People v. Stroud

2021 IL App (1st) 200321-U

Opinion

2021 IL App (1st) 200321-U No. 1-20-0321 Order filed August 3, 2021 Second Division

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 DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 14 CR 7307 ) OTIS L. STROUD, ) Honorable ) Michele M. Pitman, Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Lavin and Cobbs concurred in the judgment.

ORDER

¶1 Held: The circuit court’s dismissal of defendant’s postconviction petition at the first stage is affirmed over his argument that the court erred by dismissing the petition orally.

¶2 Defendant Otis L. Stroud appeals from the circuit court’s summary dismissal of his pro se

petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West

2018)), arguing that the circuit court violated the statute by dismissing the petition orally. We

affirm. No. 1-20-0321

¶3 Defendant was indicted on six charges, including armed robbery with a firearm, following

an incident on October 8, 2013.

¶4 On May 4, 2016, defendant pled guilty to armed robbery with a dangerous weapon (720

ILCS 5/18-2(a)(1) (West 2012)) in exchange for the State recommending an 18-year prison term

and dismissing the remaining counts. As a factual basis, the State relayed that on October 8, 2013,

in Blue Island, Illinois, defendant and Darcell Killingsworth entered the victim’s home and took

money from him while threatening him with a bludgeon, then fled in a vehicle after a struggle.

Police officers curbed the vehicle. The victim and another witness later identified defendant in

photographic and physical lineups. The trial court accepted the plea, and sentenced defendant to

18 years’ imprisonment. Defendant did not attempt to withdraw his plea or file a direct appeal.

¶5 On June 21, 2019, defendant filed his pro se postconviction petition, arguing, in relevant

part, that trial counsel provided ineffective assistance by advising defendant to plead guilty. On

September 11, 2019, the circuit court dismissed the petition in open court, stating that the claims

were “frivolous and patently without merit.” That same day, the court issued a criminal disposition

sheet and made a docket entry that each memorialized the dismissal. On October 16, 2019, the

clerk mailed defendant notice of the dismissal. Defendant then filed a motion for leave to file a

late notice of appeal, which this court granted on February 26, 2020.

¶6 On appeal, defendant’s lone argument is that the circuit court erred by dismissing his

petition orally.

¶7 The Act provides a mechanism for criminal defendants to challenge a conviction on the

basis that it violated their state or federal constitutional rights, or both. People v. Hodges, 234 Ill.

2d 1, 9 (2009). Petitions under the Act are reviewed in three stages. People v. Buffer, 2019 IL

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122327, ¶ 45. At the first stage, the defendant need only state the “gist” of a constitutional claim,

and the petition should not be dismissed unless the circuit court finds that the claims are frivolous

or patently without merit. Hodges, 234 Ill. 2d at 9-10. Where the circuit court finds that summary

dismissal is proper, the court, within 90 days of the filing and docketing of the petition, “shall

dismiss the petition in a written order, specifying the findings of fact and conclusions of law it

made in reaching its decision.” 725 ILCS 5/122-2.1(a)(2) (West 2018)). The written order

provision is directory, however, and the only mandatory provision of this section is that the court

enter its decision of record within 90 days. People v. Porter, 122 Ill. 2d 64, 81 (1988). Whether

the circuit court appropriately dismissed a postconviction petition at the first stage is a matter of

law we review de novo. People v. Morris, 236 Ill. 2d 345, 354 (2010).

¶8 Here, the record shows that within 90 days of the petition’s filing and docketing, the circuit

court announced its ruling in open court, then entered the order on the criminal disposition sheet

and docket, and notified defendant of the ruling in a timely fashion. This is all the statute requires,

and therefore, under Porter, defendant’s claim is meritless. See People v. Cooper, 2015 IL App

(1st) 132971, ¶ 14 (“[A] written order of summary dismissal is not required. Instead, a court

summarily dismisses a postconviction petition when its decision is entered of record.”).

¶9 Defendant argues that our supreme court overruled Porter in People v. Perez, 2014 IL

115927, and that the latter stands for the proposition that the circuit court must file a written order

with findings of fact or conclusions of law within 90 days. We disagree. In Perez, the circuit court

failed to enter any decision of record within 90 days of the filing and docketing of the petition, and

only filed its written order on the 91st day. Perez, 2014 IL 115927, ¶ 1. The supreme court found

that this filing did not satisfy the mandatory 90-day requirement of the statute, but made no other

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finding, expressly stating the only question before it was “when did the trial court ‘enter an order’

pursuant to” the statute. Id. ¶ 13. And while the supreme court stated in dicta that a written order

expressing findings of fact and conclusions of law is preferable, it did not overturn Porter, or

indeed, reference, cite, or discuss that decision. Id. Accordingly, we cannot say that Perez

implicitly overturned Porter.

¶ 10 For the foregoing reasons, the circuit court’s summary dismissal of defendant’s

postconviction petition is affirmed.

¶ 11 Affirmed.

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