People v. Tolbert

• Docket Number: 1-18-1654
• Decision Date: 11 May 2021
• Citation: 2021 IL App (1st) 181654,197 N.E.3d 115,458 Ill.Dec. 702
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Vernon TOLBERT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2021 IL App (1st) 181654

197 N.E.3d 115

458 Ill.Dec. 702

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

v.Vernon TOLBERT, Defendant-Appellant.

No. 1-18-1654

Appellate Court of Illinois, First District, Second Division.

May 11, 2021

Vernon Tolbert, of Pontiac, appellantpro se.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Assistant State's Attorney, of counsel), for the People.

JUSTICE COBBSdelivered the judgment of the court, with opinion.

¶ 1Defendant, Vernon Tolbert, proceeding pro se , appeals from the circuit court's September 2018 order denying his motion for forensic testing regarding actual innocence pursuant to section 116-3 of the Code of Criminal Procedure of 1963( 725 ILCS 5/116-3(West 2016) ).Defendant contends the circuit court erred in finding that his request for forensic testing was without merit because it was a duplication of previous motions.For the following reasons, we dismiss defendant's appeal.

¶ 2 I. BACKGROUND

¶ 3 Following a 2002 jury trial, defendant was found guilty of first degree murder ( 720 ILCS 5/9-1(a)(West 2000)) and sentenced to 65 years’ imprisonment, which included a 25-year firearm enhancement.On direct appeal, this court affirmed his conviction and sentence.People v. Tolbert , 354 Ill. App. 3d 94, 289 Ill.Dec. 498, 820 N.E.2d 6(2004).

¶ 4 After defendant exhausted his right to direct review, he initiated a series of collateral attacks on his conviction, all of which were dismissed as lacking merit.In each action for which defendant sought appellate review, this court has affirmed.SeePeople v. Tolbert , No. 1-04-2451(2006)(unpublished order under Illinois Supreme Court Rule 23 );People v. Tolbert , No. 1-05-2914, 385 Ill.App.3d 1133, 970 N.E.2d 130(2008)(unpublished order under Illinois Supreme Court Rule 23 );People v. Tolbert , No. 1-06-2853, 377 Ill.App.3d 1144, 352 Ill.Dec. 148(2007)(unpublished order under Illinois Supreme Court Rule 23 );People v. Tolbert , No. 1-09-2332(2011)(unpublished summary order under Illinois Supreme Court Rule 23(c));People v. Tolbert , No. 1-12-0373(2013)(unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶ 5 Since our 2013 decision granting his appointed counsel's motion to withdraw pursuant to Pennsylvania v. Finley , 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539(1987), defendant has filed numerous pro se pleadings in the circuit court, which we need not recount here.With the exception of one such filing, in which defendant successfully sought retesting of a beer bottle for fingerprints, the filings were deemed to be without merit.¹

¶ 6 In February 2018, defendant filed the motion at issue in this appeal.In April 2018, he filed a supplement to that motion purportedly seeking additional forensic testing on the beer bottle.²On June 7, 2018, the circuit court denied defendant's motion, finding that it lacked merit and was duplicative of his other filings.Defendant appealed.

¶ 7 II.JURISDICTION

¶ 8 Although the State raises no issue regarding jurisdiction, as a reviewing court, we have an independent duty to evaluate our jurisdiction to consider defendant's appeal.People v. Smith , 228 Ill. 2d 95, 104, 319 Ill.Dec. 373, 885 N.E.2d 1053(2008).

Illinois Supreme Court Rule 606(a) and (b)(eff. Mar. 12, 2021) provides that to appeal a final judgment in a criminal proceeding, the defendant must file a notice of appeal with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from."The filing of a notice of appeal ‘is the jurisdictional step which initiates appellate review.’ "Smith , 228 Ill. 2d at 104, 319 Ill.Dec. 373, 885 N.E.2d 1053(quotingNiccum v. Botti, Marinaccio, DeSalvo & Tameling, Ltd. , 182 Ill. 2d 6, 7, 230 Ill.Dec. 593, 694 N.E.2d 562(1998) ).Unless a notice of appeal is properly filed, a reviewing court has no jurisdiction and is obliged to dismiss the appeal.Id.Indeed, "the appellate and circuit courts of this state must enforce and abide by the rules of [the supreme court]" and do not have the authority to excuse compliance with the filing requirements of the supreme court rules governing appeals.(Emphasis in original.)People v. Lyles , 217 Ill. 2d 210, 216, 298 Ill.Dec. 752, 840 N.E.2d 1187(2005).Whether we have jurisdiction is a question of law, which we review de novo.People v. Salem , 2016 IL 118693, ¶ 11, 400 Ill.Dec. 32, 47 N.E.3d 997.

¶ 9Illinois Supreme Court Rule 373(eff. July 1, 2017), which is applicable in criminal cases pursuant to Illinois Supreme Court Rule 612(b)(18)(eff. July 1, 2017), states as follows:

"Unless received after the due date, the time of filing records, briefs or other documents 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 the due date, the time of mailing by an incarcerated, self-represented litigant shall be deemed the time of filing.Proof of mailing shall be as provided in Rule 12.This rule also applies to a motion directed against the judgment and to the notice of appeal filed in the trial court. "(Emphasis added.)Ill. S. Ct. R. 373(eff. July 1, 2017).

Illinois Supreme Court Rule 12(b)(6)(eff. July 1, 2017) provides that, in the case of service by mail by an incarcerated pro se litigant, service is proved by certification under section 1-109 of the Code of Civil Procedure( 735 ILCS 5/1-109(West 2018) ) of the person who deposited the document in the institutional mail, "stating the time and place of deposit and the complete address to which the document was to be delivered. "(Emphasis added.)Thus, when a notice of appeal is filed outside the 30-day period following the order being appealed, the notice is deemed timely if the defendant attaches a proof of service in compliance with Rule 12(b)(6) showing it was mailed to the clerk of the circuit court within the 30-day period.SeeSecura Insurance Co. v. Illinois Farmers Insurance Co. , 232 Ill. 2d 209, 215-16, 327 Ill.Dec. 541, 902 N.E.2d 662(2009)(reasoning that the proof of mailing establishes "the date the document was timely mailed to confer jurisdiction on the appellate court").

¶ 10 Here, the circuit court entered its order denying defendant's motion for forensic testing on June 7, 2018.³Defendant's notice of appeal contains a file stamp dated July 12, 2018, which is outside the 30-day period in which defendant was required to file his notice of appeal.Accordingly, for this court to have jurisdiction over defendant's appeal, the record must establish defendant timely mailed his petition in accordance with Rules 373and12(b)(6).

¶ 11We have carefully combed through the more than 1800 pages of the common law record in search of the requisite documents supporting defendant's appeal.Contained therein is defendant's notice of appeal dated July 5, 2018.Attached to the notice is an affidavit, signed by defendant, in which he avers that "everything stated in the attached notice of appeal dated 7-5-18, is true and correct to the best of [his] knowledge and belief," and that "it should also be mentioned that the prison is currently on lock-down and the prison notary public is unavailable to notarize the notice of appeal otherwise a notary would be thereon."The only other paper in the record that appears related to this appeal is the envelope in which the notice of appeal was purportedly mailed.The envelope is addressed to the clerk of the circuit court.In the upper right-hand corner of the envelope is a label from a Hasler postage meter, which indicates $0.50 of postage was paid for on July 6, 2018, which was one day prior to the expiration of the 30-day appeal period.

¶ 12 As an intermediate reviewing court, we are constrained by our supreme court's rules.Thus, we must determine whether defendant's postage metered label is competent evidence of timely mailing as required under Rules 373and12(b)(6).The governing regulations for postage meters are contained in the United States Postal Service (USPS) Domestic Mail Manual (U.S. Postal Serv., Mailing Standards of the United States Postal Service, Domestic Mail Manual (Apr. 5, 2021) https://pe.usps.com/cpim/ftp/manuals/dmm300/full/MailingStandards.pdf [https://perma.cc/G5LE-TPKA](hereinafter DMM)).The DMM has been incorporated by reference into the Code of Federal Regulations and, thus, has the force of law.39 C.F.R. § 111.1(2005);seePeople v. Hanna , 207 Ill. 2d 486, 497, 279 Ill.Dec. 618, 800 N.E.2d 1201(2003)("Administrative regulations have the force and effect of law ***.").Thus, we take judicial notice of the pertinent regulations contained therein.SeePNC Bank, National Ass'n v. Wilson , 2017 IL App (2d) 151189, ¶ 23, 411 Ill.Dec. 791, 74 N.E.3d 100.

¶ 13 A postage meter, which the DMM identifies as a "postage evidencing system," is defined as "a device or system of components a customer uses to print evidence [‘indicia’] that postage required for mailing has been paid."DMM § 604.4.1.1.In addition to identifying the amount of postage paid, the indicia may also identify the postage meter provider (id.§ 604.4.3.3(c)), as well as the date of mailing (id.§ 604.4.6.1).According to the DMM, there are a limited number of authorized postage meter providers, one of which is Quadient, Inc., which owns Hasler (the name included in the postage meter label in this case).When a provider leases a postage meter, the provider enters into an agreement with USPS in which the provider "agrees to abide by all rules and regulations governing its use."Id.§ 604.4.2.1.As to the mailing date, the DMM provides the following:

"The date or period when mailers may deposit or present metered mail for mailing is controlled by the mailing date in the indicia under the following conditions:

a. Complete Date.Mailpieces bearing a complete date in the indicia must be deposited or presented on that date, except for pieces entered after the day's last

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