2021 IL App (1st) 201016-U
SECOND DIVISION November 23, 2021
No. 1-20-1016
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) ) Appeal from the Respondent-Appellee, ) Circuit Court of ) Cook County. v. ) ) No. 95 CR 11734 JOHNNY ENGLISH, ) ) Honorable Petitioner-Appellant. ) Timothy Joseph Joyce, ) Judge Presiding. )
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Lavin and Cobbs concurred in the judgment.
ORDER
¶1 Held: We dismiss the petitioner’s appeal where the record does not establish this court’s jurisdiction.
¶2 The petitioner, Johnny English, appeals from the circuit court’s denial of his pro se request
for leave to file his second successive postconviction petition pursuant to the Postconviction
Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)). On appeal, the petitioner contends that he No. 1-20-1016
sufficiently established cause and prejudice with respect to his constitutional challenge to his 70-
year de facto life sentence, imposed for a crime he committed when he was 18 years old, under
both the eighth amendment (U.S. Const., amend. VIII) and the Illinois proportionate penalties
clause (Ill. Const. 1970, art I, § 11). For the following reasons, we find that we lack jurisdiction to
consider the petitioner’s appeal.
¶3 I. BACKGROUND
¶4 Because the record before us is voluminous and the facts of the offense are fully set out in
our order affirming the petitioner’s conviction and sentence on direct appeal (People v. English,
No. 97-2365 (unpublished order pursuant to Illinois Supreme Court Rule 23) (Feb. 19, 1999)
(English I)), we set forth only those facts and procedural history relevant to the resolution of the
issues here.
¶5 In 1995, together with codefendant James Davis, the 18-year-old petitioner was charged
with, inter alia, armed robbery, first degree murder and attempted first degree murder for his
involvement in the death of Frank Klepacki and the shooting of Casey Klepacki. The petitioner
proceeded with a bench trial, which was held concurrently with codefendant Davis’s severed jury
trial.
¶6 The following relevant evidence was adduced from the petitioner’s pre-trial confession and
the eyewitness testimony of the surviving victim, Casey Klepacki. At approximately 9:30 p.m. on
March 19, 1995, the petitioner and codefendant Davis were selling drugs outside of a house on the
west side of Chicago. Codefendant approached the petitioner, informing him he had just sold drugs
inside the house to "two white dudes" who would be "sweet victims" because they had a lot of
money and would be easy to rob. The petitioner and codefendant then determined that they would
rob the two victims, Casey and Frank, by stationing themselves outside of a gangway on either
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side of the exit. When Casey and Frank exited the building, Casey waved at the petitioner, whom
he knew from prior encounters.
¶7 The petitioner and codefendant then drew their guns, beat the victims about their heads
with the guns, and pulled them towards a porch at the back of the building. The petitioner pulled
Frank up onto the porch, forcing him to lie down. Meanwhile, codefendant, put his gun to Casey’s
head, ripped a necklace from Casey’s neck and forced him to remove his shoes and socks to look
for money. When he found none, the petitioner told Casey to remove his pants. Casey complied,
after which he said, “If you’re going to kill us, why don’t *** you just do it?” The petitioner
apparently tried to shoot Frank, but the gun misfired. Casey stated that after he heard the shot, he
saw the petitioner holding Frank in a headlock with a smoking gun in his hand.
¶8 The petitioner next pointed the gun at Casey while the codefendant patted him down.
Afterwards, the petitioner shot Casey in the back. Casey ran but fell and pretended to be dead while
codefendant, still holding his gun, approached to check on him. After codefendant left, Casey fled.
As he did so, he heard two more gunshots.
¶9 Evidence at trial further established that Frank’s body was discovered in the gangway with
a trail of blood leading from the porch. The autopsy revealed that he was shot at close range and
in the chest.
¶ 10 In his statement to the police, the petitioner admitted to the robbery but claimed that
codefendant was the shooter.
¶ 11 William Wilson, who had two prior convictions for unlawful use of a weapon and one for
possession of a controlled substance with intent to deliver, also testified at the petitioner’s trial. He
stated that on the day of the incident, he heard gunshots and saw the petitioner run past him. Wilson
followed the petitioner and watched as the petitioner attempted to unjam a handgun. When Wilson
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eventually caught up with the petitioner, the petitioner told him that he and codefendant had tried
to rob two men and that he had killed one and shot the other.
¶ 12 The petitioner was found guilty of first-degree murder, attempted first degree murder and
armed robbery.
¶ 13 The trial court found that the petitioner was eligible for the death penalty because he had
committed the murder during an armed robbery. A hearing was then held to determine whether the
petitioner should receive the death penalty. At this hearing, a Cook County jail guard testified that
while the petitioner was awaiting trial, he and another inmate beat a third inmate who had allegedly
sexually assaulted them. The beating inflicted a broken nose and broken eye socket on the inmate.
The attack left blood splattered on the walls and pools of blood on the floor of the cell. A second
guard testified that on another occasion the petitioner refused to leave a visiting area when told his
time had expired. When guards attempted to forcibly remove him, he struck two of them in the
face. To counter this testimony, the petitioner presented the testimony of the woman who was
visiting him that day and who asserted that a guard had struck the petitioner first and that the
petitioner had only struck him back in defense. Evidence was also introduced that on a third
occasion the petitioner refused to follow an order to leave an area of the jail and swore at and
threatened a prison guard. In addition, the State submitted several victims’ impact statements.
¶ 14 In mitigation, the petitioner’s mother testified that the petitioner had a learning disability
and dropped out of high school because he was teased by other students and because he could not
deal with his father’s death from cancer. Through stipulated testimony, the petitioner introduced
the opinion of a clinical psychologist that his I.Q. was around 70, which was “borderline
intellectual functioning.” The psychologist further opined that the petitioner had a learning
disability, dyslexia, and was immature and hyperactive. Defense counsel further argued that the
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death penalty should not be imposed because of the petitioner’s young age, and the fact that he
was probably induced into committing the crime by his much older codefendant (who was 30 years
old).
¶ 15 After hearing all the evidence, the circuit court elected not to impose the death penalty.
Instead, the court found that the crimes were “brutal and heinous” and imposed an extended term
sentence of 70 years’ imprisonment for first-degree murder, to be served concurrently with a 30-
year sentence for attempt first-degree murder and another 30-year sentence for armed robbery.
¶ 16 The petitioner appealed contending that the circuit court’s finding that the crimes were
“brutal and heinous” was improper and that the sentences were excessive. We rejected the
petitioner’s arguments and affirmed his conviction and sentence on appeal. See English I, No. 97-
2365 (unpublished order pursuant to Illinois Supreme Court Rule 23) (Feb. 19, 1999).
¶ 17 On December 10, 1999, the petitioner filed a pro se postconviction petition alleging, inter
alia, that his trial counsel was ineffective for failing to investigate two alibi witnesses and that
appellate counsel was ineffective for failing to raise this issue on direct appeal. After the State filed
a motion to dismiss, postconviction counsel supplemented the petitioner’s pro se petition with an
additional claim, i.e., that his sentence was improper under Apprendi v. New Jersey, 530 U.S. 466
(2000). The circuit court dismissed the petition and this court subsequently affirmed that dismissal.
See People v. English, No. 1-02-0280 (unpublished order pursuant to Illinois Supreme Court Rule
23) (March 19, 2004).
¶ 18 On February 16, 2005, the petitioner filed his first successive postconviction petition,
alleging, inter alia, that his trial counsel was ineffective for failing to: (1) advance an alibi defense;
and (2) call two witnesses who would have challenged the testimony of Wilson and shown that he
had perjured himself. In support, the petitioner attached affidavits from Farris Skinner and Charles
5 No. 1-20-1016
Streeter, who alleged his innocence and explained that on the night of the murder the petitioner
was with them at his mother’s house. The petitioner further attached his own affidavit and
affidavits from his sister Charlotte English and Tomaine Davis attesting that Wilson had told them
that the prosecutor had forced him to lie at the petitioner’s trial.
¶ 19 The State filed a motion to dismiss, but the circuit court found that the two claims should
be advanced to an evidentiary hearing. The hearing was held on March 18, 2008, after which the
circuit court dismissed the petition, finding that the petitioner’s allegations were “not supported by
credible evidence.”
¶ 20 On July 10, 2020, the petitioner filed the instant pro se motion for leave to file his second
successive postconviction petition. Therein, citing to Miller v. Alabama, 567 U.S. 460 (2012),
People v. House, 2019 IL App. (1st) 110580-B, and People v. Buffer, 2019 IL 122327, he argued
that he was entitled to a new sentencing hearing based on the changes in the law regarding the
sentencing of juvenile offenders and emerging adults. The petitioner asserted that his sentence of
70 years’ imprisonment was a de facto life sentence and that it violated both the eighth amendment
(U.S. Const., amend. VIII) and the Illinois proportionate penalties clause (Ill. Const. 1970, art I, §
11). In discussing the characteristics of youth that should have been considered in rendering a just
sentence as applied to him, the petitioner cited to his learning disability at the time of the offense,
the influence of his 30-year-old codefendant, and the fact that he committed the crime just two
months after his 18th birthday.
¶ 21 On August 3, 2020, the circuit court denied the petitioner’s motion for leave to file his
successive postconviction petition. In its written order, the circuit court explained that the
petitioner had failed to meet the cause and prejudice test. The court found that the petitioner’s
sentence did not violate the eighth amendment (U.S. Const., amend. VIII) because he was 18 years
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old at the time of the offense and the protections outlined in Miller extend only to juvenile
offenders. The court further found that the petitioner’s sentence did not shock the moral sense of
our community under the proportionate penalties clause (Ill. Const. 1970, art I, § 11) because the
petitioner was an active participant in the crime and was not coerced or encouraged by any other,
older individuals, notwithstanding his intellectual disability.
¶ 22 The petitioner now appeals.
¶ 23 III. ANALYSIS
¶ 24 On appeal, the petitioner contends that the circuit court erred in denying him leave to file
his second successive postconviction petition, where he sufficiently stated cause and prejudice
with respect to his claims that his 70-year sentence is unconstitutional as applied to him under the
Illinois proportionate penalties clause (Ill. Const. 1970, art I, § 11). 1
¶ 25 Before addressing the petitioner’s argument, however, we must first address the State’s
contention that we are without jurisdiction to consider this appeal because it was untimely filed.
¶ 26 For the following reasons, we agree with the State and find that we are without jurisdiction
to consider this appeal.
¶ 27 It is axiomatic that “the filing of a notice of appeal ‘is the jurisdictional step which initiates
appellate review.’ ” People v. Smith, 228 Ill. 2d 95, 104 (2008) (quoting Niccum v. Botti,
1 We note that in his opening brief the petitioner initially argued that his 70-year sentence was unconstitutional as applied to him both under the eighth amendment (U.S. Const., amend. VIII) and the Illinois proportionate penalties clause (Ill. Const. 1970, art I, § 11). Both arguments were premised on the fact that the sentence was an unconstitutional de facto life sentence and that it was improperly imposed without any consideration of his age and youthful characteristics. However, in his reply brief the petitioner subsequently conceded that under the recent decision of our supreme court in People v. Dorsey, 2021 IL 123010, ¶¶50-65, his eligibility for day-for-day good conduct credit negates any argument that his sentence is an unconstitutional de facto life sentence. Accordingly, the petitioner acknowledged that he has no argument under the eighth amendment (U.S. Const., amend. VIII). Nonetheless, he asks us to permit him to proceed with his as-applied proportionate penalties challenge to his sentence, because that sentence “shocks the moral sense of our community.” See Ill. Const. 1970, art I, § 11. 7 No. 1-20-1016
Marinaccio, DeSalvo & Tameling, Ltd., 182 Ill. 2d 6, 7 (1998). Accordingly, unless a notice of
appeal is properly filed, the reviewing court has no jurisdiction and is obligated to dismiss the
appeal. Id. Indeed, our supreme court has held that “the appellate and circuit courts of this state
must enforce and abide by” the supreme court rules, and that they do not have the authority to
excuse compliance with the filing requirements of the supreme court rules governing appeals.
(Emphasis in original.) People v. Lyles, 217 Ill. 2d 210, 216 (2005). Whether a court has
jurisdiction is a question of law and is reviewed de novo. People v. Salem, 2016 IL 118693, ¶ 11.
¶ 28 Pursuant to Illinois Supreme Court Rule 606(b) “the notice of appeal must be filed with
the clerk of the circuit court within 30 days after the entry of the final judgement appealed from.”
Ill. S. Ct. R. 606 (b) (eff. July 1, 2017). According to Illinois Supreme Court Rule 373 (Ill. S. Ct.
R. 373 (eff. July 1, 2017)), “briefs or other documents required to be filed within a specified time
will be the date on which they are actually received by the clerk of the reviewing court.” However,
“[i]f received after the due date, the time of mailing by an incarcerated, self-represented litigant
shall be deemed the time of filing” and “[p]roof of mailing shall be as provided in Rule 12.” Id.
This rule also applies to the notice of appeal filed in the trial court. Id.
¶ 29 Illinois Supreme Court Rule 12(b)(6) (eff. July 1, 2017) provides that in the case of service
by mail by an incarcerated pro se litigant, service is proved by certification under section 1-109 of
the Code of Civil Procedure (Code) (735 ILCS 5/1-109 (West 2018)) of the person who deposited
the document in the institutional mail, “stating the time and place of deposit and the complete
address to which the document was to be delivered.” (Emphasis added.)
¶ 30 Thus, when a notice of appeal is filed outside the 30-day period following the order being
appealed, the notice is deemed timely if the petitioner attaches a proof of service in compliance
with Rule 12(b)(6) (eff. July 1, 2017) showing that it was mailed to the clerk of the circuit court
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within the 30-day period. See Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d
209, 215-16 (2009) (reasoning that the proof of mailing establishes “the date the document was
timely mailed to confer jurisdiction on the appellate court”).
¶ 31 In the present case, the petitioner is appealing from the final judgment of the circuit court
entered on August 30, 2020. As such, he was required to file his appeal by September 2, 2020. The
notice of appeal, however, is file-stamped September 18, 2020, which is outside of the requisite
30-day period. Accordingly, for this court to have jurisdiction, the record must establish the
petitioner timely mailed his petition in accordance with Rules 373 and 12(b)(6) regarding proof of
service. Specifically, the record must contain a proof of service of mailing prior to the expiration
of the 30-day period, i.e., a certification in compliance with section 1-109 of the Code (735 ILCS
5/1-109 (West 2018)).
¶ 32 The petitioner here concedes that he did not file a proper certification pursuant to section
1-109 of the Code (735 ILCS 5/1-109 (West 2018)). Nonetheless, he argues that his appeal was
timely because the postmark on the envelope for his notice of appeal indicates that he mailed that
notice on September 1, 2020, prior to the expiration of the 30 days. In doing so, the petitioner relies
on the decision in People v. Humphrey, 2020 IL App (1st) 172837, arguing that a postmark may
serve as sufficient certification of a timely filing by a self-represented litigant residing in prison.
For the following reasons, we disagree and find that case inapposite.
¶ 33 In Humphrey, the defendant did not file a section 1-109 certification proof of service with
his notice of appeal. Humphrey, 2020 IL App (1st) 172837, ¶18. Instead, he relied solely on the
envelope containing his notice of appeal, which was postmarked before the 30-day due date. Id.
The appellate court found that it had jurisdiction based solely on that postmark. Id. The court held
that because the postmark reflected that the notice of appeal had been timely mailed, it had
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jurisdiction over the appeal. Id. at ¶21. The court reasoned that to hold the postmark inadequate
would be to ignore the fact that the notice of appeal had, in fact, been mailed in a timely fashion.
Id. As the court explained:
“Requiring a court to overlook a clearly legible postmark showing that a document was
processed by a disinterested third party, such as the post office, on or before the date by
which the document was required to be mailed is to disregard the best, most competent
evidence of the latest date of mailing consistent with the pro-mailing policy of Rule 373.”
Id. at ¶18 (quoting People v. Hansen, 2011 IL App (2d) 081226, ¶14) (internal quotation
marks omitted).
¶ 34 We acknowledge the holding in Humphrey, but note that after it was decided, in People v.
Tolbert, 2021 IL App (1st) 181654, ¶ 11, another division of this appellate court found that under
the same circumstances we lacked jurisdiction to consider a defendant’s appeal despite the
existence of a postage meter stamp indicating that the defendant had mailed the notice of appeal
before the expiration of the 30-days.
¶ 35 In determining whether a postmark or a postage meter stamp could be used in lieu of a
section 1-109 certification, in Tolbert, we looked to the plain language of Rule 373 and the history
of its amendments. We explained that, as originally written, Rule 373 expressly “permitted proof
of mailing to be evidenced by a postmark.” Id. ¶ 16 (citing Huber v. American Accounting Ass’n,
2014 IL 117293, ¶ 13). However, because of problems with “illegible postmarks, and in some
cases, delays in affixing the postmarks” Rule 373 was amended in 1981, to eliminate postmarks
as a method of proof, and instead to “require proof of mailing by an attorney’s certificate or a
nonattorney’s affidavit.” Id. ¶ 16 (citing Ill. S. Ct. R. 373, Committee Comments (rev. Jan. 5,
1981)). We further noted that a subsequent amendment to the rule in 1993, further incorporated
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the requirements of proof of service under Rule 12. Id.
¶ 36 Noting as “significant” the fact that the amendments to Rule 373 eliminated postmarks as
proof of mailing “entirely, even legible ones,” we held that under the plain language of Rule 373,
jurisdiction was proper only where the record contains a certification verifying the date, time, and
address for delivery. Id. ¶¶ 20-21. As we explained:
“The clearest indication that the rule intended to avoid any kind or quality of postmarks is
its complete absence in the rules, with or without a qualifier. At the time of the rule's
amendment, the goal was to eliminate the need to debate the question of timeliness on those
occasions when the postmark was not legible. It was not the case that all postmarks were
illegible. To read into the rule an exception for ‘legible postmarks’ is to revert to a time
when that method of proof was discarded in exchange for the certainty that Rule
12(b)(6) now provides.” Id. ¶ 20.
¶ 37 Considering the history and express purpose of Rule 373, we found that the potential
availability of other “objective proof of timely mailing” was irrelevant in establishing jurisdiction.
Id. ¶ 21. As we explained, “a determination as to whether such other proof satisfies the
requirements of Rule 373 is a task which lies exclusively within the scope of our supreme court's
rulemaking authority. See Ill. S. Ct. R. 3 (eff. July 1, 2017).” Id. Where “the word ‘postmark’ and
its indicia as a method of proof have long since been abandoned” and our supreme court has not
“seen fit to amend the rule to permit any form of mail system generated verification absent an
accompanying certification,” we are not at liberty to determine which methods of proof could be
presumptively or implicitly included in the court’s rules. Id. Accordingly, we concluded that a
postmark alone is insufficient to confer jurisdiction on this court. Id.
¶ 38 We agree with the well-reasoned analysis of Tolbert and find that it adequately negates the
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holding in Humphrey. Accordingly, we reject the petitioner’s invitation to follow Humphrey
instead of Tolbert. Based on the plain language of Rule 373, we find that absent the certification
of proof of service in the record before us, we are without jurisdiction to consider the petitioner’s
appeal and must dismiss it.
¶ 39 In reaching this conclusion, we reiterate that the petitioner himself concedes that he has
failed to provide this court with the proper certification. Moreover, proof of service to establish
the timely filing of a notice of appeal is not a task with which the petitioner lacks familiarity. Such
is demonstrated by the record, which is replete with copies of past certifications, properly
completed and submitted by the petitioner in compliance with our supreme court’s rules.
¶ 40 III. CONCLUSION
¶ 41 Accordingly, because the record before us does not establish this court has jurisdiction over
the petitioner’s appeal, we must dismiss it.
¶ 42 Appeal dismissed.