People v. Hansen

• Decision Date: 27 May 2011
• Docket Number: No. 2–08–1226.,2–08–1226.
• Citation: 351 Ill.Dec. 709,2011 IL App (2d) 081226,952 N.E.2d 82
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.George H. HANSEN, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (2d) 081226
952 N.E.2d 82
351 Ill.Dec. 709

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
George H. HANSEN, Defendant–Appellant.

No. 2–08–1226.

Appellate Court of Illinois, Second District.

May 27, 2011.

[952 N.E.2d 83]

Johannah B. Weber, Deputy Defender (Court-appointed), Larry R. Wells (Court-appointed), Office of the State Appellate Defender, for George H. Hansen.Joseph P. Bruscato, Winnebago County State's Attorney, Lawrence M. Bauer, Deputy Director, Joan M. Kripke, State's Attorneys Appellate Prosecutor, for People.[351 Ill.Dec. 710] OPINION Justice McLAREN delivered the judgment of the court, with opinion.

¶ 1 Defendant, George H. Hansen, appeals from the order of the circuit court of [351 Ill.Dec. 711]

[952 N.E.2d 84]

Winnebago County dismissing his pro se postconviction petition at the first stage of postconviction proceedings. We affirm.

¶ 2 Following a jury trial, defendant was convicted of the first-degree murder (720 ILCS 5/9–1(a)(1) (West 2004)) of his business partner and was sentenced to 60 years' imprisonment. This court affirmed defendant's conviction and sentence in People v. Hansen, No. 2–05–1045, 374 Ill.App.3d 1135, 348 Ill.Dec. 688, 944 N.E.2d 929 (2007) (unpublished order under Supreme Court Rule 23). Subsequently, defendant petitioned pro se for postconviction relief. Defendant claimed in his petition that both his trial and appellate counsel were ineffective. On September 23, 2008, after reciting the grounds that defendant advanced for postconviction relief, the trial court dismissed the petition, finding it frivolous and patently without merit.

¶ 3 Defendant moved the trial court to reconsider its ruling. Defendant's motion to reconsider was placed on the court's call for November 3, 2008. On that date, the court advised the State that it would “[s]chedule it for next week, November 10, at 1:30, and I'll rule on the Motion for Reconsideration.” In a written order dated November 5, 2008, the court denied defendant's motion to reconsider. At proceedings held on November 10, 2008, the court advised the State that “just for your information I did enter an order dated November 5 that says that the court being fully advised in the premises finds that [defendant's] motion for reconsideration should be and is hereby denied.” Although the court's written order was dated November 5, 2008, it was not file—stamped until November 10, 2008.

¶ 4 The order was delivered to defendant on November 19, 2008, and defendant filed a notice of appeal. The certificate of service accompanying defendant's notice of appeal indicated that defendant placed the notice in the prison's mail system on December 8, 2008, and sent it to the “Clerk of Winnebago” at the listed address. Defendant also verified under section 1–109 of the Code of Civil Procedure (Code) (735 ILCS 5/1–109 (West 2008)) that he was a named party in the action, that he had read the notice of appeal, and that the notice of appeal was true and correct to the best of his knowledge and belief. Although the certificate of service contained this verification, it was not notarized and did not indicate that proper postage was prepaid. Attached to the certificate was a copy of the envelope that had contained defendant's notice of appeal. That envelope indicated that postage was paid on December 10, 2008. Defendant's notice of appeal was file-stamped on December 12, 2008.

¶ 5 On June 24, 2009, before the briefs were filed in this court, defendant moved this court to establish jurisdiction. The State objected. On July 9, 2009, this court determined that it had jurisdiction over this appeal. Defendant filed his brief in this court seven months later.

¶ 6 The State now argues again that this court is without jurisdiction over this appeal, as defendant's notice of appeal was not timely filed. A timely filed notice of appeal is both jurisdictional and mandatory. Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill.2d 209, 213, 327 Ill.Dec. 541, 902 N.E.2d 662 (2009). In determining whether defendant's notice of appeal was timely, we look to Supreme Court Rule 606(b) (eff.Sept.1, 2006), which governs appeals in postconviction proceedings. See Ill. S.Ct. R. 651(d) (eff.Dec.1, 1984) (appeals in postconviction proceedings are governed by the rules that apply in criminal appeals “as near as may be”). Under Rule 606(b), a defendant must file a notice of appeal within 30 days [351 Ill.Dec. 712]

[952 N.E.2d 85]

after entry of the order disposing of the postconviction petition or, if a timely filed motion attacking the ruling on the postconviction petition is filed, within 30 days after the entry of the order disposing of that motion. Ill. S.Ct. R. 606(b) (eff.Sept.1, 2006). Whether this court has jurisdiction over this appeal is a question of law, subject to de novo review. John G. Phillips & Associates v. Brown, 197 Ill.2d 337, 339, 259 Ill.Dec. 12, 757 N.E.2d 875 (2001).

¶ 7 With these principles in mind, we must first determine when the order disposing of the motion to reconsider was entered. The State argues that “the date the order was entered, not when it was file-stamped, is the proper date.” Supreme Court Rule 272 provides:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by the judge or if a circuit court rule requires the prevailing party to submit a draft order, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.” Ill. S.Ct. R. 272 (eff.Nov.1, 1990).

The effective date of a final judgment is the date on which the court's action is publicly expressed, in words and at the situs of the proceeding. In re Marriage of Nettleton, 348 Ill.App.3d 961, 966, 285 Ill.Dec. 19, 811 N.E.2d 260 (2004). “A judgment ‘becomes public at the situs of the proceeding when it is filed with the clerk of the court.’ ” Granite City Lodge No. 272, Loyal Order of the Moose v. City of Granite City, 141 Ill.2d 122, 126, 152 Ill.Dec. 247, 565 N.E.2d 929 (1990) (quoting People ex rel. Schwartz v. Fagerholm, 17 Ill.2d 131, 137, 161 N.E.2d 20 (1959)).

¶ 8 Here, the trial court's written order was dated November 5, 2008, but it was not publicly expressed at the situs of the proceeding until it was filed with the clerk on November 10, 2008. To hold that November 5, 2008, was the order's effective date would create an untenable result, as defendant would have lost his ability to appeal under certain scenarios. For example, had the court not entered the order into the court file within 30 days, defendant would have been unable to file his appeal. The court could have set the date for ruling on December 6, 2008 (rather than November 10, 2008), drafted a dismissal order, signed it, and dated it November 5, 2008, and, by leaving the order dormant for 30 days, foreclosed defendant's ability to appeal from the order. Such outcomes would, of course, be unacceptable. The effective date of the court's order in this case was November 10, 2008.

¶ 9 Having determined that the order disposing of the motion to reconsider was entered on November 10, 2008, we must next determine if the notice of appeal was filed by December 10, 2008, 30 days later. The notice of appeal was not received by that date; the trial court received it two days later, on December 12, 2008.

¶ 10 Supreme Court Rule 373 (eff.Feb.1, 1994), which applies to appeals from postconviction proceedings ( People v. Lugo, 391 Ill.App.3d 995, 997, 331 Ill.Dec. 358, 910 N.E.2d 767 (2009)), provides guidance in this area (see Secura, 232 Ill.2d at 214, 327 Ill.Dec. 541, 902 N.E.2d 662). That rule states:

“Unless received after the due date, the time of filing records, briefs or other papers required to be filed within a specified time will be the date on which they are actually received by the clerk of the reviewing court. If received after [351 Ill.Dec. 713]

[952 N.E.2d 86]

the due date, the time of mailing shall be deemed the time of filing. Proof of mailing shall be as provided in Rule 12(b)(3).” Ill. S.Ct. R. 373 (eff.Feb.1, 1994).

Supreme Court Rules 12(a), (b)(3), and (c) provide:

“(a) Filing. When service of a paper is required, proof of service shall be filed with the clerk.

(b) Manner of Proof. Service is proved:

* * *

(3) in case of service by mail, by certificate of the attorney, or affidavit of a person other than the attorney, who deposited the paper in the mail, stating the time and place of mailing, the complete address which appeared on the envelope, and the fact that proper postage was prepaid[.]

* * *

(b) Effective Date of Service by Mail. Service by mail is completed four days after mailing.” Ill. S.Ct. Rs. 12(a), (b)(3), (c) (eff.Nov.15, 1992).

¶ 11 Our supreme court found “elementary” the reason that proper proof of mailing pursuant to Rule 12(b)(3) is required in order to take advantage of service by mail under Rule 373:

“If there is no proof of mailing on file, there is nothing in the record to establish the date the document was timely mailed to confer jurisdiction on the appellate court.” Secura, 232 Ill.2d at 216, 327 Ill.Dec. 541, 902 N.E.2d 662.

In Secura, the only evidence submitted of the date of mailing was the date contained in the body of a cover letter. However, in the case before us, there was something in the record to establish the date of mailing—a clear postmark of “Dec 10 2008” on the envelope in which the notice of appeal was mailed.

¶ 12 A divided panel of this court recently concluded that a postmark is not sufficient proof of mailing under Rule 373. See Lugo, 391 Ill.App.3d at 1003, 331 Ill.Dec. 358, 910 N.E.2d 767. According to the Lugo majority, “the postmark on the envelope that is taped to the back of...