People v. Perez

• Decision Date: 19 March 2013
• Docket Number: No. 2–11–0306.,2–11–0306.
• Citation: 370 Ill.Dec. 355,988 N.E.2d 131,2013 IL App (2d) 110306
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Ivan PEREZ, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (2d) 110306

988 N.E.2d 131

370 Ill.Dec. 355

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Ivan PEREZ, Defendant–Appellant.

No. 2–11–0306.

Appellate Court of Illinois,

Second District.

March 19, 2013.

Alan D. Goldberg, Allison L.S. Shah, State Appellate Defender's Office, Chicago, for appellant.

Joseph H. McMahon, State's Attorney, St. Charles (Lawrence M. Bauer, Joan M. Kripke, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

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

[370 Ill.Dec. 356]¶ 1 Defendant, Ivan Perez, appeals the first-stage dismissal of his postconviction petition. He contends that the order dismissing his petition is void because the trial court failed to issue the dismissal within 90 days of the petition's filing. In the alternative, defendant contends that the trial court erred when it dismissed his petition, because he presented an arguable claim that he was denied the effective assistance of appellate counsel where counsel failed to raise a meritorious issue on direct appeal. The State responds that the court's dismissal was timely and, further, that defendant's petition was frivolous and was not verified by affidavit. We determine that the trial court's judgment was not rendered within 90 days and was therefore untimely. We reverse and remand for second-stage proceedings.

¶ 2 In November 2004, a grand jury indicted defendant for the offense of murder. In February 2007, following a jury trial, defendant was found guilty. The trial court sentenced defendant to 60 years' imprisonment. On direct appeal, this court affirmed the judgment and sentence. See People v. Perez, No. 2–07–0347, 392 Ill.App.3d 1136, 368 Ill.Dec. 486, 984 N.E.2d 211 (2009) (unpublished order under Supreme Court Rule 23).

¶ 3 On November 9, 2010, defendant filed a pro se postconviction petition. Among other things, defendant alleged that he was denied the effective assistance of appellate counsel. The common-law record reflects that the trial court signed a document titled “ORDER” that was dated February 7, 2011. The contents of the order reflect that the trial court reviewed the petition; that it found that defendant had not raised any new claims of innocence or alleged a valid argument regarding a denial of constitutional rights; that it found that the petition was “frivolous and patently without merit and is dismissed”; and that the trial court thereafter ordered the circuit clerk to send a copy of the order to defendant and all counsel of record by certified mail within 10 days. The order bears a stamp by the circuit clerk indicating that it was “filed” February 8, 2011.

[370 Ill.Dec. 357]¶ 4 On March 25, 2011, defendant filed his notice of appeal. On April 22, 2011, this court allowed defendant leave to file a late notice of appeal.

¶ 5 Defendant first contends that the order dismissing his postconviction petition is void because the trial court failed to dismiss the petition within the 90–day statutory period. See 725 ILCS 5/122–2.1(a) (West 2010). Defendant argues that the date stamped by the circuit clerk, February 8, 2011, is the date on which the order was “publicly expressed” and is therefore the effective date of the order. Defendant concludes that the petition was dismissed on February 8, 2011, 91 days after it was filed. The State counters that the trial court signed and dated the order on February 7, 2011, which was 90 days after defendant's postconviction petition was filed and that thus the trial court's dismissal was timely.

¶ 6 In a noncapital case, the Post–Conviction Hearing Act (the Act) (725 ILCS 5/122–1 et seq. (West 2010)) establishes a three-stage process for adjudicating a postconviction petition. At the first stage, the trial court must independently review the petition within 90 days of its filing to determine whether it is either frivolous or patently without merit. People v. Tate, 2012 IL 112214, ¶ 9, 366 Ill.Dec. 741, 980 N.E.2d 1100 (citing People v. Hodges, 234 Ill.2d 1, 10, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009)); see 725 ILCS 5/122–2.1(a)(2) (West 2010). This 90–day 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) (citing People v. Brooks, 221 Ill.2d 381, 389, 303 Ill.Dec. 161, 851 N.E.2d 59 (2006)). We review de novo a trial court's first-stage dismissal of a postconviction petition. Tate, 2012 IL 112214, ¶ 10, 366 Ill.Dec. 741, 980 N.E.2d 1100 (citing People v. Brown, 236 Ill.2d 175, 184, 337 Ill.Dec. 897, 923 N.E.2d 748 (2010)).

¶ 7 As is relevant here, section 122–2.1 of the Act provides:

“(a) Within 90 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section.

* * *

(2) If the petitioner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry.” 725 ILCS 5/122–2.1(a)(2) (West 2010).

¶ 8 In the present case, the record clearly reflects that the trial court examined the postconviction petition within the statutory 90–day period. The trial court also signed and dated a written order within the statutory 90–day period. According to section 122–2.1(a)(2) of the Act, “[s]uch order of dismissal is a final judgment.” On the surface, then, it would appear that the trial court's February 7, 2011, date controls to establish that the postconviction petition was acted upon in a timely manner pursuant to the provisions of the Act.

¶ 9 However, such a superficial review lends no justice to the parties, the courts, or the legal profession. Our supreme court's rules dictate that an order is a judgment (Ill.S.Ct. R. 2(b)(2) (eff. May 30, 2008)) and that judgments are, generally, effective as of the date of filing (Ill. S.Ct. R. 272 (eff. Nov. 1, 1990)). See Cirro Wrecking Co. v. Roppolo, 153 Ill.2d 6, 14, 178 Ill.Dec. 750, 605 N.E.2d 544 (1992). Under this scenario, then, it would appear that the circuit clerk's February 8, 2011, filing date controls to establish the effective date of the judgment, which would result in an untimely action taken on defendant's postconviction petition.

¶ 10 Resolution of this issue turns on the date the trial court's judgment was rendered and became effective. Both Rule 2(b)(2) and section 122–2.1(a)(2) of the Act reference the term “judgment.” Historically, our supreme court defined “judgment” as “ ‘the official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination.’ ” People ex rel. Schwartz v. Fagerholm, 17 Ill.2d 131, 134, 161 N.E.2d 20 (1959) (quoting Black's Law Dictionary, 976–77 (4th ed. 1951)). “It is the expression of the court's decision that constitutes the rendition of the judgment.” Id. at 134, 161 N.E.2d 20. The Fagerholm court held that, to be effective, a judgment must be “expressed publicly, in words, and at the situs of the proceeding.” Id. at 135, 161 N.E.2d 20. The Fagerholm court considered the interests of the parties and the public and stated, “to protect such interests it is necessary that they be apprised that a decision has been made by the judge and what the decision is. They would be so apprised when it has been expressed publicly, in words and at the situs of the case.” Id. at 136, 161 N.E.2d 20. Further, a judgment “becomes public at the situs of the proceeding when it is filed with the clerk of the court.” Id. at 137, 161 N.E.2d 20.

¶ 11 Before Fagerholm, judgments at law were valid when pronounced by the court, while equitable decrees were not effective until reduced to writing. See, e.g., Freeport Motor Casualty Co. v. Tharp, 406 Ill. 295, 299, 94 N.E.2d 139 (1950) (“[R]endering a judgment” is the judicial act of the trial court in pronouncing its ruling or finding in the controversy. (Emphasis omitted.)). In enacting Rule 272 (Ill. S.Ct. R. 272 (eff. Nov. 1, 1990)), our supreme court has since eliminated the distinction. Rule 272 discusses when a judgment is entered and 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 * * *, 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.” Id.

Despite the enactment of Rule 272, however, the Fagerholm court's determination with respect to the essential elements needed for effective court action continues to be sound; that is, public expression, in words, and at the situs of the proceeding. Granite City Lodge No. 272, Loyal Order of the Moose v. City of Granite City, 141 Ill.2d 122, 126–27, 152 Ill.Dec. 247, 565 N.E.2d 929 (1990) (citing Fagerholm, 17 Ill.2d at 135, 161 N.E.2d 20).

¶ 12 With these principles in mind, we now turn to the circumstances in the present case. Neither party represents that the trial court conducted a hearing on February 7, 2011, and neither party represents that a report of proceedings exists for February 7, 2011. Therefore, our review is limited to the contents of the common-law record. The common-law record reflects that, on February 7, 2011, the trial court reviewed the postconviction petition and determined that the petition was frivolous and without merit. On that date, according to the common-law record, the ...