The trial court’s sua sponte dismissal of defendant’s postconviction petition after the mandatory 90-day period was reversed and the cause was remanded for second-stage proceedings on the petition, and based on section 411.2(a)(3) of the Illinois Controlled Substances Act, which provides for a $1, 000 assessment for a Class 2 felony, the sentencing judgment showing a $2, 000 drug assessment for each of defendant’s two Class 2 felonies of unlawful delivery of a controlled substance was corrected to show a $1, 000 drug assessment for each conviction.
Appeal from the Circuit Court of Adams County, No. 09-CF-270; the Review Hon. Chet W.Vahle, Judge, presiding.
Michael J. Pelletier and Thomas A. Lilien, both of State Appellate Defender's Office, for appellant.
Jonathan H. Barnard, State's Attorney, of Quincy (Patrick Delfino, Robert J. Biderman, and Luke McNeill, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Panel PRESIDING JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Appleton and Knecht concurred in the judgment and opinion.
STEIGMANN PRESIDING JUSTICE
¶ 1 In October 2009, a jury convicted defendant, Erik C. Longbrake, of two counts of unlawful delivery of a controlled substance (720 ILCS 570/401(d) (West 2008)). The trial court later sentenced him to concurrent five-year prison terms. As part of his sentence, the court ordered defendant to pay a $2, 000 drug assessment for each count. In September 2011, this court affirmed defendant's convictions and sentences, but we did not issue our mandate until January 18, 2012. People v. Longbrake, 2011 IL App (4th) 100030-U.
¶ 2 On October 13, 2011, defendant filed a petition for postconviction relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2010)). On January 6, 2012, the trial court sua sponte dismissed defendant's petition with leave to refile, concluding it was not ripe for review because defendant's appeal was still pending and the trial court did not have access to the trial transcripts. Following this court's mandate, defendant refiled his postconviction petition on February 23, 2012. The court dismissed this petition on May 16, 2012, finding it was patently without merit and failed to state the gist of a constitutional claim.
¶ 3 Plaintiff appeals, arguing that the trial court erred by (1) sua sponte dismissing his October 13, 2011, postconviction petition without prejudice and with leave to refile and (2) dismissing his petition as frivolous and patently without merit on May 16, 2012, more than 90 days after he first filed his petition. Defendant also argues that the $2, 000 drug assessment for each count must be reduced to $1, 000 each. We agree and reverse.
¶ 4 I. BACKGROUND
¶ 5 In October 2009, a jury convicted defendant of two counts of unlawful delivery of a controlled substance (720 ILCS 570/401(d) (West 2008)). In January 2010, after denying his posttrial motion, the trial court sentenced defendant to concurrent five-year prison terms. The court also ordered a $2, 000 assessment for each of the two drug convictions. In September 2011, this court affirmed defendants convictions and sentences. Longbrake, 2011 IL App (4th) 100030-U. Appellate counsel immediately filed a petition for leave to appeal, which the Illinois Supreme Court denied on November 30, 2011. People v. Longbrake, No. 113155 (Ill. Nov. 30, 2011).
¶ 6 On October 13, 2011–while his appeal was pending–defendant filed a petition for postconviction relief pursuant to the Act. On January 6, 2012, the trial court entered an order dismissing the petition sua sponte with leave to refile, finding defendant's petition was not ripe for consideration because the appellate court had not yet filed its mandate or returned the transcript to the trial court, thus precluding the court from reviewing the transcript to consider the allegations of constitutional error.
¶ 7 On January 18, 2012, this court issued our mandate ending defendant's appeal. On February 23, 2012, defendant refiled his postconviction petition. On May 16, 2012, the trial court entered a handwritten order denying defendant's petition and noting a formal order would follow. On June 12, 2012, a formal order was entered that dismissed the ...