People v. Anderson, 2–14–0444.

• Citation: 48 N.E.3d 1134
• Decision Date: 20 October 2015
• Docket Number: No. 2–14–0444.,2–14–0444.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Mark J. ANDERSON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

48 N.E.3d 1134

The PEOPLE of the State of Illinois, Plaintiff–Appellee
v.
Mark J. ANDERSON, Defendant–Appellant.

No. 2–14–0444.

Appellate Court of Illinois, Second District.

Oct. 20, 2015.
Rehearing Denied Nov. 18, 2015.

48 N.E.3d 1136

Michael J. Pelletier, Alan D. Goldberg, and Lauren A. Bauser, all of State Appellate Defender's Office, of Chicago, for appellant.

Robert B. Berlin, State's Attorney, of Wheaton (Lisa Anne Hoffman, Assistant State's Attorney, of counsel), for the People.

OPINION

Justice SPENCE delivered the judgment of the court, with opinion.

¶ 1 Defendant, Mark J. Anderson, appeals from the trial court's summary dismissal of his petition under the Post–Conviction Hearing Act (Postconviction Act) (725 ILCS 5/122–1 et seq. (West 2012)). Defendant argues that the trial court failed to rule on the merits of his petition within 90 days after it was docketed, so the trial court's summary dismissal of the petition is void, and the case should be remanded for second-stage proceedings. We agree with the State that we resolved this issue in a prior appeal, in which we ordered the trial court to consider the petition at first-stage proceedings. Therefore, the law-of-the-case doctrine applies. Even otherwise, defendant's argument fails on its merits, as his postconviction petition was not docketed until our mandate from the prior appeal was filed in the circuit clerk's office. As such, we affirm.

¶ 2 I. BACKGROUND

¶ 3 Following a jury trial, defendant was found guilty of two counts of predatory criminal sexual assault of a child (720 ILCS 5/12–14.1(a)(1) (West 2000)) and one count of aggravated criminal sexual abuse (720 ILCS 5/12–16(c)(1)(i) (West 2000)) for acts he committed against his girlfriend's nine-year-old daughter, A.F. Defendant was sentenced to 10 years' imprisonment for each of the predatory-criminal-sexual-assault convictions and 3 years' imprisonment for the aggravated-criminal-sexual-abuse conviction, with all terms to run consecutively, for a total of 23 years' imprisonment.

¶ 4 Defendant appealed, and on February 3, 2005, we dismissed the appeal for lack of jurisdiction, because defense counsel had filed a premature notice of appeal and failed to file a new notice of appeal. On April 18, 2006, defendant then filed a postconviction petition asserting, inter alia, that defense counsel was ineffective for failing to file a timely notice of appeal. The trial court denied the petition, and defendant appealed. This court remanded the case for the trial court to determine the applicability of People v. Ross, 229 Ill.2d 255, 322 Ill.Dec. 574, 891 N.E.2d 865 (2008). The trial court thereafter ruled that Ross applied and that defense counsel was ineffective for failing to file a timely notice of appeal. It therefore allowed defendant to file a late notice of appeal.

¶ 5 In his direct appeal, filed in 2010, defendant argued that: the trial court abused its discretion in allowing A.F.'s hearsay statements to be presented at trial under section 115–10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115–10 (West 2000) ); his conviction on count I should be reversed for lack of a corpus delicti; and the sentences imposed on the sexual assault offenses were excessive in light of his background. This court affirmed defendant's convictions and sentences. People v. Anderson, No. 2–10–0341, 2011 WL 10291702 (2011) (unpublished order under Supreme Court Rule 23 ).

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¶ 6 In May 2012, defendant filed a motion for forensic testing that was not available at trial. He alleged that the identity of the individual who committed the acts of sexual penetration was at issue at trial, because A.F. testified that it was a person named Robert, not defendant. The trial court denied defendant's motion on July 18, 2012, on the basis that identity was not at issue at trial. The trial court stated that the issue instead was whether the State proved defendant guilty beyond a reasonable doubt. We affirmed the trial court's ruling in an unpublished order. People v. Anderson, 2014 IL App (2d) 121062–U, 2014 WL 2497370.

¶ 7 On December 11, 2012, defendant filed a pro se motion for leave to file a successive postconviction petition. He attached a postconviction petition alleging claims of actual innocence and ineffective assistance of appellate counsel. The trial court denied the motion on January 18, 2013, stating that defendant failed to show cause for his failure to bring the claims in his first postconviction petition and failed to show prejudice.

¶ 8 On appeal, defendant filed a motion for a summary remand, arguing that, because his 2006 postconviction petition ultimately resulted in him being allowed to file a belated direct appeal in 2010, his 2012 petition should be treated as his first petition for postconviction relief. Defendant further argued that, since the trial court failed to determine within 90 days of the 2012 petition's filing whether it was frivolous or patently without merit, the cause should be remanded for second-stage proceedings under the Postconviction Act. In the State's response, it agreed that the 2012 petition should be treated as defendant's first postconviction petition. However, it argued that, because defendant filed a motion for leave to file a successive postconviction petition and the trial court denied such leave, the petition could not be considered filed and the 90–day period for a first-stage determination had not yet begun to run. The State argued that the petition should be considered docketed only upon remand and that the trial court should then proceed with a first-stage determination within 90 days.

¶ 9 This court granted, in part, defendant's motion for a summary remand. On October 22, 2013, in a minute order, we stated:

“[T]his cause is remanded for the trial court to consider appellant's post-conviction petition, beginning with initial consideration of the petition—not to begin with consideration of the petition at the second stage of post-conviction petition review. THIS ORDER IS FINAL AND SHALL STAND AS THE MANDATE OF THIS COURT.”

On January 10, 2014, the trial court summarily dismissed the postconviction petition as frivolous and patently without merit. This court allowed defendant to file a late notice of appeal.

¶ 10 II. ANALYSIS

¶ 11 Defendant appeals from the trial court's summary dismissal of his 2012 postconviction petition. The Postconviction Act provides a means for people under criminal sentences to assert that their convictions resulted from substantial denials of their constitutional rights. People v. Smith, 2015 IL 116572, ¶ 9, 389 Ill.Dec. 245, 26 N.E.3d 335. The Postconviction Act creates a three-stage process for the adjudication of a postconviction petition. Id. At the first stage, the trial court independently determines, without input from the State and “[w]ithin 90 days after the filing and docketing of” the petition, whether the petition is “frivolous or is patently without merit.” 725 ILCS 5/122–2.1 (West 2012). If so, the trial court shall dismiss the

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petition, and, if not, the trial court is to docket it for second-stage proceedings. Id. “The 90–day time requirement is mandatory and a trial court's noncompliance with the time requirement renders a summary dismissal order void” (People v. Swamynathan, 236 Ill.2d 103, 113, 337 Ill.Dec. 717, 923 N.E.2d 276 (2010) ), in which case the petition must then proceed to the second stage (People v. Longbrake , 2013 IL App (4th) 120665,¶ 15, 375 Ill.Dec. 207, 996 N.E.2d 1263 ). During the second stage, the trial court may appoint counsel to represent an indigent defendant, and counsel may file an amended petition. People v. Hommerson, 2014 IL 115638, ¶ 8, 378 Ill.Dec. 459, 4 N.E.3d 58. If the trial court does not dismiss the petition during the second stage, it will conduct an evidentiary hearing on the petition's merits during the third stage. 725 ILCS 5/122–6 (West 2012). We review de novo the first-stage dismissal of a postconviction petition. Swamynathan, 236 Ill.2d at 113, 337 Ill.Dec. 717, 923 N.E.2d 276.

¶ 12 On appeal, defendant argues that, because the trial court failed to rule on the merits of his postconviction petition within 90 days after it was docketed, the trial court's summary dismissal of the petition is void and the case should be remanded for second-stage proceedings.

¶ 13 Defendant argues that a petition is “docket[ed],” within the meaning of section 122–2.1(a) (725 ILCS 5/122–2.1(a) (West 2012)) when it is “entered on the court's official docket for further proceedings.” People v. Brooks, 221 Ill.2d 381, 391, 303 Ill.Dec. 161, 851 N.E.2d 59 (2006). Defendant notes that the filing of a notice of appeal does not toll or extend the 90–day period. People v. Vasquez, 307 Ill.App.3d 670, 673, 240 Ill.Dec. 875, 718 N.E.2d 356 (1999). Defendant argues that his petition was docketed on December 11, 2012, but that the trial court did not dismiss it as frivolous and patently without merit until January 10, 2014, well beyond the 90–day period. Defendant argues that at that point the trial court no longer had the authority to summarily dismiss the petition and was required to docket it for second-stage proceedings.

¶ 14 Defendant maintains that People...