2022 IL App (2d) 190951 No. 2-19-0951 Opinion filed March 14, 2022 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 15-CF-375 ) JOHNNY TAYLOR, ) Honorable ) Brian F. Telander, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
PRESIDING JUSTICE BRIDGES delivered the judgment of the court, with opinion. Justices Hutchinson and Zenoff concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant, Johnny Taylor, was convicted of four counts of retail
theft (720 ILCS 5/16-25(a)(1) (West 2014)) and one count of burglary (id. § 19-1(a)). The court
sentenced him to concurrent terms totaling eight years in prison. Defendant appealed. After two
attorneys had filed and withdrawn appearances on defendant’s behalf and no further appearance
was filed, we dismissed defendant’s appeal. On March 13, 2019, defendant petitioned for relief
under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)), arguing that
his appellate counsel was ineffective for failing to proceed with the appeal. Nine days later, counsel
filed his appearance and brief, and this court reinstated defendant’s direct appeal. Three days later,
the trial court sua sponte dismissed defendant’s petition, finding it moot because the direct appeal 2022 IL App (2d) 190951
was reinstated. Thereafter, on May 9, 2019, defendant filed another postconviction petition. The
trial court sua sponte dismissed it, finding that it was a successive postconviction petition under
the Act and that defendant filed it without leave of court. Defendant timely appeals from that
dismissal. At issue is whether (1) the trial court erred in treating defendant’s May 9, 2019, petition
as a successive postconviction petition under the Act and (2) if the court did err, what remedy
should we afford defendant. We determine that (1) the trial court erred in treating defendant’s May
9, 2019, petition as a successive postconviction petition under the Act and (2) this cause must be
remanded for second-stage proceedings under the Act. Accordingly, we reverse the trial court’s
dismissal of defendant’s May 9, 2019, petition and remand this cause for second-stage proceedings
on the petition.
¶2 I. BACKGROUND
¶3 After the court sentenced defendant in the underlying case, the trial court appointed counsel
to represent defendant on appeal. Defendant then filed a notice of appeal. Approximately nine
months later, in September 2018, the appellate defender moved to withdraw, as defendant wanted
to obtain private counsel to represent him. We granted that motion.
¶4 Defendant obtained representation from the Illinois Defense League (Defense League). 1 In
December 2018, Brittany Boma, defendant’s attorney from the Defense League, moved to
withdraw because she had obtained new employment that created a conflict with her representing
defendant. On January 7, 2019, we granted that motion. In our order, we advised defendant that he
had until January 28, 2019, to file his appearance or that of substitute counsel. We also advised
1 As the parties note, this organization is sometimes referred to in the record as the Criminal
Defense League.
-2- 2022 IL App (2d) 190951
defendant that we would dismiss his appeal if no appearance were filed. On January 28, 2019, we
dismissed defendant’s appeal because he failed to comply with our January 7, 2019, order.
¶5 Almost two months later, on March 12, 2019, the trial court spread of record the mandate
dismissing defendant’s appeal. On March 13, 2019, defendant filed from prison a postconviction
petition. 2 He claimed that Boma was ineffective because she failed to file a timely notice of
appearance and that this resulted in the dismissal of defendant’s direct appeal.
¶6 On March 22, 2019, while that petition was pending in the trial court, we (1) sua sponte
recalled the January 28, 2019, mandate dismissing defendant’s direct appeal, (2) granted
defendant’s motion to substitute Nathaniel Frenkel as his attorney, and (3) granted Frenkel’s
motion to extend the time to file defendant’s opening brief and to file the brief instanter. 3
¶7 Three days later, on March 25, 2019, the trial court sua sponte dismissed defendant’s
petition and ordered “[t]he clerk *** to send a copy of this order to [defendant].” The trial court
found:
2 The handwritten proof of service attached to the petition indicates that the petition was
placed in the mail on a date in March but leaves unfilled the blank designated for that date. The
postmark date is March 13, 2019. This is sufficient to establish when the petition was filed. See
People v. Hansen, 2011 IL App (2d) 081226, ¶ 14. 3 After the State filed a brief, Frenkel moved to withdraw. We granted that motion on
December 3, 2019. Defendant moved to amend Frenkel’s brief. We denied that motion. Defendant
filed an appearance and then moved this court to appoint counsel to represent him on appeal. We
denied that motion. On January 13, 2020, defendant moved to vacate the reinstatement of his direct
appeal. We granted that motion on January 15, 2020.
-3- 2022 IL App (2d) 190951
“[A]s a matter of law, the issues presented in [defendant’s] postconviction petition, even
though they can be simultaneous to a [direct] appeal, the issues are now moot because the
single issue was that he was denied that right [to appeal], and the Appellate Court reversed
the decision. So, therefore, the post[ ]conviction petition is dismissed.”
¶8 Like the trial court’s oral pronouncement, the trial court’s written order provided:
“In view of the fact that the Appellate Court has recalled the mandate dismissing
the appeal and that *** defendant’s appellate attorney has now filed an appearance and
brief, the issue in *** defendant’s post[ ]conviction petition has become moot and is hereby
dismissed.”
Defendant appealed from the order dismissing his petition as moot, but we ultimately dismissed
the appeal. 4
¶9 On May 9, 2019, defendant filed another postconviction petition in the trial court.
Defendant claimed that the trial court erred in dismissing the March 13, 2019, petition as moot.
He also alleged that this court was without jurisdiction to reinstate his direct appeal and that the
Defense League engaged in the unauthorized practice of law. On June 24, 2019, defendant filed
an amendment to his May 9, 2019, petition. Defendant alleged that, but for his appellate attorney’s
failure to meet the filing requirements, his direct appeal would have succeeded on the merits.
4 On appeal, this court ordered defendant to file a docketing statement and pay the filing
fee by April 23, 2019. Defendant failed to do so. On May 10, 2019, this court granted defendant
an additional seven days to file a docketing statement and pay the filing fee. Again, defendant
failed to do so. On May 22, 2019, we dismissed defendant’s appeal of the order finding his first
petition moot.
-4- 2022 IL App (2d) 190951
¶ 10 On July 24, 2019, the trial court determined that the May 9, 2019, petition was a successive
postconviction petition under the Act. The court also found that defendant filed the successive
petition without leave of court. Because defendant had not obtained leave of court, the trial court
dismissed the May 9, 2019, petition. In doing so, the trial court asserted that it dismissed
defendant’s March 13, 2019, petition after finding it frivolous or patently without merit.
¶ 11 Defendant timely moved the trial court to reconsider the dismissal of the May 9, 2019,
petition. The court denied the motion and found that, even if it considered defendant’s May 9,
2019, petition under the cause-and-prejudice test applicable to successive postconviction petitions,
the court would not grant defendant leave to file the petition, as defendant failed to establish cause.
¶ 12 II. ANALYSIS
¶ 13 At issue in this appeal is whether (1) the trial court erred in treating defendant’s May 9,
2019, petition as a successive postconviction and (2) if the trial court erred, what remedy should
we afford defendant. In resolving these issues, we believe that a brief discussion of the three
procedural stages of the Act, and what steps a defendant must take to file a successive petition, is
warranted.
“At stage one, section 122-2.1 [of the Act] directs the trial court to dismiss the
petition if the [defendant] is sentenced to imprisonment and if the court determines that
‘the petition is frivolous or is patently without merit.’ [Citation.] Section 122-2.1(a) [of the
Act] requires the court to examine the petition and enter an order ‘[w]ithin 90 days after
the filing and docketing of each petition.’ [Citation.] Section 122-2.1 does not contemplate
any input from the State by responsive pleading or otherwise. [Citation.] Under section
122-2.1, the trial court is concerned merely with determining whether the petition’s
allegations sufficiently demonstrate a constitutional infirmity that would necessitate relief
-5- 2022 IL App (2d) 190951
under the Act. [Citation.] At the first stage, the trial court does not rule on the merits of the
petition; rather, the trial court simply decides if the petition on its face is frivolous or
patently without merit. [Citation.] In order to withstand dismissal at stage one, the
postconviction petition need only contain a simple statement that presents the gist of a
constitutional claim for relief that is meritorious when considered in view of the record.
[Citation.] If a petition is not dismissed under section 122-2.1, then it is to be docketed and
considered in accordance with sections 122-4 through 122-6 of the Act. [Citation.]
At stage two, section 122-4 [of the Act] provides for the appointment of counsel if
the petitioner has no means to procure counsel. [Citation.] Also at stage two, section 122-
5 [of the Act] directs that the State shall either answer or move to dismiss the petition.
[Citation.] At this stage, the trial court must determine whether the petition and any
accompanying documents make a substantial showing of a constitutional violation.
[Citation.]
Finally, at stage three, section 122-6 [of the Act] gives the trial court the discretion
to hold a hearing and provides that the court may receive proof by affidavits, depositions,
oral testimony or other evidence. [Citation.]” People v. Sawczenko, 328 Ill. App. 3d 888,
892-93 (2002).
¶ 14 The standards for filing a successive postconviction are as follows:
“The Act contemplates the filing of a single petition. [Citation.] However, section 122-1(f)
of the Act provides an exception to this rule, permitting a successive petition if the
defendant first obtains permission from the [trial] court after demonstrating both cause for
failing to bring the claim in his initial postconviction proceeding and resulting prejudice.
[Citation.] To establish cause, a defendant must show some objective factor external to the
-6- 2022 IL App (2d) 190951
defense that impeded his ability to raise the claim in the initial postconviction proceeding.
[Citations.] To establish prejudice, a defendant must show that the claimed constitutional
error so infected the proceeding that the result violated due process. [Citations.] The court
should deny the motion for leave to file a successive petition only when it is clear from a
review of the proposed petition and supporting documents that the defendant’s claim fails
as a matter of law or where those submissions are insufficient to justify further proceedings.
[Citation.]” People v. Simental, 2021 IL App (2d) 190649, ¶ 12.
“A [defendant] is to get one complete opportunity to show that his constitutional rights were
substantially denied.” Sawczenko, 328 Ill. App. 3d at 897; see also People v. Polansky, 39 Ill. 2d
84, 86 (1968) (“Granting a defendant one complete opportunity to show a substantial denial of his
constitutional rights fully satisfies the fundamentals of due process ***.”).
¶ 15 We now consider the issues defendant raises on appeal.
¶ 16 A. Was the May 9, 2019, Petition a Successive Petition?
¶ 17 The first issue we address is whether the trial court erred in treating defendant’s May 9,
2019, petition as a successive petition for purposes of the Act. Because this issue raises a pure
question of law, our review is de novo. People v. Anderson, 2021 IL App (2d) 190128, ¶ 16.
¶ 18 The trial court could consider defendant’s May 9, 2019, petition as a successive
postconviction petition under the Act only if the trial court properly treated his earlier petition
(filed on March 13, 2019) as an initial petition. Resolving whether the court correctly treated the
March 13, 2019, petition as a first petition requires us to examine how the trial court disposed of
it. 5 It is undisputed that defendant’s March 13, 2019, petition was dismissed. On June 24, 2019,
5 At issue here is not how the trial court characterized the March 13, 2019, petition during
-7- 2022 IL App (2d) 190951
the trial court asserted that it dismissed the March 13, 2019, petition because it was frivolous or
patently without merit. A postconviction petition is “frivolous or patently without merit only if it
has no ‘arguable basis either in law or in fact.’ ” People v. Petrenko, 237 Ill. 2d 490, 496 (2010)
(quoting People v. Hodges, 234 Ill. 2d 1, 16 (2009)). “A petition lacks an arguable basis in either
law or fact if it is based on an indisputably meritless legal theory or fanciful factual allegations.”
People v. Munz, 2021 IL App (2d) 180873, ¶ 13. “ ‘[A] meritless legal theory is one completely
contradicted by the record, while fanciful factual allegations may be fantastic or delusional.’ ” Id.
(quoting People v. Knapp, 2020 IL 124992, ¶ 45).
¶ 19 An examination of the trial court’s oral pronouncement and written order indicates that the
trial court dismissed the March 13, 2019, petition as moot, not as frivolous or patently without
merit. “ ‘[A] moot question is one that existed but because of the happening of certain events has
ceased to exist and no longer presents an actual controversy over the interest or rights of the party
***.’ ” People v. Coe, 2018 IL App (4th) 170359, ¶ 47 (quoting Ahmad v. Board of Election
Commissioners, 2016 IL App (1st) 162811, ¶ 9).
¶ 20 Without citing any authority, the State argues that a finding of mootness means that the
petition is frivolous or patently without merit. We have not found any authority that associates
mootness with being frivolous or patently without merit. However, it is well established that
“ ‘ “frivolous or patently without merit” encompasses the common-law doctrines of res judicata
the proceedings on that petition. The record clearly reflects that the court treated the March 13,
2019, petition as a postconviction petition. What is at issue is how the trial court resolved the
March 13, 2019, petition and the effect that that resolution had on proceedings for the May 9, 2019,
petition.
-8- 2022 IL App (2d) 190951
and forfeiture.’ ” Munz, 2021 IL App (2d) 180873, ¶ 28 (quoting People v. Kane, 2013 IL App
(2d) 110594, ¶ 26). “Res judicata bars the consideration of issues that were previously raised and
decided on direct appeal, whereas forfeiture bars any claims that could have been raised on direct
appeal but were not.” Id.
¶ 21 We must determine whether “frivolous or patently without merit” encompasses mootness
like it does res judicata and forfeiture. Our supreme court has considered whether timeliness (see
People v. Boclair, 202 Ill. 2d 89 (2002)) and, more recently, standing (see People v. Johnson, 2021
IL 125738) are, like res judicata and forfeiture, bases for dismissing a petition as frivolous or
patently without merit.
¶ 22 In addressing whether timeliness could be a basis to summarily dismiss a postconviction
petition at stage one of postconviction proceedings, the court in Boclair defined what “frivolous,”
“patently,” and “merit” mean under the Act. Boclair, 202 Ill. 2d at 101. The court determined that
“ ‘[f]rivolous’ has been defined as ‘of little weight or importance: having no basis in law or fact.’ ”
Id. (quoting Webster’s Third New International Dictionary 913 (1993)). “ ‘[P]atently’ means
‘Clearly, Obviously, Plainly.’ ” Id. (quoting Webster’s Third New International Dictionary 1654
(1993)). “ ‘[M]erit’ means ‘legal significance, standing, or importance.’ ” (Emphasis added.) Id.
(quoting Webster’s Third New International Dictionary 1414 (1993)). The court noted that “[t]hese
terms do not include issues of timeliness.” Id. The court also observed that “time is not an inherent
element of the right to bring a post[ ]conviction petition.” (Emphasis in original.) Id. Thus, the
court held that timeliness, unlike res judicata and forfeiture, is not a basis to summarily dismiss a
postconviction petition for being frivolous or patently without merit. See id. at 102 (“At th[e] initial
stage of the proceedings *** the [trial] court should only determine whether the petition alleges
-9- 2022 IL App (2d) 190951
constitutional deprivations. The process at the summary review stage measures a petition’s
substantive virtue ***.”).
¶ 23 Later, in Johnson, our supreme court considered whether standing could be a basis for
summarily dismissing a petition as frivolous or patently without merit at stage one of
postconviction proceedings. See Johnson, 2021 IL 125738, ¶ 50. In doing so, the court observed
that “[s]tanding under the Act *** involves a conclusion of law in that the legislature has identified
who may institute proceedings and the conditions under which the proceedings may be brought.”
Id. ¶ 49. Thus, the court held “that, where a defendant lacks standing under the Act because he is
not ‘imprisoned in the penitentiary’ [citation], a claim brought under the Act is necessarily
‘frivolous’ or ‘patently without merit’ [citation].” Id. ¶ 50.
¶ 24 Here, we cannot conclude that a finding of mootness means that the petition is frivolous or
patently without merit. Unlike standing, and like timeliness, “mootness” does not fall within the
definitions of “frivolous,” “patently,” or “merit.” See Boclair, 202 Ill. 2d at 101 (noting that merit
encompasses standing). Moreover, unlike standing, mootness is not an inherent element that needs
to be satisfied in bringing a petition. A defendant does not need to establish that an actual
controversy exists. If a defendant needed to establish that an actual controversy existed, there
would be little need for the court to evaluate a petition at the first or second stages of postconviction
proceedings. Further, like timeliness, a finding that a petition is moot does not concern evaluating
whether a petition raises any claim of constitutional deprivation. Indeed, mootness, unlike
res judicata—which applies when there is final judgment on the merits—is not even a finding on
the merits. See Gassman v. Clerk of the Circuit Court, 2017 IL App (1st) 151738, ¶ 33 (“A
mootness finding is not a judgment on the merits and will not support a finding of res judicata in
a future case.”). Because we determine that mootness does not mean being frivolous or patently
- 10 - 2022 IL App (2d) 190951
without merit, we conclude that the trial court, in reviewing the May 9, 2019, petition, improperly
treated defendant’s March 13, 2019, petition as a first petition under the Act. Because of the
improper treatment of the March 13, 2019, petition under the Act, the trial court incorrectly treated
defendant’s May 9, 2019, petition as a successive petition under the Act.
¶ 25 Even if we could associate mootness with being frivolous or patently without merit, we
still would not conclude that defendant’s May 9, 2019, petition was a successive petition requiring
leave of court to file. Instructive here is Sawczenko. There, after the defendant was sentenced, he
filed in September 1997 a petition for postconviction relief, claiming that he was unfit to plead
guilty and should have been afforded a fitness hearing. Sawczenko, 328 Ill. App. 3d at 890-91. The
petition proceeded to stage two, and the trial court appointed counsel, who filed an amended
postconviction petition. Id. at 891. The State moved to dismiss, the trial court denied the motion,
and the State filed an answer. Id. When the parties next appeared before the trial court,
postconviction counsel advised the court that the defendant wished to withdraw his petition based
on religious beliefs and some research he had done. Id. After extensively admonishing the
defendant about the consequences of withdrawing his petition, the court granted the defendant’s
motion to withdraw the petition. Id.
¶ 26 Over one year after withdrawing the September 1997 petition, the defendant filed in August
2000 another petition for postconviction relief. Id. He argued that (1) postconviction counsel was
ineffective for not sufficiently conferring with him about withdrawing his petition, (2) extreme
religious practices caused him to suffer from insomnia, and (3) his insomnia rendered him unable
to understand what he was doing when he withdrew the September 1997 petition. Id. At a hearing,
the defendant made clear that he wished to reinstate the allegations he made in the September 1997
petition and raise additional issues in a supplemental petition. Id. at 892. The trial court found that
- 11 - 2022 IL App (2d) 190951
the August 2000 petition did not “ ‘state a basis upon which a [sic] relief [could] be drawn upon
the [A]ct.’ ” Id. In its written order, the court found the petition to be “ ‘frivolous and patently
without merit.’ ” Id.
¶ 27 On appeal, we considered whether the dismissal of the August 2000 petition could be
affirmed on the ground—not considered in the trial court—that the petition was “an improper
successive postconviction petition.” Id. at 897. We found that it could not. Id. In doing so, we
noted that, although “[t]he Act contemplates the filing of [only] one petition,” the mere fact that a
second petition was filed did not mean that the second petition should automatically be considered
a successive petition. Id. After recognizing that “[a defendant] is to get one complete opportunity
to show that his constitutional rights were substantially denied,” we determined that a “trial court
may allow the filing of successive petitions when proceedings on a petition were deficient in some
fundamental way.” Id. To that end, we stated:
“Nothing in the record indicates that the proceedings on [the] defendant’s first
postconviction petition were deficient. However, in defendant’s second postconviction
petition, he alleges that counsel appointed to represent him on his first petition was
ineffective for allowing him to withdraw his petition without conferring with him
sufficiently. We believe that this sufficiently alleges a deficiency in the proceedings on
[the] defendant’s first postconviction petition.” Id.
The court reviewed the propriety of the stage-one dismissal of the August 2000 petition. Id. at 897-
98.
¶ 28 In our view, the circumstances of this case provide a stronger basis than in Sawczenko for
allowing defendant to file his May 9, 2019, petition as an initial petition, without having to satisfy
the cause-and-prejudice test. Specifically, unlike in Sawczenko, it was arguably the recall of this
- 12 - 2022 IL App (2d) 190951
court’s mandate that justified the trial court’s dismissal of the March 13, 2019, petition as moot.
That dismissal occurred shortly after defendant filed it and before defendant had any opportunity
to withdraw it. Moreover, unlike in Sawczenko, where the defendant was in court and played a part
in the withdrawal of his first (September 1997) petition, defendant’s March 13, 2019, petition was
dismissed without him or counsel being in court or having any input. Further, unlike in Sawczenko,
where the defendant received an opportunity to show that his constitutional rights were
substantially violated, defendant here had no similar opportunity. Under the unique facts of this
case, we must conclude that, even if mootness means being frivolous or patently without merit
under the Act, defendant’s May 9, 2019, petition must be considered his first under the Act.
¶ 29 Lastly, under the Illinois Constitution, “the right to appeal a criminal conviction is
fundamental.” People v. Ross, 229 Ill. 2d 255, 268 (2008). Further, section 122-1(f)’s reference to
“one petition *** without leave of the court” (725 ILCS 5/122-1(f) (West 2018)) indicates one
complete opportunity to collaterally attack “the proceedings which resulted in his or her
conviction” (id. § 122-1(a)(1)). Thus, where, as here, a defendant has been denied that opportunity,
he should be “ ‘restored to the procedural posture he would have enjoyed if he had been
represented by effective counsel who had timely filed a notice of appeal.’ ” People v. Little, 2012
IL App (5th) 100547, ¶ 17 (quoting Urinyi v. United States, 607 F.3d 318, 321 (2d Cir. 2010)).
Moreover, not every petition numerically identified as a second petition is “second or successive”
under the Act. See id. ¶¶ 20-21; see also People v. Wilson, 2014 IL App (1st) 113570, ¶¶ 40-41.
¶ 30 In Little, the question before the reviewing court was whether a subsequent postconviction
petition is considered successive under the Act, where the initial petition sought only to reinstate
the right to a direct appeal that was lost due to counsel’s ineffectiveness. Little, 2012 IL App (5th)
- 13 - 2022 IL App (2d) 190951
100547, ¶ 19. The defendant filed a pro se postconviction petition alleging his trial counsel was
ineffective for failing to file a notice of appeal, despite the defendant’s request to do so. Id. ¶ 6.
¶ 31 The defendant appealed his convictions and sentence after being sentenced to two
consecutive three-year terms of imprisonment. Id. ¶ 3. His convictions were affirmed, and his case
was remanded for resentencing because it was “not clear from the record what motivated the trial
court to order that the sentences” be served consecutively. (Internal quotation marks omitted.) Id.
¶ 4. On remand, the trial court resentenced the defendant and imposed consecutive three-year terms
again. Id. The defendant was ultimately granted leave to file a late notice of appeal from the
resentencing order due to filing a pro se postconviction petition alleging his trial counsel was
ineffective for failing to file a notice of appeal. Id. ¶¶ 6, 8. After the appellate court affirmed the
trial court’s judgment, the defendant filed a second pro se postconviction petition. The trial court
construed that petition as a request for leave to file a successive postconviction petition, which it
denied. Id. ¶ 10. The appellate court held that the defendant filed his first postconviction petition
to regain his right to a direct appeal that he lost due to counsel’s ineffectiveness. Id. ¶ 21. Thus,
the first petition should not have been treated as a postconviction petition, because it was not a true
collateral attack on his conviction and sentence. Id. ¶ 21. Accordingly, his second petition was not
a successive postconviction petition. Id. ¶ 19.
¶ 32 B. Remedy
¶ 33 Given our conclusion that defendant’s May 9, 2019, petition was his first postconviction
petition, we next must address what remedy we should afford defendant for the trial court’s failure
to consider within 90 days whether the May 9, 2019, petition was frivolous or patently without
merit. See 725 ILCS 5/122-2.1(a)(2) (West 2018). Defendant argues that, because the court made
no such ruling on his May 9, 2019, petition by August 7, 2019—90 days after it was filed—the
- 14 - 2022 IL App (2d) 190951
dismissal of his May 9, 2019, petition must be remanded for second-stage proceedings under the
Act. The State argues that, given the unique circumstances of this case, the dismissal of defendant’s
May 9, 2019, petition must be remanded for proceedings under the first stage of the Act.
¶ 34 Resolving this issue requires us to examine section 122-2.1 of the Act. In relevant part, that
section provides:
“(a) Within 90 days after the filing and docketing of each petition, the court shall examine
such petition and enter an order thereon pursuant to this Section.
***
(2) If the petitioner is sentenced to imprisonment and the court determines
the petition is frivolous or is patently without merit, it shall dismiss the petition in
a written order, specifying the findings of fact and conclusions of law it made in
reaching its decision. ***
(b) If the petition is not dismissed pursuant to this Section, the court shall order the
petition to be docketed for further consideration in accordance with Sections 122-4 through
122-6 [of the Act].” Id. § 122-2.1(a)(2), (b).
¶ 35 In construing section 122-2.1(a)(2), courts have determined that a trial court has 90 days
from the filing and docketing of a postconviction petition to summarily dismiss it as frivolous or
patently without merit. Further, a trial court’s failure to do so within the 90 days requires the court
to docket the petition for further proceedings under sections 122-4 through 122-6 of the Act.
People v. Porter, 122 Ill. 2d 64, 85 (1988) (the time requirement contained in section 122-2.1(a)(2)
is mandatory); People v. Volkmar, 363 Ill. App. 3d 668, 670-71 (2006).
¶ 36 Here, defendant’s May 9, 2019, petition was not summarily dismissed as frivolous or
patently without merit within 90 days of filing. Rather, on July 24, 2019, within 90 days after the
- 15 - 2022 IL App (2d) 190951
May 9, 2019, petition was filed, the trial court dismissed it because it found that (1) the May 9,
2019, petition was a successive postconviction petition under the Act and (2) defendant filed it
without leave of court. Consistent with the remedy in Little, 2012 IL App (5th) 100547, ¶ 24, we
reverse the dismissal of the petition and remand this case for further proceedings under sections
122-4 through 122-6 of the Act because the trial court did not review the May 9, 2019, petition
within 90 days to determine whether it was frivolous or patently without merit. See 725 ILCS
5/122-2.1(b) (West 2018).
¶ 37 III. CONCLUSION
¶ 38 For the reasons stated, we reverse and remand the cause to the circuit court of Du Page
County for a second-stage postconviction proceeding.
¶ 39 Reversed and remanded with directions.
- 16 - 2022 IL App (2d) 190951
No. 2-19-0951
Decision Under Review: Appeal from the Circuit Court of Du Page County, No. 15-CF- 375; the Hon. Brian F. Telander, Judge, presiding.
Attorneys James E. Chadd, Thomas A. Lilien, and Jeffrey Bruce Kirkham, for of State Appellate Defender’s Office, of Elgin, for appellant. Appellant:
Attorneys Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne for Hoffman, Assistant State’s Attorney, of counsel), for the People. Appellee:
- 17 -