next court date, defendant failed to appear in court.
Postconviction counsel advised the trial court that he could not reach defendant at the address and
phone number the parole department provided. Counsel recalled that the court had said it would
sua sponte dismiss the amended petition if defendant failed to appear on February 1. Counsel
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objected to dismissing a postconviction petition for want of prosecution at the second stage of
postconviction proceedings without a motion to dismiss from the State. The court asked the State
if it filed a motion to dismiss, and the State replied that it did not, as the court had indicated that it
would dismiss the amended petition on its own motion if defendant failed to appear. The State then
said that, “to [the] extent” the court wanted a motion, the State was orally moving to dismiss the
amended petition for want of prosecution. The court granted the State’s motion.
¶ 15 II. ANALYSIS
¶ 16 As an initial matter, we address a jurisdictional issue, which is also a small preview of the
merits of this appeal. Defendant filed a notice of appeal on March 2, 2023, and never sought to
reinstate his petition. While the appeal was pending in this court, the one-year refiling period under
section 13-217 of the Code of Civil Procedure (Code) (735 ILCS 5/13-217 (West 2022)) expired.
At that point, the dismissal for want of prosecution became a final and appealable judgment. See,
e.g., People v. Simms,
2018 IL 122378, ¶¶ 46-47 (a postconviction petition must be refiled or
reinstated within one year, and, if no petition is filed within one year, the dismissal of the petition
becomes a final order); S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander,
181 Ill. 2d 489,
508-09 (1998) (“[A]fter the period for refiling provided by section 13-217 [of the Code] expires,
a [dismissal for want of prosecution] order operates as a termination of the litigation between the
parties, and constitutes a final and appealable order.”). On the assumption that section 13-217 of
the Code applies to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West
2022)), on February 20, 2024, this court ordered defendant to file an amended notice of appeal
within 30 days of February 1, 2024, or his appeal could be dismissed. Because defendant timely
filed an amended notice, our jurisdiction has been firmly established, and we can proceed to the
merits.
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2024 IL App (2d) 230079
¶ 17 Of course, one of the core questions of this appeal is whether section 13-217 of the Code
applies to proceedings under the Act, so that a petition may be dismissed for want of prosecution
or voluntarily withdrawn. We determine that it does.
¶ 18 We review de novo the dismissal of a second-stage postconviction petition and questions
of statutory interpretation. See People v. Harris,
224 Ill. 2d 115, 123 (2007). The Act “provides a
mechanism by which those under criminal sentence in this state can assert that their convictions
were the result of a substantial denial of their rights under the United States Constitution or the
Illinois Constitution or both.” People v. Coleman,
183 Ill. 2d 366, 378-79 (1998). The Act directs
the trial court to dismiss a postconviction petition within 90 days after filing if the court, reviewing
the petition without the State’s input (People v. House,
2021 IL 125124, ¶ 16), determines that the
petition “is frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2022). If the
petition is not dismissed or otherwise ruled upon within 90 days, it advances to the second stage
of postconviction proceedings, where counsel may be appointed and the State may move to dismiss
the petition. Harris,
224 Ill. 2d at 129.
¶ 19 Here, defendant filed a pro se postconviction petition while in prison. The petition was not
ruled on within 90 days after it was filed. Accordingly, the petition advanced to the second stage
of postconviction proceedings, and postconviction counsel was appointed to represent defendant.
After defendant was released on MSR, he never appeared in court, and the only contact
postconviction counsel had with defendant was his mailed feedback on counsel’s proposed
amended petition. Eventually, counsel filed the amended petition on defendant’s behalf. Defendant
failed to appear for the next two status dates (January 11 and February 1, 2023), and counsel
remained unable to contact him. At the January 11 hearing, the trial court admonished counsel that
it would sua sponte dismiss the amended petition for want of prosecution if defendant did not
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2024 IL App (2d) 230079
appear on the next status date. When defendant did not appear on February 1, the State orally
moved to dismiss the amended petition for want of prosecution, and the trial court granted that
motion.
¶ 20 Although postconviction petitions may be filed only by defendants who have been
convicted of a crime and are “imprisoned in the penitentiary” (see 725 ILCS 5/122-1(a)(1) (West
2022)), proceedings on postconviction petitions are civil in nature (People v. English,
381 Ill. App.
3d 906, 909 (2008)). See People v. Johnson,
191 Ill. 2d 257, 270 (2000) (“A post-conviction
proceeding is not part of the criminal process. Rather, it is a collateral attack on the judgment of
conviction and is civil in nature.”). “Because postconviction proceedings are ‘civil in nature’
[citations], a court may enter an order in postconviction proceedings ‘as is generally provided in
civil cases.’ ” English,
381 Ill. App. 3d at 909 (quoting 725 ILCS 5/122-5 (West 2004)).
¶ 21 “Under Illinois law, trial courts have the power to dismiss civil actions ‘for inexcusable
delay and lack of diligence,’ which is referred to as a dismissal for want of prosecution.” People
v. Kruger,
2015 IL App (4th) 131080, ¶ 11 (quoting City of Crystal Lake v. Sak,
52 Ill. App. 3d
684, 688 (1977)). It is axiomatic that parties who initiate court proceedings “have a nondelegable
duty to take all necessary steps to bring their actions to a prompt conclusion.” Minikon v. Escobedo,
324 Ill. App. 3d 1073, 1080 (2001). “ ‘Although there is a preference for resolving cases on the
merits [citation], a trial court may dismiss a civil action due to the [litigant’s] failure to prosecute
with due diligence in order to manage the court’s docket and avoid unnecessary burdens on the
court and [other] parties.’ ” In re Estate of Young,
2020 IL App (2d) 190392, ¶ 17 (quoting Illinois
Bone & Joint Institute v. Kime,
396 Ill. App. 3d 881, 883 (2009)). A court’s authority to dismiss a
case is considered an “ ‘inherent power,’ governed not by rule or statute but by the control
necessarily vested in courts to manage their own dockets so as to achieve the orderly and
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2024 IL App (2d) 230079
expeditious disposition of cases.” Nicholson v. Chicago Bar Ass’n,
233 Ill. App. 3d 1040, 1045
(1992). As we have noted before, at common law, courts have “always” had such authority. In re
Estate of Young,
2020 IL App (2d) 190392, ¶ 17.
¶ 22 Defendant argues that, once a petition is advanced to the second stage, an involuntary
dismissal may be entered only upon written motion of the State “directed … at the claims in the
… petition.” Emphasizing the word “shall,” defendant relies on section 122-5 of the Act (725
ILCS 5/122-5 (West 2022)), which provides that, within 30 days of a petition’s docketing for
second-stage proceedings, or with additional time by leave of court, “the State shall answer or
move to dismiss.” Further, invoking the principle of lenity, defendant suggests that, to the extent
the Act is ambiguous, it should be construed in his favor. We disagree.
¶ 23 True enough, as defendant points out, no provision of the Act directly authorizes a
dismissal without prejudice, but that does not end our inquiry. Postconviction proceedings and the
Act do not exist apart from our state’s court system or its legal framework, such as the Code. The
Act, for example, does not explain how or even which discovery rules apply to postconviction
proceedings, yet our supreme court held that “a circuit court nonetheless has inherent discretionary
authority to order discovery in post-conviction proceedings.” People v. Simpson,
204 Ill. 2d 536,
548 (2001); see People ex rel. Daley v. Fitzgerald,
123 Ill. 2d 175, 183 (1988) (“we do not believe
that the absence from the criminal discovery rules of any reference to post-conviction matters was
intended to eliminate the inherent authority of the circuit courts in that regard”).
¶ 24 Furthermore, in Simms,
2018 IL 122378, our supreme court held that the one-year
reinstatement provision in section 13-217 of the Code (735 ILCS 5/13-217 (West 2022)) applies
to postconviction petitions that are voluntarily withdrawn. However, the court observed that “those
petitioners who choose this procedural option, rather than working to amend existing petitions in
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ongoing proceedings, are bound by its limitations, one of which is required refiling or
reinstatement within one year or the remaining limitation period.” Simms,
2018 IL 122378, ¶ 47.
¶ 25 The same logic applies here. Nothing in the Act precludes a trial court from exercising in
postconviction proceedings its inherent power to dismiss a civil action for want of prosecution.
Admittedly, the Act implies that, once a postconviction petition is docketed for second-stage
review, the trial court may no longer sua sponte dismiss it as frivolous or patently without merit.
However, a dismissal for want of prosecution is not based on the petition’s merit; it is based on
the petitioner’s failure to appear in court and press his claims.
¶ 26 Defendant’s assertion that the State’s motion to dismiss at the second stage must be aimed
at the substantive merits of the petition overlooks well-established precedent that the State’s
motion may raise meaningful procedural issues, such as the petition’s timeliness. See People v.
Perkins,
229 Ill. 2d 34, 48 (2007). That said, defendant’s assertion also misses one other point.
The fact that the State may file a motion to dismiss at the second stage does not mean that the trial
court cannot sua sponte dismiss a postconviction petition at that stage. We recognize that the
State’s oral motion to dismiss at the February 1, 2023, status date would be a nullity under case
law holding that the State’s motion to dismiss at the second stage must be in writing (see People
v. Jackson,
2015 IL App (3d) 130575, ¶¶ 21-22). However, even if the State’s motion was
improper, there was no prejudice to defendant. The court had said at the January 11, 2023, status
date that it would sua sponte dismiss defendant’s petition if he did not appear on February 1, the
next status date. When defendant did not appear and the State moved to dismiss for want of
prosecution, the court granted that motion. In granting the motion, the court simply did what it had
planned and was authorized to do on its own initiative.
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¶ 27 In interpreting the Act to allow second-stage dismissals for want of prosecution, we note
the heavy burdens trial courts would bear if they lacked the power to dismiss abandoned
postconviction petitions. Keeping such petitions on the docket strains already limited government
resources and jeopardizes the timely review of more meritorious claims. See International Union
of Operating Engineers, Local 148 v. Illinois Department of Employment Security,
215 Ill. 2d 37,
50 (2005) (acknowledging that judicial resources are scarce); People v. Barry,
2023 IL App (2d)
220324, ¶ 21 (“judicial resources are limited” (internal quotation marks omitted)); People v.
Alexander,
2014 IL App (4th) 130132, ¶ 51 (noting that “the supreme court favors the efficient
expenditure of judicial resources”); People v. Austin,
2014 IL App (4th) 140408, ¶ 23 (frivolous
postconviction petitions “waste[ ] time, money, and resources” and “strain[ ] the [justice] system’s
financial and human resources and make[ ] it less likely that meritorious claims will be detected
and appropriately resolved”). Moreover, we stress that, if a defendant whose postconviction
petition is dismissed for want of prosecution truly desires to pursue his claims, his due process
rights are preserved by his ability to refile the petition within one year after its dismissal. See 735
ILCS 5/13-217 (West 2022).
¶ 28 Having determined that a trial court has the authority to dismiss a postconviction petition
for want of prosecution at the second stage of proceedings, we address whether the trial court
properly exercised that authority here. “The determination of whether or not to dismiss a case for
want of prosecution is governed by the particular facts of the case and rests within the trial court’s
sound discretion.” Kruger,
2015 IL App (4th) 131080, ¶ 11. An abuse of discretion occurs only if
no reasonable person could agree with the position the trial court took. Brax v. Kennedy,
363 Ill.
App. 3d 343, 355 (2005).
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2024 IL App (2d) 230079
¶ 29 We determine that the trial court did not abuse its discretion in dismissing defendant’s
amended petition for want of prosecution. Four years after defendant was convicted and sentenced
to what essentially amounted to just under six years’ imprisonment, he petitioned for
postconviction relief. One year later, his petition advanced to the second stage of postconviction
proceedings because it was not ruled on within 90 days. During the next 17 months, defendant
remained in custody and appointed postconviction counsel worked with defendant to prepare an
amended postconviction petition. However, once defendant was released from custody in July
2022 and started serving his term of MSR, his contact with counsel was minimal. From August
10, 2022, to January 11, 2023, defendant’s case was continued five times. Each time the case was
continued, defendant was ordered to appear in court. Counsel—who presumably had correct
contact information for defendant, because his term of MSR was never revoked—repeatedly tried
to communicate with defendant to tell him he had to appear. See 730 ILCS 5/3-3-7(a)(3), (a)(4)
(West 2022) (conditions of MSR include the defendant “report[ing] to an agent of the Department
of Corrections” and “permit[ting] the agent to visit him or her at his or her home, employment, or
elsewhere to the extent necessary for the agent to discharge his or her duties”). Defendant failed
to appear in court for six months and never provided his attorney or the court with a reason why
he could not be present. Given that a reasonable person could conclude that defendant abandoned
the amended petition through his inaction, we determine that the court did not abuse its discretion
when it dismissed the amended petition for want of prosecution.
¶ 30 III. CONCLUSION
¶ 31 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 32 Affirmed.
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2024 IL App (2d) 230079
People v. Bell, 2024 IL App (2d) 230079
Decision Under Review: Appeal from the Circuit Court of Kane County, No. 14-CF-1216;
the Hon. David P. Kliment, Judge, presiding.
Attorneys James E. Chadd, Thomas A. Lilien, and Lucas Walker, of State
for Appellate Defender’s Office, of Elgin, for appellant.
Appellant:
Attorneys Jamie L. Mosser, State’s Attorney, of St. Charles (Patrick Delfino,
for Edward R. Psenicka, and Richard S. London, of State’s Attorneys
Appellee: Appellate Prosecutor’s Office, of counsel), for the People.
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