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People v. Ross

May 28, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GEORGE ROSS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Dennis J. Porter, Judge Presiding.

The opinion of the court was delivered by: Justice Wolfson

UNPUBLISHED

Following a jury trial, defendant George Ross was found guilty of first degree murder and sentenced to 38 years in prison. The judgment was affirmed on direct appeal. People v. Ross, Nos. 1-97-4116 and 1- 98-0968 (cons.) (1999) (unpublished order under Supreme Court Rule 23). Defendant subsequently filed a pro se petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 et seq. (West 2000)), which the trial court summarily dismissed as frivolous and patently without merit. On appeal, defendant contends that the summary dismissal was void because the trial court failed to rule on his petition within 90 days and did not notify him of the dismissal order within 10 days after its entry, as required by the Act. Defendant also contends that Public Act 83-942, eff. November 23, 1983, which amended the Act to provide for summary dismissals, violates the single subject clause of the Illinois Constitution (Ill. Const. 1970, art. IV, §8(d)). We affirm.

Defendant does not challenge the sufficiency of the evidence to support his conviction. The State's evidence showed that at about 2:30 p.m. on June 10, 1996, several people, including the victim Ryan Smith, were walking near a high school located at May and 103rd Streets in Chicago. Rodney Daniels and Shaun Jackson testified that defendant was standing in a bank parking lot across the street from the high school. Daniels and Jackson testified that Jonathon Johnson handed defendant a gun and told him to shoot. Defendant fired the gun once into the air and then shot five or six times into the crowd across the street. Smith fell to the ground, bleeding from a gunshot wound to his head. He was taken to the hospital where he was pronounced dead. Daniels and Jackson identified defendant in a police lineup and at trial as the shooter.

Officer Louis Watkins testified that at about 2:30 p.m. on June 10, 1996, he was on furlough and washing his truck near May and 103rd Streets. Officer Watkins heard gunshots, looked, and saw defendant firing a gun. Defendant was still holding the gun when he ran toward Officer Watkins. Officer Watkins drew his gun and identified himself as a police officer. Defendant fled the scene, while co-defendant Johnson dropped to the ground. Shortly thereafter, police arrived and spoke with Johnson. The police officers then went to defendant's home and arrested him.

Following closing arguments, the jury found defendant guilty of first degree murder. He was sentenced to 38 years in prison.

Defendant appealed his conviction and his assistant public defender filed a motion for leave to withdraw, pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), in which he argued that no issues of merit exist warranting argument on appeal. This court found no issues of arguable merit, granted the public defender's motion for leave to withdraw, and affirmed the judgment. People v. Ross, Nos. 1-97-4116 and 1-98-0968 (cons.) (1999) (unpublished order under Supreme Court Rule 23).

Defendant filed a pro se post-conviction petition on October 30, 2000, alleging ineffective assistance of trial counsel. The trial court found that defendant's petition was time-barred because he did not file his petition within the statutory time limit. The court nevertheless addressed defendant's claims and found them to be frivolous and patently without merit. The written order summarily dismissing defendant's post-conviction petition was dated January 19, 2001, but file-stamped February 1, 2001. The report of proceedings from February 1, 2001, shows that the trial court made the following statements:

"This order is signed. It is down here from January the 19th. This will be, the petition for post-conviction relief is dismissed, and it is frivolous and patently without merit, pursuant to Chapter 725, Illinois Compiled Statutes, Act 5, Section 122-2. A, Parentheses 2. That will be, nunc pro tunc from 1-19-01.

I signed the order on the 19th, and they were in the court file. Evidently, the person on the 19th, didn't realize they were in there, so that is why it got today. So the clerk is directed to mail a certified copy of the order to the defendant within 30 days from today's date."

On February 6, 2001, a copy of the order dismissing his post-conviction petition was mailed to defendant. On July 18, 2001, this court granted defendant's motion for leave to file a late notice of appeal.

Defendant appeals, contending that the trial court's summary dismissal of his pro se post-conviction petition is void because the court failed to enter the dismissal order within 90 days of the petition being filed as required by section 122-2.1(a) of the Act.

Section 122-2.1(a) of the Act provides that "[w]ithin 90 days after the filing and docketing of each petition the court shall examine such petition and enter an order thereon pursuant to this Section." 725 ILCS 5/122-2.1(a) (West 2000). This statutory period of 90 days is mandatory, and failure to meet this requirement renders the dismissal void. See People v. Porter, 122 Ill. 2d 64, 84-85, 521 N.E.2d 1158 (1988).

In this case, the record indicates that the trial court examined defendant's pro se post-conviction petition and summarily dismissed it on January 19, 2001, within the 90-day statutory period. However, the trial court read the written order into the ...


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