Appeal from the Circuit Court of Cook County. No. 06 CR 21390 The Honorable William J. Kunkle, Judge Presiding.
The opinion of the court was delivered by: Justice Harris
JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Cunningham concurred in the judgment and opinion.
¶ 1 Petitioner, Andre McCaskill, appeals the order of the circuit court dismissing his first-stage post-conviction petition as frivolous and patently without merit. On appeal, McCaskill contends (1) the court's summary dismissal of his petition was void for failure to enter the order within 90 days of the filing and docketing date; alternatively, the clerk failed to file and docket the petition promptly as required by statute; (2) the trial court erred in dismissing his petition because it stated a cognizable claim of ineffective assistance of appellate counsel for failing to challenge the trial court's denial of his motion to quash the arrest and suppress evidence; and (3) his petition sufficiently stated a cognizable claim of ineffective assistance of trial counsel for not allowing McCaskill to testify at trial. For the reasons that follow, we reverse the judgment of the trial court and remand for further proceedings.
¶ 3 McCaskill filed notice of his direct appeal in accordance with article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governingappeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009). McCaskill now appeals the trial court's summary dismissal of his post-conviction petition. This court therefore has jurisdiction pursuant to Illinois Supreme Court Rule 651(a) (eff. Dec. 1, 1984).
¶ 5 At McCaskill's bench trial, Lamberto Rivera testified that on August 26, 2006, he was walking in the area of South Troy and 61st in Chicago when two men confronted him. The taller offender grabbed him from behind and twisted Rivera's right arm behind his neck. Meanwhile, the shorter offender searched Rivera's pants pockets for money. Alexander Pitts testified that he sat in a parked car near the same intersection and observed a black male approach Rivera from behind. The two struggled and started coming toward Pitts' car. He honked his horn and told them to go away. Pitts then turned around and saw a shorter black male run past his car. Pitts shouted at his fiancee3 to call the police. He saw the shorter male go through Rivera's wallet and take out money. As Pitts headed toward the offenders, they ran south and then west onto 61st Street.
¶ 6 When police arrived Rivera and Pitts gave them a description of the offenders. Approximately 15 minutes later, another patrol car brought McCaskill back to the intersection for identification. Both Rivera and Pitts identified McCaskill as the taller offender.
¶ 7 The trial court found McCaskill guilty of robbery, subsequently denied his motion for a new trial, and sentenced him to 15 years' imprisonment. McCaskill filed a notice of appeal in which he argued that the identifications by Rivera and Pitts were not sufficient to prove him guilty beyond a reasonable doubt. This court, in an unpublished Rule 23 order, affirmed McCaskill's conviction in People v. McCaskill, No. 1-07-2978 (2009) (unpublished order pursuant to Supreme Court Rule 23).
¶ 8 McCaskill filed a pro se post-conviction petition. His petition was marked "Filed" by Dorothy Brown, the clerk of the Cook County circuit court, on February 16, 2010. The petition appeared on circuit court Judge Victoria A. Stewart's call list on June 2, 2010. On August 6, 2010, the trial court summarily dismissed McCaskill's petition at the first stage on the basis that it was frivolous and patently without merit. McCaskill then filed a late notice of appeal which this court allowed.
¶ 10 McCaskill contends the trial court improperly dismissed his petition because it did so more than 90 days after the clerk's office filed and docketed his petition in violation of section 122-2.1(a)(2) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-2.1(a)(2) (West 2006)). He argues that his petition was docketed on February 16, 2010, the date the clerk of the circuit court stamped "Filed" on his petition. The State, however, contends that the correct docketing date was June 2, 2010, the date McCaskill's petition was placed on Judge Stewart's call. We review an issue involving the interpretation of a statute de novo. People v. Donoho, 204 Ill. 2d 159, 172 (2003).
¶ 11 Section 122-1 of the Act states that a post-conviction proceeding "shall be commenced by filing with the clerk of the court in which the conviction took place a petition *** verified by affidavit. *** The clerk shall docket the petition for consideration by the court pursuant to Section 122-2.1 upon his or her receipt thereof and bring the same ...