THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIK C. LONGBRAKE, Defendant-Appellant.
NO. 4-12-0665
IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
October 11, 2013
2013 IL App (4th) 120665
Honorable Chet W. Vahle, Judge Presiding.
Appeal from Circuit Court of Adams County No. 09CF270. Carla Bender, FILED October 11, 2013, 4th District Appellate Court, IL
Justices Appleton and Knecht concurred in the judgment and opinion.
OPINION
¶ 1 In October 2009, a jury convicted defendant, Erik C. Longbrake, of two counts of unlawful delivery of a controlled substance (
¶ 2 On October 13, 2011, defendant filed a petition for postconviction relief pursuant to the Post-Conviction Hearing Act (Act) (
¶ 3 Plaintiff appeals, arguing that the trial court erred by (1) sua sponte dismissing his October 13, 2011, postconviction petition without prejudice and with leave to refile and (2) dismissing his petition as frivolous and patently without merit on May 16, 2012, more than 90 days after he first filed his petition. Defendant also argues that the $2,000 drug assessment for each count must be reduced to $1,000 each. We agree and reverse.
I. BACKGROUND
¶ 5 In October 2009, a jury convicted defendant of two counts of unlawful delivery of a controlled substance (
¶ 6 On October 13, 2011—while his appeal was pending—defendant filed a petition for postconviction relief pursuant to the Act. On January 6, 2012, the trial court entered an order dismissing the petition sua sponte with leave to refile, finding defendant‘s petition was not ripe for consideration because the appellate court had not yet filed its mandate or returned the transcript to the trial court, thus precluding the court from reviewing the transcript to consider the
¶ 7 On January 18, 2012, this court issued our mandate ending defendant‘s appeal. On February 23, 2012, defendant refiled his postconviction petition. On May 16, 2012, the trial court entered a handwritten order denying defendant‘s petition and noting a formal order would follow. On June 12, 2012, a formal order was entered that dismissed the petition as patently without merit and failing to state the gist of a constitutional claim.
¶ 8 This appeal followed.
II. ANALYSIS
¶ 10 Plaintiff argues that the trial court erred by (1) sua sponte dismissing his October 13, 2011, postconviction petition without prejudice and with leave to refile and (2) dismissing his petition as frivolous and patently without merit on May 16, 2012, more than 90 days after he first filed his petition. Defendant also argues that the $2,000 drug assessment for each count must be reduced to $1,000 each. We address defendant‘s arguments in turn.
A. Dismissal of the October 13, 2011, Postconviction Petition
¶ 12 The dismissal of a postconviction petition without an evidentiary hearing is reviewed de novo. People v. Harris, 224 Ill. 2d 115, 123, 862 N.E.2d 960, 965 (2007).
¶ 13 The Act sets out a three-stage process for consideration of a postconviction petition. In the first stage of review, the circuit court must examine the petition within 90 days of its filing and either (1) enter an order dismissing it as frivolous or patently without merit or (2) docket it for further consideration at the second stage of the postconviction proceedings.
¶ 14 In this case, the trial court dismissed defendant‘s October 13, 2011, postconviction petition, concluding it was not ripe for consideration because the appellate court had not yet issued its mandate and, thus, the circuit court did not have access to the transcripts. However, our supreme court has recognized a postconviction case may proceed at the same time as a direct appeal. Harris, 224 Ill. 2d at 126, 862 N.E.2d at 967-68. As defendant concisely notes in his brief, citing Harris, 224 Ill. 2d at 126-29, 862 N.E.2d at 967-69, “[t]here is no basis in either the language of the Act or the Supreme Court‘s jurisprudence for a circuit court to hold a petition in abeyance during a direct appeal or to dismiss the petition without prejudice to re-fil[e] after the conclusion of the appeal.”
¶ 15 More important, although the trial court‘s concern that it was unable to review the transcripts is understandable, the absence of the record simply makes no difference because the 90-day time limit is absolute. “[I]n considering a postconviction petition at the first stage of the proceedings, the court can examine the following: ‘the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding[,] and any transcripts of such proceeding.’ ” People v. Dorsey, 404 Ill. App. 3d 829, 833, 942 N.E.2d 535, 539 (2010) (quoting
¶ 16 We reject the State‘s contention that any error was harmless because the trial court allowed him to refile after the mandate was issued. Given the clear statutory mandate, harmless error analysis is not appropriate if the 90-day deadline is not met. Accordingly, we remand for second-stage proceedings pursuant to the Act (
B. Drug Assessments
¶ 18 Defendant also contends that, pursuant to statute, the $2,000 drug assessment for each count must be reduced to $1,000 each. The State concedes this issue. We accept the State‘s concession.
¶ 19 A sentence in conflict with a statute is void and may be challenged at any time. People v. Roberson, 212 Ill. 2d 430, 440, 819 N.E.2d 761, 767 (2004). Defendant was convicted of two Class 2 felonies.
III. CONCLUSION
¶ 21 For the reasons stated, we reverse the trial court‘s sua sponte dismissal of defendant‘s October 13, 2011, postconviction petition and remand for second-stage proceedings; we also remand with directions to correct the sentencing judgment to reflect a $1,000 drug
¶ 22 Reversed and remanded with directions.