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December 8, 1997


Appeal from Circuit Court of Livingston County. No. 95CF84. Honorable Charles E. Glennon, Judge Presiding.

Released for Publication January 6, 1998.

Honorable Frederick S. Green, J., Honorable Rita B. Garman, J. - Concur, Honorable Robert W. Cook, J. - Concur. Justice Green delivered the opinion of the court.

The opinion of the court was delivered by: Green

The Honorable Justice GREEN delivered the opinion of the court:

Section 122-2.1(a) of the Post-Conviction Hearing Act (Act) requires a court to which such a petition is directed "within 90 days after the filing and docketing of each petition" to "examine such petition and enter an order thereon pursuant to [that] Section." 725 ILCS 5/122-2.1(a) (West 1994). Section 122-2.1(a)(2) of the Act directs that if the court finds the petition is "frivolous or *** patently without merit," the court is to "dismiss the petition in a written order." 725 ILCS 5/122-2.1(a)(2) (West 1994). If the court does not dismiss the petition, the court is to order the petition "docketed for further consideration in accordance with Sections 122-4 through 122-6 [of the Act]." 725 ILCS 5/122-2.1(b) (West 1994).

Here, the circuit court did not examine the instant postconviction petition for more than 90 days after its filing and docketing because the conviction was then on appeal. Before the court examined the petition, it permitted the State to file a motion to dismiss the petition and held a hearing without following the requirements of sections 122-4 through 122-6 (725 ILCS 5/122-4 through 122-6 (West 1994)). We hold that, under the circumstances, the Act was violated when the court failed to examine the petition within the 90-day period and this, of itself, is enough to require us to reverse the order of dismissal and remand to the circuit court with directions to proceed pursuant to sections 122-4, 122-5, and 122-6 of the Act.

On October 2, 1995, defendant, Kenneth E. Dauer, was sentenced by the circuit court of Livingston County to seven years' imprisonment upon a conviction of forgery. On February 22, 1996, defendant filed in that court a petition for postconviction relief under the Act. As defendant had previously filed a notice of appeal to this court, the circuit court entered an order on February 26, 1996, directing that the postconviction petition be held in abeyance pending appeal. On August 8, 1996, this court affirmed defendant's conviction and sentence. People v. Dauer, [slip op.], No. 4-95-0785 (August 8, 1996) (unpublished order under Supreme Court Rule 23). On August 20, 1996, the State filed a motion to dismiss the petition. On September 9, 1996, this court issued its mandate of affirmance of the conviction and sentence.

On September 12, 1996, the circuit court granted defendant an extension of time to respond to the State's motion to dismiss. On September 19, 1996, defendant responded by filing an amended pro se postconviction petition, contending he was denied effective assistance of counsel at trial and a violation of due process and equal protection occurred in his sentence. On September 30, 1996, arguments were heard on the State's motion to dismiss. At the hearing, defendant requested the appointment of counsel, but the court denied his request as being "untimely" and "not necessary." The court then dismissed defendant's petition.

Defendant has appealed, contending (1) the circuit court's failure to rule on his postconviction petition within 90 days of its filing rendered the dismissal void and (2) the procedure used by the court in ruling on his petition was improper. As we have indicated, we deem the ruling within the 90-day requirement of section 122-2.1(a) of the Act absolute and reverse for that reason. We find errors in the hearing that was held but do not consider them serious enough to require reversal, as no argument was made that the petition was not "frivolous or patently without merit."

In regard to the late action of the circuit court in examining the petition, we recognize that putting the petition in abeyance until the appeal was decided was not an unreasonable thing to do. However, we are aware of no case that has permitted a delay in the 90-day rule of section 122-2.1(a) of the Act, however reasonable such an action might be. In People v. Porter, 122 Ill. 2d 64, 85, 521 N.E.2d 1158, 1166, 118 Ill. Dec. 465 (1988), the court held that the then 30-day provision of section 122-2.1(a) was "mandatory" rather than directory and failure of compliance required that the petition be docketed for proceedings under sections 122-4 through 122-6 of the Act. In People v. Tarnow, 249 Ill. App. 3d 797, 800, 619 N.E.2d 860, 862, 189 Ill. Dec. 159 (1993), under that theory, a one-day delay past the end of the then 30-day period by the circuit court in examining a postconviction petition and issuing an order of summary dismissal vitiated that order. See People v. Jett, 211 Ill. App. 3d 92, 96, 569 N.E.2d 1152, 1154, 155 Ill. Dec. 541 (1991); People v. Phillips, 183 Ill. App. 3d 417, 421, 539 N.E.2d 804, 806, 132 Ill. Dec. 241 (1989).

As a response to defendant's reliance upon Porter and its progeny in holding the 90-day limit mandatory, the State contends that strict rule was negated by the decision in People v. Gaultney, 174 Ill. 2d 410, 675 N.E.2d 102, 221 Ill. Dec. 195 (1996). We discuss that case in more detail later. That decision held that where, as here, a motion to dismiss a postconviction petition was filed before the court had made its examination of the petition required by section 122-2.1(a) of the Act, the rights of the defendant are not necessarily violated if, in making its ruling, the court places little or no reliance on the motion to dismiss. Gaultney, 174 Ill. 2d at 422, 675 N.E.2d at 108. Here, the State reasons, by analogy, that if the Gaultney court requires only substantial compliance with the provisions of the Act involved there so that the defendant is not substantially prejudiced, a similar rule is applicable to the 90-day provision. We do not agree with the analogy drawn by the State.

The Gaultney opinion cites Porter favorably in several places. If Gaultney was intended to present a broad rule that would counter Porter, the court would likely have so stated. Moreover, a ruling that reasonable compliance with the 90-day rule is all that is required would be unworkable. The idea of not deciding anything about the postconviction petition until the appeal was decided was not an unreasonable idea; however, if the court could properly do that, when would the 90-day period begin to start? Would it begin when the appellate court decided the case or when the mandate was issued?

Section 122-5 of the Act provides that when the circuit court makes an order pursuant to section 122-2.1(b) of the Act, within 30 days of the order or "within such further time as the court may set, the State shall answer or move to dismiss." 725 ILCS 5/122-5 (West 1994). Thus, when the drafters of the Act wished for the time schedule to be flexible, the drafters so stated. The Act sets forth a scheme whereby summary action must be taken shortly if it is to be done and, once that deadline is past, the matter can proceed at a pace set by the court. We conclude that the 90-day period is still mandatory and the order of dismissal after the end of that period must be set aside.

In regard to defendant's contention that reversible error resulted from the circuit court's proceeding to rule after the State had filed a motion ...

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