discussing the Act’s differing procedures for prisoners under sentence of death and those sentenced to imprisonment
How later courts described this case
- discussing the Act’s differing procedures for prisoners under sentence of death and those sentenced to imprisonment
- affidavits of family members asserting defendant’s brain damage, without supporting medical records, are insufficient to establish counsel’s deficiency
- responsive pleading not required when State had previously moved to dismiss earlier post-conviction petition
- all citing section 122 — 3 and refusing to consider issues not raised in the postconviction petition
Written by the judges who cited it.
The opinion
JUSTICE HARRISON, dissenting:
The majority’s discussion of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.) overlooks one important qualification. Section 122 — 2.1 of the statute (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2.1) explicitly differentiates between situations where the petitioner is under a sentence of death and those where he is sentenced to a term of imprisonment for the conviction he is challenging. The provision for summary dismissal of a petition that is "frivolous or is patently without merit” applies, by its terms, only in the latter case, namely, where the petitioner has been sentenced to imprisonment. (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2.1(a)(2).) It is inapplicable where, as here, the petitioner is under a sentence of death.
Because the petition in this case was not subject to the summary dismissal provision, the Act required the circuit court to order the petition to be docketed for further consideration in accordance with sections 122 — 4 through 122 — 6 (Ill. Rev. Stat. 1989, ch. 38, pars. 122 — 4 through 122 — 6). (Ill. Rev. Stat. 1989, ch. 38, par. 122— 2.1(b).) That was not done. Instead, the circuit court dismissed the petition sua sponte without an evidentiary hearing and without the State even having filed a motion to dismiss. This failure by the court to comply with the mandatory provisions of the statute rendered the dismissal of the petition void. (See People v. Porter (1988), 122 Ill. 2d 64, 86 .) Because the dismissal was void, the judgment of the circuit court should be vacated, and the cause should be remanded for further proceedings as required by sections 122 — 4 through 122 — 6 of the Act. I therefore dissent.