People v. Tolbert

2021 IL App (1st) 181654

Opinion

2021 IL App (1st) 181654 No. 1-18-1654 Second Division May 11, 2021 ______________________________________________________________________________

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. 01 CR 17131 ) VERNON TOLBERT, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge, presiding.

JUSTICE COBBS delivered the judgment of the court, with opinion. Justices McBride and Ellis concurred in the judgment and opinion.

OPINION

¶1 Defendant, Vernon Tolbert, proceeding pro se, appeals from the circuit court’s September

2018 order denying his motion for forensic testing regarding actual innocence pursuant to section

116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 2016)). Defendant

contends the circuit court erred in finding that his request for forensic testing was without merit

because it was a duplication of previous motions. For the following reasons, we dismiss

defendant’s appeal.

¶2 I. BACKGROUND No. 1-18-1654

¶3 Following a 2002 jury trial, defendant was found guilty of first degree murder (720 ILCS

5/9-1(a) (West 2000)) and sentenced to 65 years’ imprisonment, which included a 25-year firearm

enhancement. On direct appeal, this court affirmed his conviction and sentence. People v. Tolbert,

354 Ill. App. 3d 94 (2004).

¶4 After defendant exhausted his right to direct review, he initiated a series of collateral

attacks on his conviction, all of which were dismissed as lacking merit. In each action for which

defendant sought appellate review, this court has affirmed. See People v. Tolbert, No. 1-04-2451

(2006) (unpublished order under Illinois Supreme Court Rule 23); People v. Tolbert, No. 1-05-

2914 (2008) (unpublished order under Illinois Supreme Court Rule 23); People v. Tolbert, No. 1-

06-2853 (2007) (unpublished order under Illinois Supreme Court Rule 23); People v. Tolbert,

No. 1-09-2332 (2011) (unpublished summary order under Illinois Supreme Court Rule 23(c));

People v. Tolbert, No. 1-12-0373 (2013) (unpublished summary order under Illinois Supreme

Court Rule 23(c)).

¶5 Since our 2013 decision granting his appointed counsel’s motion to withdraw pursuant to

Pennsylvania v. Finley, 481 U.S. 551 (1987), defendant has filed numerous pro se pleadings in the

circuit court, which we need not recount here. With the exception of one such filing, in which

defendant successfully sought retesting of a beer bottle for fingerprints, the filings were deemed

to be without merit. 1

1 In 2016, after the new fingerprint testing was completed, defendant’s appointed counsel, who had assisted defendant in obtaining the new testing, drafted a successive postconviction petition asserting a claim of actual innocence. Subsequently, defendant requested that his appointed counsel withdraw, and he proceeded pro se.

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¶6 In February 2018, defendant filed the motion at issue in this appeal. In April 2018, he filed

a supplement to that motion purportedly seeking additional forensic testing on the beer bottle. 2 On

June 7, 2018, the circuit court denied defendant’s motion, finding that it lacked merit and was

duplicative of his other filings. Defendant appealed.

¶7 II. JURISDICTION

¶8 Although the State raises no issue regarding jurisdiction, as a reviewing court, we have an

independent duty to evaluate our jurisdiction to consider defendant’s appeal. People v. Smith, 228

Ill. 2d 95, 104 (2008). Illinois Supreme Court Rule 606(a) and (b) (eff. Mar. 12, 2021) provides

that to appeal a final judgment in a criminal proceeding, the defendant must file a notice of appeal

with the clerk of the circuit court within 30 days after the entry of the final judgment appealed

from. “The filing of a notice of appeal ‘is the jurisdictional step which initiates appellate review.’ ”

Smith, 228 Ill. 2d at 104 (quoting Niccum v. Botti, Marinaccio, DeSalvo & Tameling, Ltd., 182 Ill.

2d 6, 7 (1998)). Unless a notice of appeal is properly filed, a reviewing court has no jurisdiction

and is obliged to dismiss the appeal. Id. Indeed, “the appellate and circuit courts of this state must

enforce and abide by the rules of [the supreme court]” and 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 we have jurisdiction is a question

of law, which we review de novo. People v. Salem, 2016 IL 118693, ¶ 11.

¶9 Illinois Supreme Court Rule 373, which is applicable in criminal cases pursuant to Illinois

Supreme Court Rule 612(b)(18) (eff. July 1, 2017), states as follows:

2 The record on appeal does not include defendant’s motion or its supplement.

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“Unless received after the due date, the time of filing records, 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. If received after the due date, the time

of mailing by an incarcerated, self-represented litigant shall be deemed the time of filing.

Proof of mailing shall be as provided in Rule 12. This rule also applies to a motion directed

against the judgment and to the notice of appeal filed in the trial court.” (Emphasis added.)

Ill. S. Ct. R. 373 (eff. July 1, 2017).

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 (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.) 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 defendant attaches a proof of service in compliance with Rule 12(b)(6) showing it was mailed

to the clerk of the circuit court 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”).

¶ 10 Here, the circuit court entered its order denying defendant’s motion for forensic testing on

June 7, 2018. 3 Defendant’s notice of appeal contains a file stamp dated July 12, 2018, which is

3 We note that defendant's notice of appeal identifies June 19, 2018 as the date of the order from which he is appealing. A review of the record reveals that the order denying his motion was entered on June 7, 2018; however, the letter informing defendant of this decision is dated June 19, 2018.

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outside the 30-day period in which defendant was required to file his notice of appeal. Accordingly,

for this court to have jurisdiction over defendant’s appeal, the record must establish defendant

timely mailed his petition in accordance with Rules 373 and 12(b)(6).

¶ 11 We have carefully combed through the more than 1800 pages of the common law record

in search of the requisite documents supporting defendant’s appeal. Contained therein is

defendant’s notice of appeal dated July 5, 2018. Attached to the notice is an affidavit, signed by

defendant, in which he avers that “everything stated in the attached notice of appeal dated 7-5-18,

is true and correct to the best of [his] knowledge and belief,” and that “it should also be mentioned

that the prison is currently on lock-down and the prison notary public is unavailable to notarize the

notice of appeal otherwise a notary would be thereon.” The only other paper in the record that

appears related to this appeal is the envelope in which the notice of appeal was purportedly mailed.

The envelope is addressed to the clerk of the circuit court. In the upper right-hand corner of the

envelope is a label from a Hasler postage meter, which indicates $0.50 of postage was paid for on

July 6, 2018, which was one day prior to the expiration of the 30-day appeal period.

¶ 12 As an intermediate reviewing court, we are constrained by our supreme court’s rules. Thus,

we must determine whether defendant’s postage metered label is competent evidence of timely

mailing as required under Rules 373 and 12(b)(6). The governing regulations for postage meters

are contained in the United States Postal Service (USPS) Domestic Mail Manual (U.S. Postal

Serv., Mailing Standards of the United States Postal Service, Domestic Mail Manual (Apr. 5, 2021)

https://pe.usps.com/cpim/ftp/manuals/dmm300/full/MailingStandards.pdf [https://perma.cc/

G5LE-TPKA] (hereinafter DMM)). The DMM has been incorporated by reference into the Code

of Federal Regulations and thus, has the force of law. 39 C.F.R. § 111.1 (2005); see People v.

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Hanna, 207 Ill. 2d 486, 497 (2003) (“Administrative regulations have the force and effect of law

***.”). Thus, we take judicial notice of the pertinent regulations contained therein. See PNC Bank,

National Ass’n v. Wilson, 2017 IL App (2d) 151189, ¶ 23.

¶ 13 A postage meter, which the DMM identifies as a “postage evidencing system,” is defined

as “a device or system of components a customer uses to print evidence [“indicia”] that postage

required for mailing has been paid.” DMM § 604.4.1.1. In addition to identifying the amount of

postage paid, the indicia may also identify the postage meter provider (id. § 604.4.3.3(c)), as well

as the date of mailing (id. § 604.4.6.1). According to the DMM, there are a limited number of

authorized postage meter providers, one of which is Quadient, Inc., which owns Hasler (the name

included in the postage meter label in this case). When a provider leases a postage meter, the

provider enters into an agreement with USPS in which the provider “agrees to abide by all rules

and regulations governing its use.” Id. § 604.4.2.1. As to the mailing date, the DMM provides the

following:

“The date or period when mailers may deposit or present metered mail for mailing

is controlled by the mailing date in the indicia under the following conditions:

a. Complete Date. Mailpieces bearing a complete date in the indicia must be

deposited or presented on that date, except for pieces entered after the day’s last scheduled

collection from the Post Office or collection box. Those may bear the actual date of entry

or the date of the next scheduled collection from the Post Office or collection box. When

authorized by USPS, presort mail accepted after midnight may bear the previous day’s

date. If the mailer knows that the mail is not to be deposited or presented on the date in the

indicia, the mailer must use a date correction indicium under 4.5.1.” Id. § 604.4.6.2.

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Finally, a provider’s usage of a postage meter may be denied for failure to comply with mailing

standards, submission of false or incomplete information, or entering mailpieces for which there

is a postage discrepancy into the mailstream. Id. § 604.4.2.4.

¶ 14 Based on the regulations, it appears that, with some exceptions, the date an item is metered

is the date the item must be deposited or presented for mailing. In that regard, the postage metering

system, which is regulated by the USPS, bears some similarities to a postmark. In Huber v.

American Accounting Ass’n, 2014 IL 117293, our supreme court defined a postmark as “ ‘ “an

official postal marking on a piece of mail; specif: a mark showing the name of the post office and

the date and sometimes the hour of mailing and often serving as the actual and only

cancellation.” ’ ” Id. ¶ 16 (quoting Wickman v. Illinois Property Tax Appeal Board, 387 Ill. App.

3d 414, 417 (2008), quoting Webster’s Third New International Dictionary 1772-73 (1993)).

Given the similarities between postmarks and postage meters, a determination regarding the

evidentiary sufficiency of postmarks would lend support to a similar finding with respect to

postage meters.

¶ 15 Huber, though factually inapposite, offers some insight. In Huber, the envelope containing

the plaintiff’s notice of appeal contained a postage label from an Automated Postal Center (APC).

Id. ¶ 17. An APC, as described by the court, is a self-service kiosk, generally located in post office

lobbies, that allows customers to mail letters and packages and access other postal services. Id.

The plaintiff argued that an APC label, which showed the date of issue, was sufficient to establish

when the notice of appeal had been mailed. Id. ¶ 18. The court rejected the argument, stating that

the date of sale was not synonymous with the date the envelope was placed in the mail and within

the custody of the post office. Id. Accordingly, the court held that the plaintiff failed to provide

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either an attorney certificate or nonattorney affidavit and, thus, failed to provide proof of mailing

pursuant to supreme court rules. Id. ¶ 12.

¶ 16 In its analysis, the Huber court reviewed the evolution of Rules 373 and 12(b)(3). 4 Rule

373, as originally adopted, permitted proof of mailing to be evidenced by a postmark affixed by a

United States Post Office. Id. ¶ 13. In response to problems with illegible postmarks and, in some

cases, delays in affixing postmarks, in 1981, the court amended the rule by eliminating postmarks

as a method of proof. Id. Instead, proof of mailing was required by filing either an attorney

certificate or nonattorney affidavit. Id. (citing Ill. S. Ct. R. 373, Committee Comments (rev. Jan.

5, 1981)). The court again amended the rule in 1993, this time to require proof of mailing as

provided in Rule 12(b)(3). Id. Rule 373 was then also made applicable to the notice of appeal filed

in the trial court. Id.

¶ 17 As the plaintiff’s envelope in Huber did not display a postmark, the court had no occasion

to consider whether a legible postmark might suffice as proof of timely mailing. We note, however,

as did the court in Huber, that our appellate court had considered the issue. In the Second District,

a divided court in People v. Hansen, 2011 IL App (2d) 081226, held that a clearly legible postmark

was sufficient proof of timely mailing of notice of appeal. But see People v. Lugo, 391 Ill. App.

4 Pursuant to Illinois Supreme Court Rule 12(b)(3) (eff. Nov. 15, 1992), service by mail was proved, “by certificate of the attorney, or affidavit of a person other than the attorney, who deposited the paper in the mail, stating the time and place of mailing, the complete address which appeared on the envelope, and the fact that proper postage was prepaid.” In 2017, Rule 373 was amended to require that “[p]roof of mailing shall be as provided in Rule 12.” Ill. S. Ct. R. 373 (eff. July 1, 2017). At that same time, Rule 12 was also amended, adding methods of proof for electronic filing and e-mail; renumbering Rule 12(b)(3), (4) and (5); and, as relevant here, amending Illinois Supreme Court Rule 12(b)(4) (eff. Nov. 1, 2016) (proof of mailing by “pro se petitioner[s]”) to Illinois Supreme Court Rule 12(b)(6) (eff. July 1, 2017) (proof of mailing by “self-represented litigant[s]”). Under prior Rule 12(b)(3) and (b)(4) and current Rule 12(b)(5) and (b)(6), proof of timely mailing requires a certificate stating the time and place of mailing and the complete address for delivery.

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3d 995 (2009) (Second District case in which the majority, in construing Rule 373, held that the

postmarks, even if legible, were not included in the plain language of the rule, which mandated

compliance with Rule 12(b)(3), and thus could not serve as proof of timely mailing); see also

People v. Blalock, 2012 IL App (4th) 110041 (postmarks deemed not acceptable as proof of timely

mailing).

¶ 18 Recently, in People v. Humphrey, 2020 IL App (1st) 172837, a different division of this

district determined that it had jurisdiction over the defendant’s appeal where the notice was mailed

in an envelope bearing a legible postmark and date reflecting that it was timely deposited into the

mail. Id. ¶¶ 20-21. The court, in construing Rule 12(b)(6), followed the reasoning in Hansen and

held that the failure to include the requisite certification was not necessarily fatal. Id. The majority

in Humphrey, as did the majority in Hansen, reasoned that a legible postmark on or before the

deadline date was a reliable indication of timely filing by a disinterested third party. Id. ¶ 19.

¶ 19 We agree with the reasoning in Lugo, which for its conclusion relied on well-settled

principles of statutory construction. We note in that regard that our supreme court rules have the

force of law. In re Denzel W., 237 Ill. 2d 285, 294 (2010). Thus, when construing a supreme court

rule, we apply the same principles as when we are construing a statute. People v. Abdullah, 2019

IL 123492, ¶ 25. Paramount among those principles is that where the language of the rule is plain

and clear, we apply the rule as drafted, without resort to other tools. People v. Grever, 222 Ill. 2d

321, 328-29 (2006). It is not our role to write into a rule exceptions or to add language that

otherwise does not exist. See Lulay v. Lulay, 193 Ill. 2d 455, 466 (2000).

¶ 20 Rule 373 and Rule 12(b)(6) are clear. We find it significant that the court, in amending

Rule 373, eliminated postmarks as proof of mailing entirely, even legible ones. Neither the rule,

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as amended, nor the court, subsequently in Huber, make any exception for when, or even if, the

postmark is legible. 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.

¶ 21 We find no basis upon which to ignore the plain language of the rule, which requires for

jurisdiction to be proper a certificate verifying the date, time, and address for delivery. In light of

the history and express purpose for the rule, it is of no moment that other “objective proof of timely

mailing” might be available. 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).

¶ 22 Further, the postage metering process is susceptible to defects and delays, in the same

manner as are postmarks, the genesis for the 1981 amendments to Rule 373. The word “postmark”

and its indicia as a method of proof have long since been abandoned by our court. Since then, the

court has not seen fit to amend to the rule to permit any form of mail system generated verification

absent an accompanying certification. Far be it for this court to determine which methods of proof

may now be presumptively or implicitly included in the court’s rules. Thus, because we find

postmarks to have been excluded as proof of mailing under the rule, we find similarly with respect

to postage meters.

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¶ 23 Based on our review, the record does not establish that this court has jurisdiction, and we

must, therefore, dismiss defendant’s appeal. In reaching our conclusion, we note that proof of

service to establish the timely filing of a notice of appeal is not a task with which defendant lacks

familiarity. Such is demonstrated by the record, which is replete with copies of past certifications,

properly completed and submitted by defendant in compliance with our supreme court’s rules.

Notably, in Huber, the court admonished that had the plaintiff complied with the affidavit or

certificate requirement of Rule 12(b)(3), any uncertainty in the date he mailed his notice of appeal

arising out of the use of the APC label would have been eliminated. We express a similar viewpoint

here with respect to defendant’s failure to comply with the requirement of Rule 12(b)(6).

¶ 24 We note in passing that, not only did our review fail to disclose the requisite verification

of certification, neither did it disclose copies of defendant’s February 21, 2018, motion for forensic

testing nor its April 30, 2018, supplement. Thus, even if jurisdiction were proper, the record would

not support reversal. In the absence of a complete record, we resolve any doubts which may arise

from the record against the appellant (Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984)), and we

indulge every reasonable presumption in favor of the judgment appealed from, including that the

circuit court ruled or acted correctly (Smolinski v. Vojta, 363 Ill. App. 3d 752 ,757-58 (2006)).

¶ 25 III. CONCLUSION

¶ 26 In sum, the record before us does not establish this court has jurisdiction to consider

defendant’s appeal and we must, therefore, dismiss it.

¶ 27 Appeal dismissed.

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No. 1-18-1654

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 01-CR-17131; the Hon. James B. Linn, Judge, presiding.

Attorneys Vernon Tolbert, of Pontiac, appellant pro se. for Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg, Assistant State’s Attorney, of counsel), for the People. Appellee:

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