Opinion
No. 1-11-3567
08-16-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REGINALD MOSBY, Defendant-Appellant.
NOTICE: 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. 07 CR 21001
Honorable
Catherine M. Haberkorn,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Palmer and Taylor concurred in the judgment.
ORDER
¶ 1 Held: When the circuit court failed to either summarily dismiss a postconviction petition as frivolous and patently without merit or advance the petition to the second stage of proceedings within 90 days, the cause must be remanded for second-stage proceedings under the Post-Conviction Hearing Act. ¶ 2 Defendant Reginald Mosby appeals from the circuit court's order declaring his pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010), "off call" until he wrote a "more coherent letter." On appeal, defendant contends that because the court failed to determine whether the petition was frivolous and patently without merit within 90 days of its filing, this cause must be remanded for second-stage proceedings under the Act. We vacate and remand. ¶ 3 Following a 2008 jury trial, defendant was convicted of attempted first degree murder and two counts of aggravated battery. He was subsequently sentenced to 19 years in prison. This judgment was affirmed on appeal. See People v. Mosby, No. 1-08-2019 (2010) (unpublished order under Supreme Court Rule 23). ¶ 4 On July 14, 2011, defendant filed a pro se petition for postconviction relief. The handwritten petition alleged, inter alia, that he was denied the effective assistance of counsel when counsel failed to obtain certain Chicago Transit Authority surveillance footage, that witnesses Melvin Griffin, Henry McGee and Alvin Johnson committed perjury when they fabricated the entire "event," that he was not presented to a judicial officer within 48 hours after arrest for a probable cause determination, and that he was not proven guilty beyond a reasonable doubt when the victim did not suffer any life threatening injuries. ¶ 5 On September 23, 2011, the circuit court stated that it could not understand what defendant was requesting and until the court received "something a little bit more coherent," the order of July 9, 2008 was to stand, i.e., defendant's convictions and sentence. Therefore, until defendant wrote "a more coherent letter, [the matter] was off call." The half-sheet indicates that defendant's request to docket his pro se letters was denied "at this time" because the letters were "not coherent" and did not present any legal issues. ¶ 6 On appeal, defendant contends that this cause must be remanded for second-stage proceedings when the circuit court failed to examine his claims and determine whether they were frivolous and patently without merit within 90 days of the petition's filing as required by the Act. ¶ 7 Before reaching the merits of defendant's contention on appeal, we must first address the State's argument that this court lacks jurisdiction to consider defendant's appeal because the circuit court's order that the petition was "off call" was not a final order. The State further argues that because the court merely removed the petition from the court's call until such a time as defendant submitted a petition that "could be reasonably understood," the petition was not dismissed; rather, the order "continued the proceedings for an indefinite period of time." The State finally argues that this court should not "anticipate" an error when none appears on the record, that is, there is no indication that the court will not advance defendant's resubmitted petition to the second stage of proceedings under the Act "if and when" defendant complies with the court's order to submit a "petition that can be understood." ¶ 8 Initially, this court notes that the State fails to cite a provision of the Act which would permit the circuit court to remove a defendant's petition from the call indefinitely. See People v. Lomax, 2012 IL App (1st) 103016, ¶ 54 (concluding that supreme court rules require citation to authority in support of arguments and that the failure to cite authority constitutes waiver); Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013). We are also unpersuaded by the State's reliance on EMC Mortgage Corp., v. Kemp, 2012 IL 113419 and Wilson v. Edward Hospital, 2012 IL 112898, as neither case addresses a provision of the Act. ¶ 9 Contrary to the State's argument on appeal, the Act requires that within 90 days of a petition's filing, the court examine the petition and determine if it is frivolous and patently without merit. 725 ILCS 5/122-2.1(a) (West 2010). When the court dismisses the petition pursuant to section 122-2.1(a) of the Act, that order is a final judgment. 725 ILCS 5/122-2.1(a)(2) (West 2010). If however, the circuit court "did hold a petition in abeyance and 90 days passed without the court ruling on the petition, the proceeding would have to move to the second stage" of proceedings under the Act. People v. Harris, 224 Ill. 2d 115, 129 (2007); see also People v. Porter, 122 Ill. 2d 64, 85-86 (1988) (the time limit in section 122-2.1(a) is mandatory and the failure to comply with that time limit requires that the petition be docketed for second- stage proceedings). Our supreme court has held that the Act does not contain a provision which permits the circuit court to delay the beginning of the 90-day time limit when a postconviction petition is pending before the court. Harris, 224 Ill. 2d at 130. See also People v. Vasquez, 307 Ill. App. 3d 670, 673 (1999) (holding that the 90-day rule of section 122-2.1(a) is mandatory, and the filing of a notice of appeal does not toll or extend the 90 days). ¶ 10 In any event, this court finds defendant's argument that the circuit court's order removing his petition from the court's call "effectively struck" the petition persuasive. Defendant relies on People v. Wade, 326 Ill. App. 3d 940 (2001). In that case, the defendant filed a motion to withdraw his guilty pleas. The trial court subsequently ordered that " '[f]or the time being, motion stricken, not timely filed. Off call.' " Wade, 326 Ill. App. 3d at 942. The defendant contended on appeal that the cause must be remanded for a hearing on his timely filed motion and the State responded that this court lacked jurisdiction to hear the appeal because no final order was entered. ¶ 11 On appeal, this court examined the substantive effect of the order at issue rather than its form. Wade, 326 Ill. App. 3d at 942-43. We concluded that we had jurisdiction over the appeal when "despite the language 'for the time being,' the trial court struck defendant's motion" as untimely. Wade, 326 Ill. App. 3d at 943. Similarly, here, the circuit court's order removing defendant's petition from the call and denying his request to docket the petition "at this time" effectively struck defendant's postconviction petition. See Wade, 326 Ill. App. 3d at 942-43. ¶ 12 Here, defendant's pro se postconviction petition was file-stamped on July 14, 2011. Pursuant to section 122-2.1(a) of the Act (725 ILCS 5/122-2.1(a) (West 2010)), the circuit court then had 90 days to determine whether the petition was frivolous and patently without merit. In other words, the court was required to examine defendant's petition and either summarily dismiss it as frivolous and patently without merit or advance the petition to the second-stage of proceedings under the Act. 725 ILCS 5/122-2.1(a), (b) (West 2010). In the case at bar however, after examining the petition, the trial court removed it from the call until defendant submitted "something a little bit more coherent." Therefore, the court's failure to either summarily dismiss the petition as frivolous and patently without merit or advance the petition to the second stage of proceedings under the Act resulted in the petition's advancement to the second stage of proceedings under the Act. See People v. Swamynathan, 236 Ill. 2d 103, 114 (2010) ("the failure to summarily dismiss a petition within 90 days requires appointment of counsel and second-stage review"). ¶ 13 Accordingly, we vacate the judgment of the circuit court of Cook County and remand for further proceedings pursuant to the Act. ¶ 14 Judgment vacated.