{ "id": 2468508, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE ROSS, Defendant-Appellant", "name_abbreviation": "People v. Ross", "decision_date": "2003-05-28", "docket_number": "No. 1-01-2346", "first_page": "580", "last_page": "585", "citations": [ { "type": "official", "cite": "339 Ill. App. 3d 580" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "202 Ill. 2d 89", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442050 ], "year": 2002, "pin_cites": [ { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0089-01" ] }, { "cite": "767 N.E.2d 838", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "328 Ill. App. 3d 373", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2183307 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "376-77" }, { "page": "377-78" }, { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/328/0373-01" ] }, { "cite": "495 N.E.2d 517", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "144 Ill. App. 3d 949", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3499417 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "951" }, { "page": "951-52" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/0949-01" ] }, { "cite": "425 N.E.2d 22", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 107", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3100306 ], "year": 1981, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0107-01" ] }, { "cite": "462 N.E.2d 21", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "holding that the rendition of a judgment is a judicial act, while the entry of a judgment upon the record by the clerk is a ministerial act" } ], "opinion_index": 0 }, { "cite": "122 Ill. App. 3d 787", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3523278 ], "year": 1984, "pin_cites": [ { "page": "791-92", "parenthetical": "holding that the rendition of a judgment is a judicial act, while the entry of a judgment upon the record by the clerk is a ministerial act" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0787-01" ] }, { "cite": "521 N.E.2d 1158", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "122 Ill. 2d 64", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549473 ], "weight": 10, "year": 1988, "pin_cites": [ { "page": "84-85" }, { "page": "82" }, { "page": "84-85" }, { "page": "82" }, { "page": "82" }, { "page": "82-83" }, { "page": "82-83" }, { "page": "82" }, { "page": "85" }, { "page": "82-83" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0064-01" ] }, { "cite": "386 U.S. 738", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182629 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0738-01" ] } ], "analysis": { "cardinality": 585, "char_count": 12281, "ocr_confidence": 0.753, "pagerank": { "raw": 4.582967500152737e-08, "percentile": 0.28775982692427243 }, "sha256": "c7412a5b8cb69ab3822e7d153d6b55eb13c5bd1ae07c56d9ebf289a829b1699b", "simhash": "1:f3ba1a3bf74d15f5", "word_count": 2052 }, "last_updated": "2023-07-14T22:12:32.579911+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE ROSS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nFollowing a jury trial, defendant George Ross was found guilty of first degree murder and sentenced to 38 years in prison. The judgment was affirmed on direct appeal. People v. Ross, Nos. 1\u201497\u20144116, 1\u201498\u20140968 cons. (1999) (unpublished order under Supreme Court Rule 23). Defendant subsequently filed a pro se petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 et seq. (West 2000)), which the trial court summarily dismissed as frivolous and patently without merit. On appeal, defendant contends that the summary dismissal was void because the trial court failed to rule on his petition within 90 days and did not notify him of the dismissal order within 10 days after its entry, as required by the Act. Defendant also contends that Public Act 83 \u2014 942, effective November 23, 1983, which amended the Act to provide for summary dismissals, violates the single subject clause of the Illinois Constitution (Ill. Const. 1970, art. IV, \u00a7 8(d)). We affirm.\nDefendant does not challenge the sufficiency of the evidence to support his conviction. The State\u2019s evidence showed that at about 2:30 p.m. on June 10, 1996, several people, including the victim, Ryan Smith, were walking near a high school located at May and 103rd Streets in Chicago. Rodney Daniels and Shaun Jackson testified that defendant was standing in a bank parking lot across the street from the high school. Daniels and Jackson testified that Jonathon Johnson handed defendant a gun and told him to shoot. Defendant fired the gun once into the air and then shot five or six times into the crowd across the street. Smith fell to the ground, bleeding from a gunshot wound to his head. He was taken to the hospital, where he was pronounced dead. Daniels and Jackson identified defendant in a police lineup and at trial as the shooter.\nOfficer Louis Watkins testified that at about 2:30 p.m. on June 10, 1996, he was on furlough and washing his truck near May and 103rd Streets. Officer Watkins heard gunshots, looked, and saw defendant firing a gun. Defendant was still holding the gun when he ran toward Officer Watkins. Officer Watkins drew his gun and identified himself as a police officer. Defendant fled the scene, while codefendant Johnson dropped to the ground. Shortly thereafter, police arrived and spoke with Johnson. The police officers then went to defendant\u2019s home and arrested him.\nFollowing closing arguments, the jury found defendant guilty of first degree murder. He was sentenced to 38 years in prison.\nDefendant appealed his conviction and his assistant public defender filed a motion for leave to withdraw, pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), in which he argued that no issues of merit exist warranting argument on appeal. This court found no issues of arguable merit, granted the public defender\u2019s motion for leave to withdraw, and affirmed the judgment. People v. Ross, Nos. 1\u201497\u20144116, 1\u201498\u20140968 cons. (1999) (unpublished order under Supreme Court Rule 23).\nDefendant filed a pro se postconviction petition on October 30, 2000, alleging ineffective assistance of trial counsel. The trial court found that defendant\u2019s petition was time-barred because he did not file his petition within the statutory time limit. The court nevertheless addressed defendant\u2019s claims and found them to be frivolous and patently without merit. The written order summarily dismissing defendant\u2019s postconviction petition was dated January 19, 2001, but file-stamped February 1, 2001. The report of proceedings from February 1, 2001, shows that the trial court made the following statements:\n\u201cThis order is signed. It is down here from January the 19th. This will be, the petition for post-conviction relief is dismissed, and it is frivolous and patently without merit, pursuant to Chapter 725, Illinois Compiled Statutes, Act 5, Section 122\u20142.1\u2014A, Parentheses 2. That will be, nunc pro tunc from 1-19-01.\nI signed the order on the 19th, and they were in the court file. Evidently, the person on the 19th, didn\u2019t realize they were in there, so that is why it got today. So the clerk is directed to mail a certified copy of the order to the defendant within 30 days from today\u2019s date.\u201d\nOn February 6, 2001, a copy of the order dismissing his post-conviction petition was mailed to defendant. On July 18, 2001, this court granted defendant\u2019s motion for leave to file a late notice of appeal.\nDefendant appeals, contending that the trial court\u2019s summary dismissal of his pro se postconviction petition is void because the court failed to enter the dismissal order within 90 days of the petition being filed as required by section 122\u20142.1(a) of the Act.\nSection 122\u20142.1(a) of the Act provides that \u201c[wjithin 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.\u201d 725 ILCS 5/122\u20142.1(a) (West 2000). This statutory period of 90 days is mandatory, and failure to meet this requirement renders the dismissal void. See People v. Porter, 122 Ill. 2d 64, 84-85, 521 N.E.2d 1158 (1988).\nIn this case, the record indicates that the trial court examined defendant\u2019s pro se postconviction petition and summarily dismissed it on January 19, 2001, within the 90-day statutory period. However, the trial court read the written order into the record on February 1, 2001, nunc pro tunc January 19, 2001.\nAlthough the trial court characterized its order as nunc pro tunc, the judgment summarily dismissing defendant\u2019s petition was entered when the court signed the order on January 19, 2001. See People v. Redman, 122 Ill. App. 3d 787, 791-92, 462 N.E.2d 21 (1984) (holding that the rendition of a judgment is a judicial act, while the entry of a judgment upon the record by the clerk is a ministerial act). \u201cThe ministerial failure of the clerk to enter the judgment into his records does not affect the validity of the judgment.\u201d In re Marriage of Garlinski, 99 Ill. App. 3d 107, 109, 425 N.E.2d 22 (1981). Defendant does not suggest what action, in addition to signing the order, the trial court was required to perform to comply with the Act\u2019s requirement that the court \u201center an order\u201d on the petition. 725 ILCS 5/122\u20142.1(a) (West 2000). We conclude that by signing the dismissal order within 90 days, the trial court \u201centered\u201d an order within the meaning of the Act.\nDefendant next contends that the order dismissing his pro se post-conviction petition was void because the trial court failed to serve him with timely notice of its decision as mandated by subsection 122\u20142.1(a)(2) of the Act.\nSubsection 122\u20142.1(a)(2) of the Act provides:\n\u201cIf 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. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry.\u201d 725 ILCS 5/122\u20142.1(a)(2) (West 2000).\nIn People v. Porter, 122 Ill. 2d 64, 82, 521 N.E.2d 1158 (1988), the Illinois Supreme Court interpreted section 122\u20142.1(a), specifically the meaning of the word \u201cshall.\u201d The court determined that generally the word \u201cshall\u201d indicates a mandatory requirement, but a different interpretation can also be reached depending on the purpose and context of the statute. As previously stated, the court held that the time requirement for summary dismissals set forth in section 122\u2014 2.1(a) is mandatory and failure to meet that provision renders the dismissal void. Porter, 122 Ill. 2d at 84-85.\nHowever, the supreme court made an important distinction when interpreting the written order requirement in subsection 122\u20142.1(a)(2). The purpose of the written order requirement is to facilitate appellate review of a summary dismissal. If the court fails to specify its findings in a written order, the defendant is not prejudiced because the dismissal will be reviewed on appeal. Porter, 122 Ill. 2d at 82. Furthermore, the statute does not state that a dismissal should be held void if the written order requirement is not followed. Porter, 122 Ill. 2d at 82.\nMore importantly, the court concluded that the written order provision of subsection 122\u20142.1(a)(2) must be read as permissive or directory in order to preserve the constitutionality of the statute. Porter, 122 Ill. 2d at 82-83. If the subsection was deemed mandatory, it would impinge on the court\u2019s exercise of judicial discretion and thereby violate the doctrine of separation of powers. Porter, 122 Ill. 2d at 82-83; People v. Price, 144 Ill. App. 3d 949, 951, 495 N.E.2d 517 (1986). Accordingly, the supreme court held that the written notice requirement in subsection 122\u20142.1(a)(2) is not mandatory, and the failure to serve written notice to defendant does not render the dismissal void. Porter, 122 Ill. 2d at 82; Price, 144 Ill. App. 3d at 951-52.\nDefendant contends that the trial court\u2019s failure to meet the notice provision of subsection 122\u20142.1(a)(2) renders the dismissal void based on the Second District Appellate Court\u2019s decision in People v. Redmond, 328 Ill. App. 3d 373, 767 N.E.2d 838 (2002). Initially, the trial court in Redmond summarily dismissed the defendant\u2019s postconviction petition but failed to send him written notice of the dismissal within 10 days; however, upon the defendant\u2019s motion to vacate the dismissal, the trial court \u201c \u2018relate[d] forward\u2019 \u201d the dismissal date to preserve the defendant\u2019s right to appeal. As a result, the revised date of the summary dismissal was not within the 90-day period. Redmond, 328 Ill. App. 3d at 376-77.\nOn appeal, the court in Redmond vacated the dismissal. The court held the word \u201cshall\u201d indicates mandatory intent and that failure to follow the mandatory written notice requirement rendered a dismissal void. Redmond, 328 Ill. App. 3d at 377-78, citing Porter, 122 Ill. 2d at 85. In doing so, the court did not discuss the supreme court\u2019s explicit holding that the written order requirement was an exception to the general rule and, due to the separation of powers doctrine, must be interpreted as \u201cdirectory\u201d rather than mandatory. See Porter, 122 Ill. 2d at 82-83. Instead, the Second District held that every provision in section 122\u20142.1 is mandatory, and the failure to serve defendant with a written order within the time period rendered the dismissal void. Redmond, 328 Ill. App. 3d at 378. Based on the supreme court\u2019s decision in Porter, we decline to adopt the court\u2019s holding in Redmond to this case and find the trial court\u2019s dismissal of defendant\u2019s petition is not void despite the court\u2019s failure to serve notice of the order within 10 days of its entry.\nBecause defendant was allowed to appeal the dismissal, he was not prejudiced by the trial court\u2019s failure to serve notice of its decision within 10 days of entry. Although given the opportunity, defendant does not challenge the trial court\u2019s ruling on the merits of his postconviction petition. We conclude the trial court did not err in dismissing the petition.\nFinally, defendant\u2019s initial brief raises a claim that Public Act 83\u2014942, effective November 23, 1983, which amended the Act to provide for summary dismissals, violated the single subject clause of the Illinois Constitution (Ill. Const. 1970, art. IV, \u00a7 8(d)). However, in his reply brief, defendant concedes that the Illinois Supreme Court has recently held that Public Act 83\u2014942 does not violate the single subject clause. People v. Boclair, 202 Ill. 2d 89, 113 (2002). Accordingly, defendant\u2019s claim is without merit.\nFor the above stated reasons, we affirm the judgment of the circuit court.\nAffirmed.\nSOUTH, EJ., and HOFFMAN, J., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Michael J. Pelletier and Scott E Main, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Linda Halperin, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE ROSS, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201401\u20142346\nOpinion filed May 28, 2003.\nMichael J. Pelletier and Scott E Main, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Linda Halperin, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0580-01", "first_page_order": 596, "last_page_order": 601 }