People v. Cathey

Trial court erred in dismissing sua sponte defendant’s section 2-1401 petition, where defendant asserted that his convictions for attempted first-degree murder and aggravated battery with firearm violated one-act, one crime doctrine. Trial court could not sua sponte dismiss section 2-1401 petition, since: (1) govt. failed to file response to said petition, and trial court failed to hold hearing prior said dismissal; and (2) any dismissal could not be based on govt. claim on appeal that instant petition was untimely, since timeliness issue is affirmative defense that can be forfeited due to failure to raise issue in trial court. Also, one act, one crime doctrine potentially applied, where attempted first degree murder and aggravated battery with firearm arose out of single act of shooting same victim. However, remand for hearing was required to determine whether defendant was diligent in raising said claim, where defendant did not file instant 2-1401 petition until more than 20 years had elapsed following expiration of applicable limitations period, and where defendant waited approximately two years after defendant claimed that he first became aware of one-act, one crime doctrine. However, trial court did not err in denying defendant separate section 2-1401 petition alleging that he pleaded guilty to drug crime that he did not commit due to police coercion, where: (1) defendant failed to raise allegation of alleged police misconduct prior to entering guilty plea; and (2) defendant’s claim that police planted drugs on him was not of such character that it would have changed result upon retrial.