*1 Club, Inc., Ill. App. authoring Charlie 3d issue, justice sidesteps explaining plaintiffs allegations prevent are predicated defendant’s failure spread fire. I believe is a Simply- that this distinction difference. special absent a put, relationship, liability a landowner has no protect persons. Hill, others from the criminal acts of third authoring justice’s at 758. The opinion legal abandons this principle liability holds that may imposed upon be protect plaintiff for his failure to fire from the that was started an act of arson. I believe such a is contrary conclusion to the law. reasons,
For all of these I would entry judg- affirm the of summary ment behalf of the defendant. ILLINOIS,
THE PEOPLE OF THE STATE OF Plaintiff-Appellee, v. VASQUEZ,Defendant-Appellant. HELDER C. District
Second No. 2 — 98—0680 Opinion September 29, filed *2 J., dissenting part. RAPP Johnson, Joseph Appellate
G. and Weller Linda A. both of State Defender’s Office, Elgin, appellant. of for (Martin Waller, Attorney, Waukegan Moltz,
Michael J. State’s of P. of Attorneys Office, counsel), Appellate Prosecutor’s of and William R. Brandstrader, Prospect Heights, People. of for the
JUSTICE opinion HUTCHINSON delivered the of the court: Defendant, Helder Vasquez, appeals dismissing pe- C. the order his 2.1(a)(2) postconviction tition for relief pursuant to section of 122— (the Act) (725 2.1(a)(2) Hearing Post-Conviction Act ILCS 5/122 — (West 1998)). Defendant contends that his petition improperly was and dismissed should have pursuant been considered to sections (725 through 122—4 of through 122—6 the Act ILCS 122—6 5/122—4 (West 1998)) because the trial court failed to petition dismiss his days filing. that, Defendant also contends if this cause court, Judge Bridges remanded to the trial disqualified should be from participation. further We reverse and remand. July 28, 1993,
On a jury guilty found defendant degree of first (720 1(a)(2) (West 1992)). 6, murder ILCS On December 5/9 — motions, the trial court denied defendant’s entered verdict, judgment jury’s on the and years’ sentenced defendant to 28 incarceration. On direct appeal, this court affirmed defendant’s convic (1995) (un tion and sentence. v. Vasquez, 23). published order Supreme under Court Rule 21, 1996, On June defendant filed a petition pursuant 28, 1996, to the Act. On June the trial court dismissed the petition trial court did not address the merits of
defendant’s finding made no regarding the “frivolous or 2.1(a)(2) patently without merit” standard of section of the Act (725 2.1(a)(2)(West 1998)). ILCS Defendant appealed the trial 5/122 — court’s ruling.
This court found that because the Illinois Supreme Court had granted defendant leave file an untimely petition for leave to peal, his timely if filed within years three (1998) of his conviction. People Vasquez, 2 — 96—0941 (unpublished 23). order under Supreme Court Rule Consequently, this court re versed the trial court’s dismissal and remanded the cause for further (1998) proceedings. People Vasquez, 2 — 96—0941 (unpublished order 23). under Supreme Court Rule On May 1998, the trial court dismissed as frivolous and patently without merit. 2.1(a)(2)(West 1998). See 725 ILCS Defendant timely appeals. 5/122 — appeal, defendant contends that the trial court improperly 2.1(a)(2) dismissed his under section because a trial court may only summarily dismiss a petition under that section within days filing. argues Defendant his should have been pursuant considered 122—4 sections through 122—6 of the Act. We agree.
Section 122—2.1 provides of the Act part: relevant “(a) Within 90 filing after the and docketing of each the court shall examine such and enter an order thereon pursuant to this Section.
(2) If
petitioner
the
imprisonment
is sentenced to
and the court
petition
determines the
patently
merit,
is frivolous or is
it
***
petition
shall dismiss the
***.
(b)
If the
is not
pursuant
Section,
dismissed
to this
the
court shall order
to be docketed for further consider-
ation in accordance with
122—4 through
Sections
122—6.” 725
(b) (West 1998).
2.1(a)(2),
ILCS 5/122—
The 90-day provision of section
mandatory
is
rather
discretionary,
than
and a trial court’s failure
90-day
to act within the
period requires the court to docket the petition
proceed
for further
ings under
through
sections 122—4
122 — 6 of the Act.
People
See
v.
(1997).
Dauer,
329,
App.
3d
332
Saunders,
In People v.
261 Ill. App.
(1994),
30,
filed a
petition on December
1991. On
7, 1992,
December
the trial court improperly dismissed the petition as
Saunders,
untimely.
673 2.1(a)(2), to do so at the power it was without section 122 — remand.” Saun 7, 1992,] hearing, may and it not do so on [December Therefore, entitled to ders, the defendant was App. 261 Ill. 3d at 706. through 122—4 122—6 of petition under sections consideration of his Saunders, 3d at 706. App. the Act. 261 Ill. case, five after defendant’s However, filed, the trial court dismissed no find and made did not consider the merits of 2.1(a)(2). matter returned When this
ing required by section 122— remand, summarily the trial court dismissed to the trial court on The Act allows sum without merit. must be petition, a but such action mary action on Dauer, 3d at shortly filing App. taken after it is to be done. Ill. petition a second 332. When the trial court dismissed defendant’s time, 90-day summary it acted well deadline for dismissal past Dauer, 332; authority. 3d at App. therefore acted without Ill. Saunders, Accordingly, hold App. 3d at 706. we that the Ill. 2.1(a) mandatory, filing rule of section is and the of a notice of toll or extend the section. provisions does not defendant was entitled to have his considered Consequently, Act, through under 122—4 122—6 of the and we remand this sections Saunders, purpose. cause for that 261 Ill. 3d at 706. argues next that he entitled to a substitution of Defendant judges Judge Bridges participated on remand because assistant in Attorney this matter. Defendant did not raise this issue below; however, likely again will remand as this matter arise we Generally, right will address it here. there is no absolute to a substitu judge postconviction hearing. People Madej, tion of a at a 177 Ill. 2d However, judge’s might a reason impartiality when herself, ably including questioned judge disqualify be shall himself or in in proceedings judge lawyer in which “the served as a the matter (155 63(C)(1)(b)). “matter controversy” phrase 2d R. 63(C)(1)(b) controversy” currently pending in Rule means the case court, automatically if he or judge disqualified before the and a is not represented prosecution. she the State an unrelated Storms, 155 Ill. appears Judge Bridges actively participated
It as an assis Attorney original prosecution tant State’s in the of defendant. On 28, 1993, George Bridges April assistant State’s named single at a informed the trial court that appeared hearing, status *4 penalty, State had would seek the death yet not determined whether it sought proceeding and a continuance. A is not a direct postconviction appeal independent, or a continuation of a but col- criminal case is Hawkins, attack on a of judgment lateral conviction. See However, a postconviction Ill. 2d we find proceed to the ing sufficiently original is related that it prosecution falls 63(C)(1)(b). scope Judge of Rule Consequently, Bridges appeared 63(C)(1)(b) matter, State in disqualifies for the this Rule fur him from in participation judge ther as a this matter. note that the Judge Bridges’
We
record reveals no indication that
was
decision
motivated
bias or
facts
based on
outside the record.
Storms,
(finding
potential
For the order of the Lake circuit County order dismissing postconviction reversed, court petition is and this matter is remanded for further proceedings not inconsistent opinion. with this with
Reversed remanded directions.
GALASSO,J., concurs. in dissenting part:
JUSTICE RAPR majority’s holding regarding I dissent from the application strict of the section of the limitation of Post-Conviction (the Act) (725 2.1(a) (West 1998)) Hearing Act ILCS 5/122 — of an fil appeal context of the dismissal of a ing deprives jurisdiction a notice of a trial over appeal court subject scope substantive matters within of the of the re appeal. A.P., trial App. 3d When the court in our case being untimely dismissed defendant’s decision, timely and defendant the trial was appealed jurisdiction If the rulings petition. to make further or trial court determined that defendant’s was frivolous appeal without merit defendant would pending, while certainly appeal upon have another meritorious based the trial court’s jurisdiction. a a trial rule Imposing requirement lack of court to pending on the merits of a while majority, petition, suggested by regarding timeliness of unnecessary appeals. result would
If defendant the dismissal of a appeals *5 90-day period the limitations will untimely, reality the is that being on the issue. appellate before the court rules certainly expire almost period. most of the Further- briefing alone will exhaust The schedule majority suggests more, 90-day the limitation as the application the of evaluation of process would allow defendants to circumvent fhe view, my legislature set out in the Act. In the postconviction petitions 90-day limita- enacting intended such a result in the could not have 2.1(a) of the Act. tion of section 122— tolling the
Instead, appeal by I the taken defendant as construe from the Upon docketing the mandate 90-day period. limitations untimely, reversing court the initial dismissal of the pellate run I find 90-day period begin support the limitations would anew. People Douglas, App. interpretation for this District, exten Court, recognized the Fourth Douglas, Appellate 90-day the when the defendant filed an period sion of limitations amended The reasoned: postconviction petition. 2.1(a), proposed defendant’s construction of section “[U]nder 122— day 90-day could file an on of the defendant amended only days
period, giving thus the trial court two to examine and upon petition. Clearly, legislature rule the amended could not legislature have intended such an absurd result. We note that the give trial exam has instead shown its intent to courts more time to upon petitions ine and rule when it amended section (effective 1993) January 122—2.1 of the Act to increase ruling amount of time for such examination and from 30 to 90 days.” (Emphasis original.)Douglas, at Here, original post- once defendant dismissal of his appealed untimely, jurisdic- conviction the trial court was divested of tion to decide whether the was frivolous or Any by ruling merit. effort the trial court to make a on the appeal regarding pending while the timeliness was would have been improper. of the trial appeal,
This defendant has now had a direct untimely, and now court’s dismissal of his rigid 90-day period this limitation appeal. application yet an suggested by majority potentially give will appellate economy other bite of the Judicial would have been apple. better served had the trial court examined and ruled 2.1(a) under section of the Act at the same time as it ruled 122— Nevertheless, I feel the better course for petition. the timeliness of this court to take the trial section would be review court’s novo finding findings since our standard of review of such is de Coleman, If our anyway. 183 Ill. 2d review revealed error the trial court I would remand the cause for not, further If proceedings. I would affirm the trial court’s section 2.1(a) dismissal of petition. I, therefore, respectfully dissent from that part of the opinion ap- plying a strict limitation in the context of an appeal of the dis- missal of a postconviction petition as untimely. However, because being remanded, cause is I concur with the majority’s holding that the trial judge should recuse himself it is determined that appeared he as an assistant in this matter. *6 SHARPNESS,
ADAM Plaintiff-Appellant, GRONDFELT, v. RANDY Defend
ant-Appellee. Second District No. 2 — 98—1562 Opinion September 28, filed