Appeal from the Circuit Court of Du Page County. No. 06-CF-1790. Honorable John J. Kinsella, Judge, Presiding.
Reversed and remanded.
The summary dismissal of defendant's postconvicion petition as frivolous and patently without merit was reversed and the cause was remanded for further proceedings, since the petition was filed and docketed on August 27, 2012, and the trial court had no authority to summarily dismiss the petition on March 15, 2013, more than 90 days later.
Kathleen T. Zellner, Douglas H. Johnson, and Nicholas M. Curran, all of Kathleen T. Zellner & Associates, P.C., of Downers Grove, for Appellant.
Robert B. Berlin, State's Attorney, of Wheaton (Lisa A. Hoffman and Kristin M. Schwind, Assistant State's Attorneys, of counsel), for the People.
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Zenoff concurred in the judgment and opinion.
The defendant, Christy Lentz, was convicted of the first-degree murder (720 ILCS 5/9-1(a)(1) (West 2008)) of her father, Michael Lentz, and was sentenced to 50 years' imprisonment. She appealed, arguing that the trial court erred in denying her motion to suppress statements, refusing to instruct the jury on involuntary manslaughter, and allowing a photograph of the victim to be published to the jury. We affirmed. People v. Lentz, 2011 IL App (2d) 100448-U.
Her subsequent petition for leave to appeal to the supreme court was denied. People v. Lentz, 962 N.E.2d 486, 356 Ill.Dec. 801 (Ill. Nov. 30, 2011).
On August 27, 2012, the defendant timely filed a postconviction petition, in which she argued that she received ineffective assistance of her trial counsel. A copy of the circuit court's computerized docket shows that the filing of the petition was entered into the circuit court's records. The next day, on August 28, 2012, the clerk sent a letter to the defendant's attorney, informing him that a $40 filing fee was due, which could be paid by dropping off or mailing in a check. The docket reflects that the fee was paid on September 6, 2012. On January 25, 2013, the clerk of the circuit court set a hearing date of January 30 for the petition. The docket notation for that date states, " placed on call by judge[']s secretary."
On January 30, the parties appeared before the trial court, which commented that it was seeing the petition for the first time and briefly discussed the possibility that the 90-day period for initial review pursuant to section 122-2.1(a) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-2.1(a) (West 2012)) might have run. The court set the petition for status on March 15, 2013. On that date, the court entered a two-page order summarily dismissing the petition. In the order, the court found that " the 90 day time limit did not commence until January 30, 2013," because it began running when the case was " docketed," which did not occur until the petition was " placed on the call of a judge and set for hearing before that assigned judge." The court noted that, under a local rule, the hearing date on papers filed with the clerk was set at the request of the attorney filing the papers rather ...