Opinion
1-21-0918
12-16-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. RICHARD ROSA, Petitioner-Appellant.
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County No. 11 CR 20846-01, Honorable Timothy Joseph Joyce, Judge Presiding.
JUSTICE DELORT delivered the judgment of the court. Justices Mitchell and Lyle concurred in the judgment.
ORDER
DELORT, JUSTICE.
¶ 1 Held: We reverse and remand for second stage postconviction proceedings, because the circuit court did not enter an order ruling on the defendant's petition within the statutorily mandated 90 days.
¶ 2 Petitioner Richard Rosa appeals from the circuit court's summary dismissal of his postconviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 (West 2020)). He argues that the court erred by not entering an order ruling on the petition within 90 days. He also contends his case should be remanded for second stage postconviction proceedings because he raised an arguable claim that his sentence was fundamentally unfair and that appellate counsel was ineffective for failing to raise this issue on direct appeal. We find that the circuit court did not enter an order on Rosa's postconviction petition within 90 days of its filing and docketing and, therefore, we reverse the court's order and remand for second stage proceedings.
¶ 3 BACKGROUND
¶ 4 We limit our recitation of the facts to only those necessarily involving the filing and docketing of Rosa's postconviction petition, because they are dispositive. A jury convicted Rosa of six counts of armed robbery, six counts of aggravated kidnapping, and one count of armed habitual criminal, based on a robbery he committed with codefendant, Shawn Tribbett, on November 19, 2011, at a mobile phone retail store. Tribbett was not tried at the same time and is not a party to this appeal.
¶ 5 At trial, the jury heard evidence that Rosa and Tribbett entered the store occupied by four adults, a six-year-old child, and a three-year-old child. At gunpoint, Rosa ordered an employee to show him the cash register, which he emptied. Rosa directed the six victims into a bathroom in the back of the store. He turned off the lights in the store, took the adults' phones, and threw the older child's phone against a wall. At Rosa's direction, Tribbett duct-taped the wrists of everyone except the two children and the mother. While Tribbett stood near the bathroom door, Rosa rifled through the store. When the police arrived, Tribbett attempted to flee, but was apprehended following a short foot chase. A police officer who entered the store struggled with Rosa and the two crashed through the store's front door plate glass. Another responding officer assisted to arrest Rosa. The parties stipulated that Rosa had previously been convicted of two qualifying felonies as defined by the armed habitual criminal statute.
¶ 6 After the circuit court entered judgment on the jury's guilty verdict, it sentenced Rosa to concurrent prison terms of 60 years. Rosa's conviction and sentence were affirmed on direct appeal. See People v. Rosa, 2020 IL App (1st) 161995-U. In that appeal, this court granted appellate counsel's motion to withdraw under Anders v. California, 386 U.S. 738 (1967), on the grounds that an appeal would be without arguable merit.
¶ 7 On November 12, 2020, Rosa mailed a copy of a pro se postconviction petition to the circuit court and the Cook County State's Attorney's Office. He argues in the petition, among other things, that both trial and appellate counsel were ineffective for failing to argue that his 60-year sentence was disproportionate compared to Tribbett's 30-year sentence.
¶ 8 The circuit court's electronic docketing system indicates that court received this court's mandate from the direct appeal on November 17, 2020. The record on appeal contains multiple copies of Rosa's postconviction petition, one of which bears several different file stamps on the notice of filing, indicating that the petition was "FILED Nov. 20, 2020," "RECEIVED Jan. 5, 2021," or "RECEIVED Apr. 19, 2021." The same electronic docketing system showing the appellate court mandate had been filed on November 17, 2020, also reflected that Rosa had filed a motion on November 20, 2020, which matches the date of the file stamp on the postconviction petition. The case was set for a hearing on December 15, 2020, as indicated in the electronic docket, which also stated: "11/17/2020 Mandate Filed." At the December 15, 2020 court hearing, the circuit judge stated only, "Richard Rosa, affirmed." A criminal disposition sheet, dated December 15, 2020, also only states "affirmed," with nothing more.
¶ 9 A separate circuit court docket sheet, which is not part of the electronic docket and is dated February 2, 2021, indicates that Rosa filed a postconviction petition and that the case was assigned to a circuit judge and set for a hearing on May 4, 2021. This docket sheet does not list a filing date for the postconviction petition. The electronic docket also reflects that a hearing on the postconviction petition was set for May 4, 2021. The record does not show any additional motions, petitions, or responses were filed between November 20, 2020 and May 4, 2021.
¶ 10 On June 25, 2021, the circuit court dismissed Rosa's postconviction petition in a written order on the grounds that the petition was frivolous and patently without merit, and failed to state the gist of a constitutional claim. Rosa timely appealed the summary dismissal of his petition to this court.
¶ 11 On January 24, 2022, Rosa filed a motion in this court for summary remand of the second stage postconviction proceedings because the circuit court failed to rule on the petition within 90 days of the filing date, as evidenced by the November 20, 2020 file stamp and the circuit court's ruling on the petition on June 25, 2021. The State objected to Rosa's summary remand, contending that the circuit court clerk only received the petition on November 20, 2020, but did not docket it until April 19, 2021 and, therefore, the court's summary dismissal was timely. This court denied Rosa's motion for summary remand on February 3, 2022, finding this case was not appropriate for summary disposition. The matter has now been fully briefed.
¶ 12 ANALYSIS
¶ 13 Rosa argues on appeal that his pro se postconviction petition should be remanded for second stage proceedings because the circuit court's order summarily dismissing his petition was not entered within 90 days of the petition's filing and docketing. He also contends that his petition raises an arguable claim that his sentence was fundamentally unfair and that appellate counsel was ineffective for failing to raise this issue on direct appeal. We address only the first issue, because it is dispositive.
¶ 14 The State responds that the circuit court properly dismissed Rosa's postconviction petition within the 90-day window. The State contends that the record shows the petition was stamped multiple times reflecting the court received the petition on January 5, 2021 or April 19, 2021, and that given what it characterizes as the "initial" docketing date of May 4, 2021, the dismissal of the petition on June 25, 2021 was timely.
¶ 15 Section 122-1 of the Act states that a postconviction proceeding "shall be commenced by the filing with the clerk of the court in which the conviction took place a petition * * * verified by affidavit. * * * The clerk shall docket the petition for consideration by the court pursuant to Section 122-2.1 upon his or her receipt thereof and bring the same promptly to the attention of the court." 725 ILCS 5/122-1(b) (West 2020). The Act requires the circuit court to enter an order ruling on the petition within "90 days after the filing and docketing" of the petition. 725 ILCS 5/122-2.1(a) (West 2020). If the court fails to act within the 90-day period, it must advance the petition to the second stage. People v. Rouse, 2020 IL App (1st) 170491, ¶ 44.
¶ 16 The 90-day time period of section 122-2.1 is mandatory, not directory, and a circuit court's noncompliance with the provision renders its summary dismissal of the petition void. People v. Porter, 122 Ill.2d 64, 86 (1988). Furthermore, if the court fails to act within the 90-day period, the provision requires the court to docket the petition for further proceedings pursuant to sections 122-4 through 122-6 of the Act. 725 ILCS 5/122-2.1(b) (West 2020); see also People v. Vasquez, 307 Ill.App.3d 670, 673 (1999). Whether the circuit court timely ruled on a postconviction petition is an issue of statutory construction that we review de novo. People v. Donoho, 204 Ill.2d 159, 172 (2003).
¶ 17 Our supreme court addressed the same issue in People v. Brooks, 221 Ill.2d 381 (2006). In Brooks, the defendant placed his petition in the mail on September 9, 2002. The clerk of the circuit court stamped "Received" on the notice of filing of the defendant's petition on September 13, 2002. The same notice of filing was also stamped "Filed" by the clerk of the circuit court on September 20, 2002. The criminal court "half-sheet" also reflected "9/20/02 Petition for Post-Conviction Relief, Filed Hearing Date Set: 9/30/02." The half-sheet showed that the case was assigned to a circuit judge on September 30, 2002 and the judge summarily dismissed the petition on December 18, 2002. Id. at 389-90.
¶ 18 The defendant in Brooks argued that the plain language of the Act established that the 90-day review period began to run when the postconviction petition was received by the clerk of the circuit court, which was on September 13, 2002. The State contended that the 90-day review period began to run when the clerk of the court placed the case on the call of a judge with authority to rule on it, namely, on September 30, 2002.
¶ 19 The supreme court noted that the Act does not define the word, "docketing," and as such, the court considered its plain, ordinary, and popularly understood meaning. The court found that the verb, "docket," connotes more than the mere act of receiving the petition as the defendant suggested. The Brooks court held that the term did not require the case to be "placed on the specific call of a judge," but instead" [t]he plain meaning of the word connotes that the cause is entered on the court's official docket for further proceedings." Id. at 391. The court concluded that the date the defendant's petition was filed and docketed for purposes of section 122-2.1 of the Act was on September 20, 2002, when the clerk entered the petition into the case file to be set for further proceedings. Id.
¶ 20 In addition to Brooks, this court's ruling in People v. Lentz, 2014 IL App (2d) 130332, is also instructive here. The defendant in Lentz filed her postconviction petition on August 27, 2012. Similarly to this case, a copy of the circuit court's computerized docket showed that the filing of the petition was entered into the circuit court's records. The next day, August 28, the clerk of the court sent a letter to the defendant's attorney, informing him that a $40 filing fee was due. The docket reflected that the fee was paid on September 6, 2012. The docket also reflected that on January 25, 2013, the clerk of the circuit court set a hearing date of January 30 for the petition. When the parties appeared before the court on January 30, the court stated that it was seeing the petition for the first time and briefly discussed the possibility that the 90-day period for initial review might have expired. The court set the petition for status on March 15, 2013. On that date, the court summarily dismissed the petition, finding that the 90-day time limit did not commence until January 30, 2013, because it began running when the case was docketed, which did not occur until the petition was "placed on the call of a judge and set for hearing before that assigned judge." Lentz, 2014 IL App (2d) 130332, ¶ 3.
¶ 21 On appeal, the parties agreed that the petition was filed on August 27, 2012, but disagreed about when the petition was docketed. The State argued that docketing did not occur until January 25, 2013, the date on which the clerk set a hearing date for the petition. Both parties relied upon the holding in Brooks. The defendant pointed to the supreme court's definition of the verb "to docket" as meaning "to enter the petition into the official record for further proceedings," while the State relied upon the supreme court's finding that "docketing" occurred on the date when the clerk both "entered the petition into the case file and set it for a hearing." Id. ¶ 11.
¶ 22 The Lentz court noted that the holding in Brooks had been parsed and applied twice, both times contrary to the State's position. In People v. Gibson, 377 Ill.App.3d 748, 751 (2007), this court held that a postconviction petition was "docketed" within the meaning of Brooks when it was filed. Further, in People v. McCaskill, 2012 IL App (1st) 110174, the court rejected the State's argument that docketing requires the case to be placed on the specific call of a judge and instead found that the petition was docketed when it was stamped "Filed" by the clerk of court. Lentz, 2014 IL App (2d) 130332, ¶ 12 (citing McCaskill, 2012 IL App (1st) 110174, ¶ 13).
¶ 23 The State in Lentz argued that the analyses of both Gibson and McCaskill "utilized an incomplete definition" of docketing, because each looked to the supreme court's definition of that word as meaning "entry on the court's official docket for further proceedings," rather than its finding that, in Brooks, docketing occurred on the date when the clerk both filed the petition and set a hearing date. The Lentz court rejected the State's argument, stating that it was required to follow the reasoning of the supreme court. Lentz, 2014 IL App (2d) 130332, ¶ 13. The Lentz court did not "foreclose the possibility that the docketing of a petition - its entry into the official record - could occur on a different day than the filing of the petition." Id. ¶ 15. However, the record reflected that "these two acts did occur on the same day, and that the petition was both filed and docketed on August 27, 2012." Id. Further, "[i]f the August 27, 2012, computerized docket entry stating "post conviction petition filed" were not sufficient to show this, the letter sent to the clerk the following day regarding the filing fee necessarily showed that the petition had been 'entered into the official record.'" Id. Because the petition was both filed and docketed on August 27, 2012, the Lentz court concluded that the circuit court was without authority to enter a summary dismissal beyond the 90-day statutory period. Id.
¶ 24 In this case, the State emphasizes that the "filed" date is irrelevant in determining when the 90-day period begins because the postconviction petition must be filed and docketed. The State argues that the "Filed" stamp on the notice of filing of the petition "is but one stamp buried with the other stamps that are shown throughout the petition," and that the record indicates Rosa's petition was filed and docketed on April 19, 2021. The State contends its position is bolstered by the fact the clerk set the hearing on the petition for May 4, 2021. The State, however, fails to offer any explanation for how this court should characterize the status of the postconviction petition from its November 20, 2020 filing until its clearly apparent docketing on April 19, 2021. Also, the State ignores the electronic docket, which in fact did reflect the filing of the postconviction petition on November 20, 2020. Furthermore, the State ignores the separate circuit court docket sheet, dated February 2, 2021, which indicated that Rosa had in fact filed a postconviction petition and that a hearing date had been set for May 4, 2021 before the circuit judge.
¶ 25 In support of its position, the State cites People v. Begay, 2018 IL App (1st) 150446, ¶ 47 (quoting People v. Jones, 2015 IL App (1st) 133123, ¶ 8 n.3), which relied on a criminal "half-sheet," defined as" 'a sheet on which the clerk's office enters chronological notations indicating the procedural events of a case.'" An entry on the half-sheet "is also called a 'docket' entry * * * and may be relied on as some evidence of certain legal events." People v. Begay, 2018 IL App (1st) 150446, ¶ 47. In Begay, however, unlike this case, the postconviction petition was not entered in the circuit court's half sheets or docket sheets when originally filed. Id. ¶ 49. The timing issue involved the refiling of the petition, at which point, "it appeared on the half-sheet shortly thereafter, and the trial court acted promptly and within 90 days to review it." Id. Thus, Begay is not applicable here.
¶ 26 In Brooks, our supreme court determined that the "Filed" date indicated that the clerk entered the petition into the case file and was the proper date to consider the beginning of the 90-day time period under section 122-2.1 of the Act. Brooks, 221 Ill.2d at 391. Likewise, the courts in Lentz, Gibson, and McCaskill all held that the date the petition was stamped "Filed," was the appropriate date for filing and docketing of postconviction petitions for purposes of section 122-2.1. Lentz, 2014 IL App (2d) 130332, ¶ 15; Gibson, 377 Ill.App.3d at 751; McCaskill, 2012 IL App (1st) 110174, ¶ 13. Even under Begay, if we considered proof of filing and docketing to be the circuit court clerk's half-sheet dated February 2, 2021, the circuit court still did not review Rosa's petition under the 90-day statutorily mandated time period. We are not persuaded by the State's argument as case law does not support its position.
¶ 27 Accordingly, we hold that the circuit court acted without authority when it summarily dismissed Rosa's pro se postconviction petition after the 90-day deadline mandated in the Act. Therefore, the dismissal was improper and Rosa's petition must be docketed for further consideration at the second stage in accordance with sections 122-4 through 122-6 of the Act. See 725 ILCS 5/122-2.1 (West 2020). Due to our disposition of the case, we need not consider Rosa's remaining contention on appeal.
¶ 28 CONCLUSION
¶ 29 We reverse the order of the circuit court of Cook County and remand the cause for further proceedings.
¶ 30 Reversed and remanded.