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People v. Redmond

March 18, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MICHAEL K. REDMOND, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 98-CF-287 Honorable George J. Bakalis, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer

Released for publication March 20, 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MICHAEL K. REDMOND, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Du Page County. No. 98-CF-287 Honorable George J. Bakalis, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer

PUBLISHED

 Defendant, Michael K. Redmond, appeals from the judgment of the circuit court of Du Page County dismissing, without an evidentiary hearing, his pro se petition for relief filed pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq. (West 2000)). On appeal, defendant argues (1) his failure to receive timely notice of the initial order dismissing his petition requires a remand for further proceedings under the Post-Conviction Hearing Act; (2) Public Act 83--942 (Pub. Act 83--942, eff. November 23, 1983), which amended the Post-Conviction Hearing Act, violates the single subject rule of the Illinois Constitution (Ill. Const. 1970, art. IV, §8(d)); and (3) the imposition of a consecutive sentence by the trial court violated the ruling in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We agree with defendant's first contention. Accordingly, we vacate the judgment of the circuit court and remand the cause for further proceedings.

In February 1998, defendant was charged by indictment in the circuit court of Du Page County with aggravated battery (great bodily harm) (720 ILCS 5/12--4(a) (West 1998)) and aggravated battery to a peace officer (720 ILCS 5/12--4(b)(6) (West 1998)). While defendant was out on bond for the Du Page County offenses, he was charged with and pleaded guilty to aggravated battery in the circuit court of Cook County. The Cook County court sentenced defendant to three years' imprisonment.

Meanwhile, following a bench trial, the circuit court of Du Page County convicted defendant of both aggravated battery (great bodily harm) and aggravated battery to a peace officer. The trial court sentenced defendant to five years' imprisonment on each conviction, the sentences to run concurrently. In addition, the court ordered defendant's sentences to run consecutively to the three-year prison term imposed by the circuit court of Cook County. This court affirmed on direct appeal. People v. Redmond, No. 2--99--0301 (2000) (unpublished order under Supreme Court Rule 23).

On February 10, 2000, while his direct appeal was pending, defendant filed a pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2000)). Defendant alleged that trial counsel was ineffective for failing to raise the affirmative defense of involuntary intoxication. On February 28, 2000, the trial court dismissed defendant's petition as frivolous and patently without merit (see 725 ILCS 5/122-2.1(a)(2) (West 2000)) because the record disclosed that trial counsel did raise the affirmative defense of involuntary intoxication. Apparently, defendant was never served with the order of dismissal by certified mail within 10 days of its entry as mandated by section 122--2.1(a)(2) of the Act (725 ILCS 5/122--2.1(a)(2) (West 2000)).

On June 23, 2000, defendant filed a pro se motion to vacate the judgment dismissing his petition for post-conviction relief. Defendant asserted that he did not receive notice of the dismissal as required by section 122--2.1(a)(2) of the Act. According to defendant, he learned of the status of his petition only in May 2000, when the Department of Corrections (DOC) instituted proceedings against him to revoke 180 days of good-conduct credit for filing a frivolous petition. See 730 ILCS 5/3--6--3(d) (West 2000). Eventually, the DOC revoked 180 days of good-conduct credit. Defendant claimed that his failure to receive notice of the dismissal deprived him of his right to appeal and resulted in the revocation of 180 days of good-conduct credit. Defendant sought an order (1) vacating the February 28, 2000, order and (2) restoring the 180 days of good-conduct credit revoked by the DOC.

On July 21, 2000, defendant appeared before Judge Bakalis. At the hearing, the State recognized that defendant had not been sent timely notice of the February 28, 2000, order of dismissal. To give defendant an opportunity to appeal the dismissal of his post-conviction petition, the State suggested that the February 28, 2000, dismissal order "relate forward" to July 21, 2000. Judge Bakalis agreed, and he informed defendant of the basis for the denial of the petition and that defendant had 30 days from the date of the hearing (July 21, 2000) to file a notice of appeal. Defendant was presented with copies of the February 28 and July 21, 2000, orders in open court. The remaining relief requested by defendant in his motion to vacate judgment was denied. On August 8, 2000, defendant filed a pro se notice of appeal. Subsequently, the office of the State Appellate Defender was appointed to represent defendant on appeal.

Defendant first argues that this cause must be remanded for further proceedings pursuant to the Act because he was never sent a notice of the order dismissing his petition for post-conviction relief by certified mail within 10 days of the order's entry as mandated by section 122--2.1(a)(2) of the Act. Defendant further notes that the Act requires the trial court to enter an order on a petition for post-conviction relief within 90 days after the petition is filed and docketed (725 ILCS 5/122--2.1(a) (West 2000)) and that he filed his petition on February 10, 2000. Defendant argues that, by "relating forward" the dismissal order, the trial court effectively entered the final judgment on July 21, 2000. Defendant reasons that, since more than 90 days elapsed between the date he filed the petition and the date the court entered the final order denying it, the court could not properly dismiss the petition as frivolous and patently without merit. As a result, defendant seeks a reversal of the trial court order summarily dismissing his petition and a remand for further proceedings pursuant to sections 122--4 through 122--6 of the Act (725 ILCS 5/122--4 through 122--6 (West 2000)).

The State responds that although the original dismissal order "related forward" to July 21, 2000, it did not change the fact that the order was originally entered on February 28, 2000, which was within 90 days of the date defendant's petition was filed. The State asserts that the purpose of the 10-day service provision is to protect a defendant's right to appeal. The July 21, 2000, order, the State asserts, accomplished this goal. It rectified the failure to notify defendant of his right to appeal and permitted defendant to appeal. In any event, the State ...


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