Appeal from the Circuit Court of Cook County. Honorable James B. Linn, Judge Presiding.
The opinion of the court was delivered by: Justice Hartman
Following a bench trial, petitioner Anthony Adams was found guilty of first-degree murder, upon the principle of accountability, for the shooting death of Clifford Ray and sentenced to 30 years in prison. Petitioner appealed contending that: (1) the circuit court abused its discretion in granting the State's request for an extension of the speedy trial term in order to procure a witness; (2) he was deprived of effective assistance of counsel when defense counsel failed to move for the dismissal of the charges based on speedy trial grounds; and (3) the State failed to prove him guilty beyond a reasonable doubt. On December 30, 1999, his conviction was affirmed. People v. Adams, No. 1-97-4313 (December 30, 1999) (unpublished order under Supreme Court Rule 23).
On July 24, 2000, petitioner filed a pro se post-conviction petition which alleged that: (1) the State failed to prove that he had "specific concurrent intent"; (2) the circuit court erroneously restricted his right to cross-examine a witness; and (3) he received ineffective assistance of counsel in that his trial attorneys did not prepare adequately for trial, did not prepare an intelligent defense, did not assess properly the strength of the State's case, did not prepare or call petitioner to testify, did not object to the State's extension motion, did not keep an accurate calculation of the trial term, did not move to dismiss the charges based on speedy trial grounds, and did not file a severance motion. The half sheet indicates that the petition was summarily dismissed on September 1, 2000. Petitioner claims he never received notice of that dismissal. On December 5, 2000, petitioner filed an "amendment to post conviction petition" reiterating only his argument that defense counsel was ineffective for failing to move to dismiss the charges based on speedy trial grounds, which was denied on December 13, 2000. Petitioner unsuccessfully moved for reconsideration of the denial of his post-conviction petition. On appeal, petitioner contends that the court erred in summarily dismissing his petition where the dismissal was not until four months after the filing of the petition in violation of section 122-2.1 of the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-2.1 (West 2000)). He also claims that he set forth the gist of a constitutional claim when he alleged that his trial counsel was ineffective for failing to prepare and present his case properly.
Petitioner first contends that the summary dismissal of his petition four months after the original filing violated section 122-2.1(a) of the Act (725 ILCS 5/122-2.1(a) (West 2000), which requires the circuit court to examine and rule upon a post-conviction petition within 90 days after the petition has been filed and docketed. The 90 day period set forth in section 122-2.1(a) is mandatory. People v. Porter, 122 Ill. 2d 64, 521 N.E.2d 1158 (1988) (Porter); People v. Smith, 312 Ill. App. 3d 219, 726 N.E.2d 776 (2000).
According to petitioner he originally filed his petition on July 24, 2000. He argues that "the same pro se petition [the July 24 petition] was summarily denied on December 13, 2000." The record makes clear, however, that the July 24 petition was summarily dismissed on September 1, 2000, well within the 90 day time requirement. *fn1 Without merit is petitioner's claim that "no evidence exists that the petitioner sent in an additional petition, just that it was docketed again in December 2000." Petitioner's handwritten "amendment to post-conviction petition" was notarized on November 27, 2000, received on December 4, 2000, and filed on December 5, 2000. It was this amended petition that was denied on December 13, 2000.
As to petitioner's claim that he never was notified of the September 1, 2000 dismissal, nothing in the record indicates that such notice was ever sent to petitioner. Section 122-2.1(a)(2) also provides: "[i]f the petitioner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry." 725 ILCS 5/122-2.1(a)(2) (West 2000) (section 122-2.1(a)(2)).
The State argues that the notice provision is not mandatory, but directory and, therefore, failure to comply with the provision does not require reversal. In support of this contention the State cites Porter where the supreme court found that the provision of the Act requiring the dismissal of a petition to be in a written order specifying the findings of fact and conclusions of law, was not mandatory. The court found that an interpretation of section 122-2.1 as to the entry of a written order and its contents as mandatory would violate the doctrine of separation of powers. The court also noted that "the statute merely directs that the court's written order specify its findings of fact or conclusions of law in order to facilitate appellate review of the court's dismissal." Porter, 122 Ill. 2d at 81-82.
An interpretation of the notice provision of section 122-2.1(a)(2) as mandatory does not pose a similar separation of powers problem. Moreover, unlike the written order requirement, the notice requirement is not for the benefit of the reviewing court; rather, the purpose is to protect the petitioner's right to appeal. In People v. Redmond, 328 Ill. App. 3d 373, 767 N.E.2d 838 (2002) (Redmond), the Second District found that the notice provision of section 122-2.1(a)(2) was mandatory. The court noted that section 122-2.1(a)(2) clearly provides that a petitioner "shall" be served with the dismissal order by certified mail within 10 days of the entry of the order. The word "shall" generally is indicative of mandatory intent. Mandatory intent also is indicated where a statute prescribes the result that will occur if the specified procedure is not followed. Porter, 122 Ill. 2d at 85. The Act expressly provides that if a petition is not dismissed pursuant to section 122-2.1, it must be docketed for further consideration in accordance with sections 122-4 through 122-6 of the Act (725 ILCS 5/ 122-4 - 5/122-6 (West 2000)). 725 ILCS 5/122-2.1(b) (West 2000). The court held that "the failure to serve defendant with the order dismissing his petition within the time frame mandated by section 122-2.1(a)(2) constituted a failure to comply with the statute and rendered the trial court's order of dismissal void." Redmond, 328 Ill. App. 3d at 378.
Therefore, because the petition was not dismissed within the statutorily mandated 90 days, the court vacated the dismissal and remanded for further consideration of the petition under sections 122-4 through 122-6 of the Act (725 ILCS 5/122-4 - 122-6 (West 2000)). The Second District did not consider the substance of the defendant's petition nor did it address the State's argument that because the post-conviction petition was meritless, a remand for further proceedings would be an unnecessary waste of judicial resources.
As in Redmond, petitioner's failure to receive timely notice of the September 1, 2000 dismissal of his petition makes this case a candidate for remand for further proceedings under the Act. Unlike Redmond, however, the substance of the petition and the amendment to the petition reveal that remand is not necessary under the facts of this case because the issues raised are determinable as a matter of law. The original petition and the "amendment to post-conviction petition" raise similar issues which, as discussed more fully under point II, are either waived or res judicata. Under such circumstances, remand for further proceedings in this case would constitute an unnecessary waste of judicial resources.
Petitioner contends that he set forth the gist of a constitutional claim when he alleged that his trial counsel was ineffective for failing to prepare and present his case properly, specifically, that he failed: (1) to prepare and advise petitioner to testify at trial; (2) to object to the State's motion for an extension of the speedy trial term in order to procure the testimony of a material witness; (3) to file a motion to dismiss the ...