*1 dangerous drugs diving. Dried, alcohol or Cut while As in ’N respondent provide did not “as if services one individual was different from the next.” See 306 Respondent 147. 101(A)(2) not like the businesses enumerated in section which provide general services all members of the public pre without screening qualification. or correctly charge affirmed petitioner’s CLC the dismissal of respondent place public
because was not accommodation under the Act.
In light finding, petitioner’s argument of the above other need be considered.
For above, legal the reasons set forth decision of chief sustaining counsel petitioner’s the dismissal of charge affirmed. Affirmed. KARNEZIS, JJ.,
THEIS and concur. ILLINOIS, OF Plaintiff-Appellee, THE PEOPLE THE STATE OF ROBINSON, EMMANUEL Defendant-Appellant. (5th Division)
First District No. 1 — 00—3309 Opinion September filed *3 Mahoney, Office, Appellate Chicago, L. for Deborah State Defender’s appellant. (Renee Goldfarb, Chicago Annette Devine, Attorney, of A. Richard State’s counsel), Attorneys, Kalt,
Collins, D. Assistant and Owen State’s People. of the court: REID the opinion
JUSTICE delivered the trial court from an order of appeal arising matter This petition for Emmanuel Robinson’s summarily dismissing defendant trial, Robinson Following a Emmanuel postconviction relief. bench murder, attempted ag- murder and degree of first guilty was found firearm. received concurrent sentences gravated battery with a He attempted murder and 20 years murder, years for the on appeal, this years aggravated battery with a firearm. On direct on convictions but attempted the murder and murder court affirmed battery firearm. For the aggravated the conviction for with a vacated follow, postcon- that dismissal of reasons we reverse and further proceedings. viction remand matter for
BACKGROUND 10, 1997, Tommy (Tommy) killed his July On McNeal was and brother, Raleigh (Raleigh), apparent drug- shot in an McNeal trial, Raleigh incident. that he and his brother related At testified standing were on the street corner in front of their mother’s home. They selling family all were heroin while their members were outside. Raleigh approached by and his brother four-door car. Rob- gray were emerged along codefendant, inson from the car Arthur Wilson. with neighbor- Raleigh recognized they Robinson lived in the same because years. hood and had known each other for four Robin- approximately selling son brothers on that stop drugs warned McNeal to corner reducing profits. Raleigh their sales Robinson’s own because were drugs. Raleigh also testified Tommy falsely selling testified that denied got to kill Robinson then Robinson threatened them. and Wilson car back into the and left the scene.
Later, p.m. evening, the McNeal brothers approximately many Again, Raleigh out on claimed that of his were back the corner. outside, Raleigh’s Mc- family including members were sister Claire (Claire). light and Raleigh Neal Both Claire saw sensor emerged. Raleigh gangway illuminate when three men dressed black recognized testified that he two of the men Robinson Wilson. pulled up turtleneck pants addition black black shirts *4 men Claire testified lips, skullcaps. their lower the three wore black anything covering that not faces and that she she did see men’s did police Raleigh not tell the that the men masks. testified that wore Raleigh leg and opened Robinson and others fire. was shot arrived, Raleigh fatally police gave Tommy was wounded. When later, Raleigh picked Robinson’s name. Three Claire both out of separate lineups. Robinson processed by
The Naujokas. crime scene was Officer John Officer Naujokas cartridges.at recovered .38 spent along automatic the curb spent with The cartridges. examiner, 9-millimeter medical Dr. Tham- Chira, rong Tommy multiple gunshot testified that died from wounds. The accompanying toxicology Tommy’s that report indicated blood- alcohol was in legal driving concentration excess limit for when he was killed. presented grandmother
Robinson as a witness. She testified p.m. that Robinson was her house from 5 approximately at until 8:45 p.m. day in question. grandmother on the Robinson’s also testified that, left evening, when Robinson the house that he wearing a jeans. cross-examination, white T-shirt and blue prosecutor On grandmother elicited from her ap- Robinson’s house was proximately one from block the scene of the crime.
Both sides then their closing arguments, made after which trial court made a finding Raleigh factual Claire were both credible witnesses. The trial court found that both of had them opportunity unobstructed to see from vantage point the shooters a enough close to allow them to be identified. The trial specifi- court also cally discrepancies found that in the testimony eyewit- small adequately explained by nesses were as being caused nerves and anxiety. The trial then guilty degree court found Robinson of first murder and first attempted degree murder. by
On appeal, represented direct Robinson was two different at- torneys, neither The represented of whom Robinson trial. first public defender sent Robinson a letter that he be bet- indicating would ter off file a choosing appeal. attorney direct That indicated sentencing and, that the court made a had error his favor might alerting be seeking appeal, prosecution direct Robinson or error, longer period trial court to the which could result The also public incarceration. defender indicated to Robinson that the Thereafter, entirely public choice was his. defender filed a brief pursuant California, to Anders v. 386 U.S. 18 L. Ed. 2d 87 S. public request Ct. 1396 defender’s This denied withdraw, on behalf. ordering appellate him to file an brief Robinson’s se, proceed pro Robinson thereafter filed a motion for leave to which this court denied. upon filed based the one- public subsequently
The defender a brief act, pro file a one-crime doctrine. Robinson filed motion leave to filed a of error with supplemental se brief. State then confession thereafter issued an one-act, to the one-crime issue. This court respect *5 error, ordering the trial court granting the State’s confession order to request Robinson’s This court also denied to correct mittimus. did, however, issue an se This court pro supplemental file the brief. ap an additional brief on direct permitting order the defense to file brief, asserted that appellate In that the assistant defender peal. considering impact three statements sentencing court erred victim pursuant Supreme to Court just court, This in an order instead one. Robinson, People v. No. judgment. affirmed the trial court’s Rule (November 2001) Supreme order under (unpublished 1 — 99—2348 23). Rule Court filed a appeal pending, postconvic- Robinson
While direct was a fair petition. impartial that he was denied tion Robinson claims guilty light find him trial because the trial court to predisposed was confession, Robinson claims suppressed. of his which was later also failing object hearsay to state- that counsel was ineffective for to witnesses, case, object ments of to uncorroborated investigate activities, testimony for drug about defendant’s and move substitution contentions, judge. argues potential of his Robinson that support McNeal, Damen, Dye Dorothy witnesses Yolanda Shaw and Lawrence police progress reports yet McNeal were listed various by argues interviewed to lawyer counsel. Robinson also that his failed investigate police report family in a progress *6 the Hearing Post-Conviction Act. The State that responds this issue
has been conclusively
resolved
the
We
Supreme
Illinois
Court.
agree.
argument
rejected by
Supreme
This
the
Court
Boclair,
People
89,
v.
202
(“Here, looking
Ill. 2d
108-13
beyond
title,
that,
face,
the
on
we conclude
Public Act
a
83—942 relates to
single
justice
criminal
subject:
system”).
Public Act 83—942 does
single subject
Diehl,
not violate the
rule.
v.
Ill.
People
App.
335
(2002),
Boclair,
citing
II (Act) (725 The Hearing Post-Conviction Act ILCS et 5/122—1 (West 2000)) seq. provides remedy whereby a may defendants chal lenge their convictions or sentences for of federal or violations state Coleman, 261, constitutional law. Ill. People v. 206 2d 277 cit ing Towns, People 491, (1998); Tenner, v. 182 Ill. 2d v. People 502 175 (1997). 372, Ill. 2d postconviction proceed 377 A action is a collateral ing appeal judgment. Coleman, and not the underlying from 206 (1999). 277, citing Williams, 55, 2d at v. 62 People Ill. 186 Ill. 2d purpose of into proceeding inquiry is allow constitutional issues not, relating to the conviction or sentence that were not could been, Coleman, 277, have appeal. determined on direct 206 Ill. 2d at citing 65, (1997); People Griffin, Ill. 2d 72-73 v. Mahaffey, 178 (1995). 445, Thus, judicata 165 Ill. 2d 452 res bars consideration is of appeal, that were raised and decided on direct and issues that sues presented appeal, not, on were could have been direct but are Coleman, 277, Towns, 206 at citing considered waived. Ill. 2d at 2d 502-03. a involving penalty,
“In the Act cases death establishes postconviction adjudicating petition a for three-stage process
917
70,
citing
Morris,
Ill.
76
App.
335
relief.”
(1996).
postcon
of a
stage
“At the first
Gaultney, petition
whether
the circuit court determines
proceeding,
viction
necessitate
infirmity that,
proven,
if
would
a constitutional
alleges
People v.
Morris,
3d at
App.
relief under the Act.”
a
stage represents
“The first
Coleman,
Ill.
record, all well-
by the
positively rebutted
pleading question. Unless
stage, and the trial court’s
are
true at this
pleaded facts
taken as
Morris,
App.
Ill.
is
to de novo
subject
determination
review.”
not dismissed
Coleman,
petition
Ill. 2d at
“If the
is
76, citing
process then subsec
stage
postconviction
of the
and survives
first
(b)
the court shall
provides
of section 122—2.1 of
Act
that
tion
in ac
petition
to be docketed for further consideration
order
” Morris,
122—6.’
through
cordance with Sections 122—4
(West
2.1(b)
1998).
ILCS
“At the
quoting
3d at
5/122 —
stage
required
the State is
postconviction process,
second
Morris,
pleading
either answer
or move to dismiss.”
1998).
(West
76, citing
stage
“If at the second
3d at
725 ILCS 5/122—5
established,
showing
substantial
constitutional violation is
hearing.”
petition
evidentiary
to the third
for an
stage
advanced
(West
Morris,
76, citing
1998);
ILCS
5/122—6
Caultney,
Robinson’s
on
postconviction
turns
received,
appeal,
trial and
direct
representation he
both at
on
amounted to ineffective assistance of counsel
defined in Strickland
Washington,
80 L. Ed. 2d
citing
698,
466
at
80
Ed. 2d at
104 S.
U.S.
L.
Ct. at
(1999).
2068;
Evans,
83,
v.
Ill. 2d
strong
186
93
There is a
presumption
performance
that counsel’s
falls within
wide range
professional
Enis,
376-77,
reasonable
194 Ill. 2d
citing
assistance.
at
Strickland,
689,
694-95, 104
Claims assistance are ineffective counsel also Enis, 377, evaluated citing under Strickland test. 194 Ill. 2d (2000). Childress, 168, People v. A defendant who claims that appellate failing counsel was ineffective for to raise issue on appeal allege demonstrating must facts that such failure was and objectively prejudiced unreasonable that counsel’s decision underlying meritorious, defendant. If the issue is not then defendant prejudice. 216, has People Rogers, suffered v. citing Enis, 194 reviewing sufficiency Ill. 2d at 377. In of the evidence, whether, the court must determine viewing the evidence in the light State, most favorable any to rational trier of fact could have found the beyond essential elements of the crime a reasonable 307, doubt. Virginia, 318-19, Jackson v. 443 U.S. 560, 61 L. Ed. 2d 573, 2781, 99 S. If issue underlying Ct. 2788-89 is non- meritorious, prejudice. Rogers, has defendant suffered no Enis, Normally, 2d at 194 Ill. 2d at appellate counsel’s concerning pursue choices which are entitled to issues substantial Rogers, Mack, citing People deference. v. 167 Ill. 2d 525, 532-33 summarily dismissing postconviction petition, supporting indicated that Robinson’s lacks affidavits
and is conelusory. agree. “[T]he We failure to either attach the neces sary ‘affidavits, records, explain or other or absence evidence’ their Turner, ‘fatal’ to a Ill. 2d post-conviction petition (People (1999)) justifies petition’s summary itself dismissal.” People Collins, Coleman, citing People (1998), quoting Jennings, Ill. 2d (1952)).
Though Chicago copies police Robinson attached certain reports petition, internal arrest to his those at progress reports provide satisfactory concluding that the tachments do basis representation peti he received was The contents ineffective. tion, arguments, presump- along with Robinson’s fail overcome *8 the decisions and that competent was representation that his tion Robinson As to the witnesses strategy. of to matters made amount testify, to and called investigated should have trial counsel claims his might reveal. investigation indicate what that nothing to presents he have trial counsel would “[i]f Instead, suggests Robinson potential [sic] lead witnesses], could have such [certain interviewed the otherwise impeach have been used information that could Raliegh McNeal.” witnesses, Claire and questionable identification factual suggests also conclusory speculative. and Robinson This is both evidence, physi- and both testimonial in the logical and discontinuities guilt. doubt of his of reasonable cal, rise to the level argues that he how trial specificity However, fails to demonstrate with Robinson undertaken. tactical decisions as a result of the counsel was ineffective claims, must we support failure to properly of Robinson’s Because on its face. the was defective petition the trial court that agree with circumstances, postconviction a defective with such ordinary Under appropriate. dismissal would be petition,
Ill petition, we Despite postconviction the deficiencies of Robinson’s petition manner was handled by now turn to the which dismissing petition court The order of the trial court below. period by the time instructed section by entered the trial within Hearing 122—2.1 Act. 725 ILCS Post-Conviction 5/122 —2.1 2000). (West However, by clerical error made by way purely court, order of court was not mailed copy clerk of the circuit statute. applicable manner mandated to Robinson reads, part, as follows: pertinent Section 122—2.1 (a) filing docketing and days “§ after the 122—2.1. Within petition and enter an each the court shall examine such petition pursuant to this Section. order thereon and the court petitioner imprisonment If the is sentenced to merit, it patently or is without petition determines the is frivolous order, findings specifying in a shall dismiss the written reaching made in its decision. Such of fact and conclusionsof law it judgment upon and shall be served order dismissal is a final entry.” (Emphasis petitioner by mail within 10 itsof certified added.) (West2000). ILCS 5/122—2.1 and is to ascertain statutory The cardinal rule of construction legislature. Property Premier give effect to the true intent of Chavez, must view Inc. v. Courts Management, in context of all of entirety both in their as well as statutory sections Diversified, other in the whole of the act itself. Northwest sections Mauer, Inc. v. 341 Ill. App. Antunes v. Sookha kitch, “To legislature’s determine the intent, a court first looks to the language, according statute’s language plain commonly understood If meaning. possible, give court must every word, clause, sentence; effect to it must not *9 read a statute so any part as to render inoperative, superfluous, or insignificant; and it depart must not from plain the statute’s language by reading into it exceptions, limitations, or conditions the legislature express.” Ellis, did not People 28, (2002), v. 199 Ill. 2d citing 39 Kraft, (1990). Inc. Edgar, 178, v. 189 In way part should of a statute be rendered meaningless. Northwest Diversified, 341 Ill. App. 36, 3d at citing Westcom/Dillingham Microtunneling v. Walsh “ (2001). Illinois, Construction 870, Co. 319 App. Ill. 3d 875 ‘The of court, however, must not, construe the statute as may written and guise construction, under the of supply omissions, remedy defects, an provisions, nex exceptions, limitations, new add conditions, or or change otherwise depart law so as to from the plain meaning of ” language employed in the statute.’ Diversified, Northwest 341 36, App. quoting Ill. 3d at In Application re the County Treasurer & of (2001). ex County, 1044, Collector Cook App. 323 Ill. 3d 1049 officio of “[T]he generally word ‘shall’ is mandatory indicative of a intent.” People Porter, 64, v. 122 (1988), Ill. 2d 85 citing People v. Youngbey,82 (1980). Ill. 2d 556 “Similarly, mandatory intent is indicated where a prescribes statute the result that specified will occur if the procedure Porter, is not 85, followed.” 122 Ill. 2d at citing People Brown, v. 142 (1986). App. Ill. 3d 139 that, Here it is undisputed due to an error of court, the clerk of the circuit the order of dismissal was not served upon petitioner days entry within 10 of its required by as is sec 2.1(a)(2). tion of postconviction petition “Dismissal if is void 122— the trial court comply provisions fails to with the of section 122—2.1.” Rutkowski, 1065, v. 225 Ill. App. 3d People v. (1989). Magdaleno, 384, App. Ill. 3d Supreme Illinois Court, addressing in the timing requirements of statutory provi sion, requirement has held that “the that the court enter a written order of dismissal within [90] after filing is a mandatory require Rutkowski, 1067, ment.” 225 Ill. App. citing People Porter, 3d v. (1988). 64, Porter,
Ill. 2d
In
Supreme
the Illinois
Court differenti
ated
timing
between the
in
requirements
section 122—2.1 within
which the trial court must act and the
of the
contents
order that must
by
be entered
the trial court. In discussing
sentencing
statutes
4—1(c)
(Ill.
found under section
of the Unified Code of Corrections
5—
4—1(c))
Rev.
par.
Stat.
ch.
reference to the case
with
People Davis,
of
v.
Supreme
Court
at the heart
of sentence was
pronouncement
Porter “reasoned that
was without
legislature
therefore the
judicial
function and
of
Porter,
applying
The issue of whether word 2.1(a)(2) mandatory directory or requirement section 122— Ross, App. this court in recently addressed “ (2003). ministerial failure proposition ‘[t]he for the Ross stands not affect the judgment into his records does of the clerk to enter ” Ross, quoting In re validity judgment.’ App. 3d at Garlinski, 107, 109 Ross takes care Marriage App. judicial merely that are keep separate those acts that are and those Redman, Ross, citing People ministerial. recently Ill. This issue was also addressed 791-92 (2002).1 Redmond, Redmond also 10-day provision stands for the that the service of section proposition *10 2.1(a)(2) Redmond, As mandatory. App. is 3d did 122— Ross, the court in on the recognize requirement placed we clerk of the court a defendant like Robinson within 10 circuit to serve days entry judgment from the of the trial ministerial. It is court’s is judicial, it in precisely because is ministerial and not concerns separation powers legislature Porter and Ross of between the about Therefore, judicial government implicated. branch of are not 10-day requirement appears because the within the same section of 90-day requirement Act as the time dismissals set -2.1(a), the clerk requirement forth section we hold that the on entry judg of from the trial act within of court’s result, mandatory requirement. ment is also a As a when the mandates with, complied of section 122—2.1 have not we have remanded been through 122—4 proceedings the cause for in accordance with sections Redmond, Hearing 122—6 of the Post-Conviction Act. 2.1(b); citing Magdaleno, 725 ILCS 5/122 — Nelson,
387, citing Even and, though is defective on its face absent petition Robinson’s error, uphold clerical not the actions of the we would hesitate court, must enforce the as written. To do otherwise would we statutes recently relying Supreme supervisory 1The Court issued a order Sawczenko, on Redmond. be to 10-day requirement render the meaningless and would leave right remedy Robinson with a but no for the violation of the statute. remedy order to matter, violation this adopt we choose to Redmond and Magdaleno approach and stage- remand the case for a hearing. Though may two futility, seem mired in it will afford opportunity Robinson the to amend his to correct the infirmi- way, ties. In this the State will bear the burden of the error below instead of the Robinson, incarcerated defendant. Should hopefully counsel, with the aid of still be unable to a demonstrate constitutional claim, he will prevail not and the litigated matter will have been error- logical free to its conclusion.
IV Finally, though it Robinson, was not raised by issue State claims the matter must be remanded for resentencing. The State argues that Robinson’s sentences should have been consecutive and applicable concurrent. The statute reads, at the time of the event in pertinent part, as follows: multiple imprisonment
“When imposed sentences of are on a time, defendant at the same or imprisonment when a term of is imposed already subject on defendant who is to sentence in this state, State or in another or imposed by any for a sentence district States, court of the United the sentences shall run concurrently or *** consecutively by as determined the court. The court shall not impose consecutivesentences which were committed as for offenses part single course during conduct which there was no change unless, substantial objective, the nature the criminal one which was convictedwas a Class X offensesfor defendant or Class 1 felony and the bodily severe injury, defendant inflicted *** in which event the court shall enter sentences to run consecu- tively. concurrently Sentences shall run specified unless otherwise added.) 8—4(a) (West (Emphasis the court.” 730 ILCS 5/5— 1996).
Initially note that pursue we the State did not this matter on appeal, though direct it ample opportunity. had accept We as an axiom “[a] sentence which does not conform statutory requirement to a People Arna, void.” *11 (1990) Mapps, 198 Ill. 3d App. (declaring 521 the portion void of a sentence longer maximum); Simmons, than the People v. 256 Ill. App. (declaring void a sentence probation where not statute). permitted by Arna, In Supreme Court held that imposing void, “[b]ecause [an] order concurrent terms the appel was authority any late court had the to correct it at time and the [citation] of the appellate actions court were not barred our rules which limit from prohibit appellate to and which right appeal the State’s at Arna, 168 Ill. 2d review.” sentence on increasing a defendant’s (1977). Sim Arna, Mapps, Scott, In v. citing People in need of infirmity, void and were, for mons, some prior sentences sentence was cases, prior that the in those assumption correction. The that the question that, There is void, assumption. precisely However, even injury. bodily taking Tommy’s life amounts severe sentencing gunshot that the indicated though prior the trial court automatically mean the serious, not Raleigh was it does wound to 8—4(a). all Not of section bodily injury purposes was severe for Durham, 312 injury. People v. per bodily are se severe gunshot wounds Raleigh was shot the fact App. Despite Ill. 3d 420-21 sentences, leg, upon imposition of concurrent based in bodily injury. As found no evidence of severe court must have not fit the definition of severe Durham, Raleigh wound does McNeal’s hours only hospital approximately three bodily injury. He was that the home. This was a fact checking going before himself out and “It is as sentence. determining appropriate trial court knew when making judge only competent sumed that a considers evidence Kozlow, citing People finding.” People App. 3d the record Tye, assumption That holds unless Kozlow, 8, citing Tye, contrary. demonstrates A of the record indicates that the trial court Ill. 2d at 25. review making the proper aggravating mitigating relied on factors when imposition of concurrent and consecutive sentencing decision. not an abuse of supported by sentences the evidence and was Eubanks, nor it be that it is “void.” discretion can said Peebles, Ill. citing People (Nickels, J., (1984); Arna, Ill. 2d at 115-117 dissent see also ing).
CONCLUSION summary dismissal of Robinson’s light foregoing, and the cause is remanded postconviction petition is reversed opinion. further proceedings consistent with Reversed and remanded.
CAMPBELL, EJ., concurs. QUINN, dissenting:
JUSTICE out, defendant’s majority dismissing I point dissent. As found that the stage, at the the trial court postconviction petition first *12 petition did supporting not have affidavits its assertions were con clusory. The majority agree with this People conclusion and cite v. Col lins, (2002), holding for its that the failure to attach “affidavits, the necessary evidence,” records or other required by as is (725 (Act) section 122—2 of the Hearing Post-Conviction Act ILCS (West 2000)), justifies dismissal of the petition. 5/122—2 majority The state: agree “[W]e must with the trial court that the petition was defective on face.” 343 App. Ill. 3d at 919. This hold ing analysis should end our and should result in affirming the trial By court. case, their decision in majority this refuse to follow the of a very dictates recent decision of supreme our court. “[I]t is fundamental judicial system to our that ‘once our supreme court any point, declares the law on its decision is on all binding courts,’ and we cannot refuse to follow it because we have no author ity to overrule or modify supreme court People decisions.” v. Crespo, (1983), 118 Ill. App. Jones, quoting People v. 114 App. Ill.
The majority note that 10-day violation of the notice rule which occurred in this case was the result of the clerk of the circuit mailing court the notice of dismissal two days mailing late. This late in prejudice resulted to the defendant whatsoever. The defendant timely filed his appeal. reversing notice of In the order of the trial court, majority correct, an order the admit legally the majority rely holding People Redmond, on the in Redmond, In the trial court sent out the notice of dismissal more than after the petition was filed and the defendant learned of the indirectly order more than entry. Redmond, two months after its Upon 3d at 375. receiving the defendant’s motion to vacate dismissal, the trial court “relate[d] forward” the date of the to preserve dismissal right appeal. defendant’s This revised date of the summary beyond dismissal was the 90-day period required by 2.1(a) section appeal, reversed, the Act. On the Second District 122— 2.1(a)(2) holding 10-day that the provision service of section 122— Redmond, mandatory. App. 3d Crane, (2002), the Second distinguished District holding its earlier in Redmond and held that a 2.1(a)(2)’s violation of section requirement of notice within 10 days of a was harmless dismissal where defendant received the in mailing timely time to file a motion to Similarly, reconsider. as the defendant in this case received the notice of to file dismissal time a timely reconsider, motion to any error was harmless. importantly,
More panel directly rejected First District has Ross, the Second holding District’s Redmond. In App. 3d 580 this court reviewed a case in which a trial court petition on postconvietion se summarily pro dismissed defendant’s February On January 15, 2001, 90-day statutory period. within of the court had not sent the trial court discovered that the clerk then entered order to the defendant. notice the dismissal to the the clerk to send out notice of the dismissal directing an order tunc from pro The court characterized its order as nunc defendant. argued that the trial January appeal, 2001. On the defendant 2.1(a)(2) provision court’s failure to meet the notice subsection 122— holding rendered the on the in Redmond. dismissal void based out that the court in rejected argument, pointing This court holding supreme explicit Redmond did not court’s discuss Porter, requirement order that the written 2.1(a) “directory” rather than interpreted section had be *13 122— Ross, mandatory to the of doctrine. 339 Ill. separation powers due 584, Porter, pointed at at The Ross court App. Ill. 2d 82. every provision out that the Redmond court “held that in section mandatory, 122—2.1 and the failure to defendant a writ is serve with period ten order within the time rendered the dismissal void. Red added.) mond, Ross, App. (Emphasis App. 328 Ill. 3d at 378.” holding clearly contrary holding 3d at 584. the in I This is Porter. agree holding disagree holding with the in Ross and the in Red with mond; consequently, I affirm the would court’s dismissal of postconviction petition. defendant’s majority explain they 10-day requirement
The that read the of the being mandatory “[t]o statute as because do otherwise would be to 10-day requirement meaningless render the and would leave Robinson right a remedy with but no for the violation of the statute.” 343 Ill. Cortez, In People App. 3d at 921-22. v. this court remedy considered what was available to a defendant when the postconviction petition trial court ordered a to be docketed for further consideration, but State filed its motion to dismiss more than 30 days docketing, after the 122—5 of the Act. contravention section holding supreme Cortez court considered the of our court in Howell, 117, Hendrix, 60 Ill. 2d 54 Ill. 2d (1973). cases, supreme In both of those court considered remedy what constitutional was available to defendants whose state right “prompt preliminary hearing” to a had been violated. Ill. Const. I, cases, § In noted that supreme art. 7. both court legislature “right.” had of this provided remedy for a violation cases, rejected arguments In both the defendants’ supreme dismissed, their that a holding cases should be dismissal Howell, 2d at charge remedy was not a available to the courts. 120; Owen, Hendrix, Ill. 2d at 169. Also see (2001) (defendant statutory not entitled to rescission
summary suspension although arresting of driver’s license officer report driving-under-the-influence did not arrest to the sheriffs 4(a—7) required by office as section of the Criminal Code of 107— (725 4(a—7) (West 2000))). Cortez, ILCS this court 5/107 — held that when the State fails to file its motion to dismiss within 30-day time limit in petitioner section is entitled to an evidentiary hearing only objected, where he he shows level, trial court delay filing to the State’s its motion to dismiss (2) that he suffered prejudice as the State’s failure to file a result timely Cortez, motion to dismiss. Applying case, rationale to the instant it makes sense that if a defendant can prejudice show that he suffered due to the failure to receive a notice of entry, the dismissal within 10 petition should be remanded for further 122—4 pursuant consideration sections through 122—6 of the Act. As the defendant in this case has suffered prejudice, he should not any be entitled to relief.
I also disagree majority’s holding with the that this case should be remanded to the trial court. Our review of a trial court’s dismissal of a postconviction petition evidentiary hearing without an is plenary. People Rissley, 206 Ill. 2d Rissley While was a capital case and consequently postconviction involved a dismissal of a stage, at the the supreme specifically second court has held that our review of a of a postconviction petition dismissal Coleman, also plenary. People v. 387-88 This find, good position court is as the trial court to as the majority have, that the *14 this case is “defective on face.” 343 Ill. App. 3d at 919. I
Finally, disagree majority’s with the characterization of our supreme Arna, holding court’s Simmons, holding being “assumptions.” based on make When we such characterization of court), holding (especially higher another court’s that of a we should explain doing our basis for so. notes that victims’ prior history. argues attorney had a criminal Robinson also his expert testify spent should have secured a to about far firearms how al- casings ejected shell are from automatic similar to those weapons legedly argues used Robinson He that there was by and Wilson. why there found the street explanation casings as to were shell across shooting standing, none the victims. allegedly but where Robinson was a war- argues Robinson also removal from his home without his rant, police lineup in a by police detention and participation to argues Robinson that a motion constituted unlawful seizure. quash evidence and the arrest was made but later abandoned suppress also his by trial counsel without his consent. Robinson claims that (1) objections were trial counsel ineffective some of his was because: (2) irrelevant, by the failed to found trial court be he cross-examine (3) witnesses, in-court object improper all of the he failed to State’s Robinson identification of the defendant a witness who testified oral actually is, present any taller he failed to was than he for on arguments defendant motions. posttrial August 25, 2000, summarily post- dismissed the On trial court merit. The order patently conviction as frivolous and without 10-day period of dismissal not mailed to Robinson within was (725 Hearing Act specified in section 122—2.1 of the Post-Conviction (West 2000)). ILCS Specifically, the court clerk two 5/122—2.1 mailing error, late in Despite said order. Robinson mailed notice of in a appeal timely fashion. ANALYSIS I (Pub. argues appeal Robinson on that Public Act Act 83—942 27, 1988), November eff. which amended the Post-Conviction 83— Hearing by adding provision Act of a post- dismissal petition, single subject conviction violated the of the rule (Ill. 8(d)). § Constitution Const. art. alleged Because IV single subject violation, argues Robinson he has gist raised constitutional claim stage sufficient to survive the summary dismissal