Appeal from the Circuit Court of Cook County. No. 87 CR 9870 The Honorable Presiding Judge.
The opinion of the court was delivered by: Justice Buckley
This is an appeal from the trial court's dismissal of defendant Geraldine Smith's pro se petition for post-conviction relief and its subsequent denial of defendant's motion to vacate the dismissal. Defendant raises the following issues: (1) whether the trial court violated the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1996)) when it dismissed defendant's pro se post-conviction petition as frivolous and without merit; and (2) whether the trial court violated defendant's right to due process of law when it dismissed her pro se post-conviction petition on a status court date in the absence of defendant and appointed counsel.
On February 20, 1991, following a jury trial at which defendant was convicted of murder and conspiracy to commit murder, defendant was sentenced to death. On June 27, 1995, while her appeal was pending in the Illinois Supreme Court, defendant filed a pro se post-conviction petition in the Cook County circuit court.
Because defendant was under a sentence of death pursuant to section 122-2.1(a)(1) of the Post-Conviction Hearing Act, State Appellate Defender Mary Elizabeth Kopko was appointed to represent her in post-conviction proceedings. 725 ILCS 5/122-2.1(a)(1)(West 1996). On June 5, 1996, attorney Kopko appeared on behalf of defendant for a status call and advised the trial court that the Illinois Supreme Court had taken defendant's case on direct appeal and was currently in the process of setting a briefing schedule. Attorney Kopko requested a continuance and the matter was continued by agreement to September 16, 1996.
On September 9, 1996, the State filed a motion to dismiss defendant's pro se post-conviction petition. At the next court call, on September 16, 1996, Assistant State's Attorney (ASA) Michael Corkell informed the court that the case had been argued the week before in the supreme court and that "[t]he issue [of the post-conviction petition] is going to be kind of moot until the Illinois Supreme Court renders its decision." The case was then continued until December 11, 1996. The record does not contain a transcript of the December 11, 1996, proceedings; however, the docket sheet shows a continuance by agreement until March 6, 1997.
On March 6, 1997, attorney Kopko informed the court that the supreme court had not yet issued its decision. The case was then continued by agreement until April 14, 1997. On April 14, 1997, the case was continued by agreement until May 20, 1997. The record does not contain transcripts of the May 20, 1997, proceeding; however, the docket sheet shows a continuance by agreement until July 22, 1997. Again, the record does not contain transcripts of the July 22, 1997, proceeding; however, the docket sheet shows a continuance by agreement until September 23, 1997.
In the meantime, on June 19, 1997, the supreme court issued its opinion affirming defendant's conviction, but reversing her death sentence and remanding the case for imposition of a sentence other than death. People v. Smith, 177 Ill. 2d 53 (1997). On September 23, 1997, ASA Corkell appeared before the trial court and informed the trial court that the supreme court had vacated defendant's death sentence. The following then occurred:
"THE COURT: *** All right. Well, so she really doesn't have any standing as to this conviction [sic] Petition.
MR. CORKELL: She is not under sentence.
THE COURT: So, the Petition will be dis-missed, based on the law in Illinois regarding this issue."
Defendant's appointed counsel, Attorney Kopko, was not present when the trial court dismissed the pro se post-conviction petition. After the regular court call was heard, an assistant public defender appeared on behalf of Attorney Kopko and was informed by the trial court that the petition had been dismissed.
On October 1, 1997, defendant filed a motion to vacate the dismissal and reinstate the post-conviction petition. At the hearing on the motion, which took place on October 7, 1997, the following occurred:
"MS. KOPKO: *** This is a case where she was--the supreme court remanded it for senten-cing. We're asking that the dismissal [of the post-conviction petition] be vacated and it be set for status and filing of any post con--or amended post-conviction [petition].
THE COURT: All right. Well, since it is no longer a sentence of death I still have the right within a certain amount of time to review the petition to determine if it's friv-olous and ...