People v. Robinson

Decision Date20 October 2005
Docket NumberNo. 97267.,97267.
Citation217 Ill.2d 43,838 N.E.2d 930
PartiesThe PEOPLE of the State of Illinois, Appellant and Cross-Appellee, v. Emmanuel ROBINSON, Appellee and Cross-Appellant.
CourtIllinois Supreme Court

Lisa Madigan, Attorney General, Springfield, Richard A. Devine, State's Attorney, Chicago (Linda D. Woloshin, Assistant Attorney General, Chicago, Renee G. Goldfarb, Michele Grimaldi Stein, Alan J. Spellberg, Owen D. Kalt, Annette Collins, Assistant State's Attorneys, of counsel), for the People.

Michael J. Pelletier, Deputy Defender, Jennifer Bonjean, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for appellee and cross-appellant.

Justice GARMAN delivered the opinion of the court:

Petitioner, Emmanuel Robinson, filed a pro se petition under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2000)), challenging his convictions for first degree murder and attempted first degree murder. The circuit court of Cook County summarily dismissed his petition as frivolous or patently without merit. See 725 ILCS 5/122-2.1(a)(2) (West 2000). Twelve days after the order of dismissal was entered, the clerk served the order on petitioner by certified mail. However, the Act provides that such an order "shall be served upon the petitioner by certified mail within 10 days of its entry." 725 ILCS 5/122-2.1(a)(2) (West 2000). Thus, service was two days late. Nevertheless, petitioner timely filed a notice of appeal. The appellate court reversed and remanded. 343 Ill.App.3d 910, 278 Ill.Dec. 627, 799 N.E.2d 345. The appellate court held the Act's 10-day service provision is mandatory, and therefore the clerk's failure to timely serve petitioner required that the petition be remanded for further proceedings. 343 Ill.App.3d at 921, 278 Ill.Dec. 627, 799 N.E.2d 345. The State sought leave to appeal, which we allowed. See 177 Ill.2d R. 315. Petitioner seeks cross-relief, arguing the circuit court erred in dismissing his petition as frivolous or patently without merit.

BACKGROUND

Petitioner was convicted after a bench trial of first degree murder, attempted murder, and aggravated battery with a firearm. The charges stemmed from a shooting in which Tommy McNeal was killed and Tommy's brother, Raleigh McNeal, was wounded. At trial, Raleigh testified that early in the afternoon of July 10, 1997, he and Tommy were standing in front of their mother's house at 5656 South Paulina in Chicago, near the corner of Paulina and 57th. Raleigh was selling heroin on the corner that day, but Tommy was not. A car pulled up, and petitioner, his codefendant Arthur Wilson, known as "Ton Ton," and a man named Troy got out. Raleigh had known petitioner for three or four years because they lived in the same neighborhood, and had known Wilson for six to eight months. Petitioner told Raleigh and Tommy they had to stop selling drugs on that corner. Tommy replied that they were not selling drugs, and they would not leave the corner because they lived there. Petitioner replied that if they did not stop selling drugs on that corner he would return after dark and "air out" — which Raleigh understood to mean kill — everyone he found there. Petitioner, Wilson and Troy then left.

That evening at about 9 p.m. Raleigh and Tommy were standing on the same corner. Raleigh noticed a light attached to a motion sensor at 5650 Paulina come on. This caused him to look toward the gangway between that house and his sister's house, at 5652 Paulina, because he knew that when the light came on someone was moving either behind the house or in the gangway. He saw three men dressed in black, wearing black skullcaps, come out of the gangway onto Paulina and begin walking south toward him. Raleigh identified petitioner and his codefendant Wilson as two of the men. He testified he could not identify the third man. He noticed all three carried guns. At that point, the three began shooting and Raleigh turned and ran, trying to reach shelter behind a tree near the corner. He was hit in the left leg and fell. As he was lying on the ground, he noticed that Tommy had also been shot and appeared to be dead.

Shortly thereafter police officers arrived at the scene. Over petitioner's objection, Raleigh testified he told the responding officers that petitioner and "Ton Ton" shot him. Raleigh was then taken to a hospital, where he received treatment and learned that Tommy was dead. After about three hours he left the hospital and went home. On July 13 he went to the police station to view two lineups, in which he identified petitioner and his codefendant Wilson.

A second eyewitness, Raleigh and Tommy's sister Claire McNeal, described the shooting in substantial agreement with Raleigh's testimony. Claire had not been present during the confrontation earlier in the day, nor did she know petitioner or Wilson prior to the shooting. Like Raleigh, she identified petitioner and Wilson as shooters in lineups conducted on July 13.

The trial court found petitioner guilty of first degree murder, attempted first degree murder, and aggravated battery with a firearm. Petitioner was sentenced to concurrent terms of 45 years for the murder and 20 years each for attempted murder and aggravated battery. On direct appeal, the appellate court vacated the aggravated battery conviction, based on the one act, one crime doctrine, and affirmed the other convictions and sentences. People v. Robinson, No. 1-99-2348, 326 Ill.App.3d 1158, 285 Ill.Dec. 302, 811 N.E.2d 789 (2001) (unpublished order under Supreme Court Rule 23). While the direct appeal was pending, petitioner filed a pro se postconviction petition in which he alleged, on numerous grounds, that his trial counsel and appellate counsel had been ineffective, that his trial was unfair, and that he was not proven guilty beyond a reasonable doubt.

In reversing the summary dismissal of defendant's petition, the appellate court noted that section 122-2.1(a)(2) of the Act provides that an order of dismissal "shall" be served within 10 days of entry and that "shall" is generally indicative of mandatory intent. 343 Ill.App.3d at 919-20, 278 Ill.Dec. 627, 799 N.E.2d 345. The court then noted that in People v. Porter this court had addressed a different timing requirement in section 122-2.1, namely, that the circuit court shall enter an order of dismissal within 30 (now 90) days, and held it to be mandatory. 343 Ill.App.3d at 920, 278 Ill.Dec. 627, 799 N.E.2d 345, citing People v. Porter, 122 Ill.2d 64, 85, 118 Ill.Dec. 465, 521 N.E.2d 1158 (1988). The court emphasized that Porter distinguished the timing requirement from another requirement in section 122-2.1, which purported to require the court to issue a written order with findings of fact and conclusions of law. 343 Ill.App.3d at 920-21, 278 Ill.Dec. 627, 799 N.E.2d 345, quoting Porter, 122 Ill.2d at 82, 118 Ill.Dec. 465, 521 N.E.2d 1158. Porter reasoned that the written-order requirement intruded upon the judicial function of the court, and therefore to read the written order requirement as mandatory would violate the doctrine of separation of powers. 343 Ill.App.3d at 920-921, 278 Ill.Dec. 627, 799 N.E.2d 345, citing Porter, 122 Ill.2d at 82, 118 Ill.Dec. 465, 521 N.E.2d 1158. Applying Porter, the appellate court reasoned that, because the 10-day service requirement involves a ministerial function, not a judicial function, and because the 10-day service requirement appears within the same section of the Act as the 90-day requirement, the 10-day requirement is also mandatory. 343 Ill.App.3d at 921, 278 Ill.Dec. 627, 799 N.E.2d 345. Because it is mandatory, the court concluded, the clerk's failure to comply required the petition be remanded for further proceedings. 343 Ill.App.3d at 921, 278 Ill.Dec. 627, 799 N.E.2d 345.

ANALYSIS
I. The State's Appeal

The pertinent part of section 122-2.1 of the Act provides as follows:

"If * * * 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 final 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 2000).

Before this court, petitioner stresses the fact that the statute provides the clerk "shall" serve him within 10 days, and points out that "shall" generally indicates the legislature's intent to impose a mandatory obligation. See People v. O'Brien, 197 Ill.2d 88, 93, 257 Ill.Dec. 669, 754 N.E.2d 327 (2001).

In this case, however, there is no genuine dispute that the 10-day notice requirement has the force of a command and that it imposed a mandatory obligation on the clerk. We do not understand the State to argue that the legislature meant merely to grant the clerk permission to effect service within 10 days, if the clerk so chooses, or that the legislature only meant to suggest it might be a good idea to effect service within 10 days. In short, there is no dispute that "shall" means shall, and therefore the clerk failed to do something that was obligatory. The issue is the consequence of the clerk's failure.

It is entirely understandable why petitioner would argue as he does. The issue in this case can be stated as whether the statute is mandatory or directory. That question is easily confused with the separate question whether statutory language is mandatory or permissive. Because the word "mandatory" appears in both, it is natural to suppose they are really the same question and that the words "permissive" and "directory" must be synonyms. However, as courts have occasionally pointed out, they are not the same question at all.

For example, in Morris v. County of Marin, 18 Cal.3d 901, 559 P.2d 606, 136 Cal.Rptr. 251 (1977), the question was whether a California statute, which provided that every county that issues building...

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