                                      2018 IL App (1st) 150446

                                            No. 1-15-0446

                                      Opinion filed June 28, 2018 


                                                                             FOURTH DIVISION

                                                    IN THE


                                 APPELLATE COURT OF ILLINOIS


                                           FIRST DISTRICT



     THE PEOPLE OF THE STATE OF                        )      Appeal from the Circuit Court
     ILLINOIS,                                         )      of Cook County.
                                                       )
          Plaintiff-Appellee,                          )
                                                       )
          v.                                           )      No. 08 CR 1570201
                                                       )
     SALVADOR BEGAY,                                   )      The Honorable
                                                       )      John J. Hynes,
          Defendant-Appellant.                         )      Judge, presiding.



       JUSTICE GORDON delivered the judgment of the court, with opinion.
       Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion.


                                             OPINION

¶1             Petitioner Salvador Begay was convicted after a jury trial of aggravated criminal

       sexual abuse and sentenced to three years of felony probation, with the first 90 days being

       served with the Cook County Department of Corrections. See People v. Begay, 2013 IL App

       (1st) 102216-U, ¶¶ 2, 17. No supervised release period was provided. This court affirmed his

       conviction on March 8, 2013 (Begay, 2013 IL App (1st) 102216-U, ¶ 1), and his probation

       terminated satisfactorily on July 3, 2013.
     No. 1-15-0446

¶2            Five months after the satisfactory termination of his probation, he filed a

       postconviction petition, which the trial court dismissed for lack of jurisdiction. In denying his

       motion to reconsider, the trial court found that the petition did not “even get to the first stage”

       due to its lack of jurisdiction and that his counsel’s characterization of the dismissal as a first-

       stage dismissal was incorrect.

¶3            Petitioner now appeals the dismissal, claiming (1) that this was a first-stage summary

       dismissal and the trial court erred in entering it since first-stage dismissals are prohibited

       after 90 days and this dismissal occurred more than 90 days after the petition was filed and

       (2) that petitioner had standing to file a postconviction petition, although he had completed

       his sentence of probation, since he was still required to register as a sex offender.

¶4            For the following reasons we affirm.

¶5                                          BACKGROUND

¶6            Since we are faced with a purely legal question on this appeal and since we already

       set forth in detail the facts of the underlying offense in our prior order, we incorporate that

       prior order by reference. Begay, 2013 IL App (1st) 102216-U, ¶¶ 2-17.

¶7            As noted above, petitioner was convicted after a jury trial of aggravated criminal

       sexual abuse and sentenced to three years of felony probation. Begay, 2013 IL App (1st)

       102216-U, ¶ 2. A “Termination Order,” dated July 3, 2013, states that petitioner complied

       with the conditions of his probation and that “the period of probation is terminated.”

¶8            On May 21, 2014, petitioner’s counsel, filed a “Notice of Motion,” that stated:

                  “On Friday, May 23, 2014, at 9:30 a.m., or as soon thereafter as counsel may be

              heard, I shall appear before the Honorable [trial judge], or any judge sitting in his



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                 stead, in Courtroom 110 of the Cook County Courthouse at [address] in Bridgeview,

                 Illinois, and then and there inform him of the status of the post-conviction petition

                 filed in this cause on December 6, 2013.”

          The notice is signed by petitioner’s counsel, stamped “Filed” by the clerk of the circuit court

          on May 21, 2014, and stamped “Received” by the state’s attorney’s office on “May 21,” with

          no year indicated. Attached to this notice is a “Petition for Post-Conviction Relief,” also

          signed by counsel. The first page of the petition contains three stamps: a “Received” stamp

          by the state’s attorney’s office on December 6, 2013, a “Filed” stamp by the clerk of the

          circuit court on December 6, 2013, and another “Received” stamp by the state’s attorney’s

          office on “May 21,” with no year indicated.

¶9               The last page of the petition is signed, but not dated, by counsel. There are three

          affidavits attached that are signed and notarized on the following dates: (1) October 27, 2013,

          (2) October 18, 2013, and (3) October 16, 2013.

¶ 10             The petition alleges that petitioner is actually innocent and that his trial counsel was

          ineffective for failing to interview and call at trial the three witnesses whose affidavits are

          attached. The substantive claims of the petition are not at issue at this time.

¶ 11             With respect to the filing date of his petition, the State in its appellate brief asserts

          that petitioner “filed a post-conviction petition with two dates on it: December 6, 2013, and

          May 21, 2014.” Similarly, the trial court observed in open court that the petition had two

          filing dates. By contrast, petitioner in his brief asserts that his petition was “filed on

          December 6, 2013.”

¶ 12	            The State asserts that, “the very first day the petition was before [the trial court] for

          consideration” was July 18, 2014, and the court dismissed the petition on that day for lack of

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         jurisdiction. By contrast, petitioner asserts that “[t]he court took no action on the petition

         until July 14, 2014, 225 days after the petition was filed. At that time, the court summarily

         dismissed [it.]”

¶ 13             The first notation appearing in the trial court’s half-sheets after defendant’s successful

         termination of probation on July 3, 2013, is for June 26, 2014. The notation for June 26,

         2014, states, in relevant part: “DF Pet for P.C. relief 1st stage O/C 7/18/14 1st Stage.”

¶ 14             The next transcript of proceedings is for July 18, 2014, and it shows that the State was

         not present. A counsel identified himself for the record and then explained that he was

         appearing on behalf of “the lawyer who filed the PC on behalf of [petitioner].” The trial court

         then ruled as follows, in full:

                     “THE COURT: Well, let her know that she filed this too late. [Petitioner], in

                 order to file a post-conviction petition under the post-conviction act, and the most

                 recent case that kind of lays this out in the Illinois Supreme Court is, People v. Jesus

                 Carrera, C-a-r-r-e-r-a, 239 Ill. 2d. 241, 2010 case.

                     But, it sets forth that the act provides that any person imprisoned in the

                 penitentiary may institute a proceeding under this article. And, the court reiterated

                 that you don’t have to actually be in the penitentiary. The probation period is

                 satisfactory.

                     However, the Supreme Court has held that the act did not require actual

                 incarceration. But, any person—the words, ‘imprisoned in the penitentiary,’ prevent

                 those who have completed their sentence from using the act for [re]medial machinery

                 solely to purge their criminal records. Rather only those whose liberty was actually

                 restrained or entitled to the protection code [sic] for the act.

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       No. 1-15-0446


                    In this case, the defendant received probation—three years probation, on or about

                the date of July 9, of 2010. That probation was terminated satisfactorily on July 3rd,

                2013.

                    This petition—there are two dates on this. They were never called up before the

                Court, by the way. She never came up before the Court on this. There are two stamps

                on this. One being May 21, 2014. But, the prior one was December 6, 2013. Even by

                the earlier stamp, the defendant was not considered imprisoned or in the penitentiary

                that is needed in the act in order to have jurisdiction.

                    So consequently, the Court does not have jurisdiction. And the motion for post-

                conviction relief will be denied. You’re all set.”

         Nothing further was stated that day in open court.

¶ 15            On August 18, 2014, petitioner’s counsel filed a motion to reconsider. The motion,

         which was signed by counsel, stated: “The petition was hand-delivered to the clerk’s office

         by Petitioner’s Counsel.” Immediately after those words, the following words are crossed out

         by hand: “and entered on the clerk’s system (the court’s official docket).” The petition states:

         “Despite filing the petition.” Immediately after these words, the following words are crossed

         out: “and entering an entry indicating that it was filed.” The petition states: “in this case, the

         petition was filed in the clerk’s office [crossed-out words] December 6, 2013.” The crossed-

         out words are: “and the clerk docketed the petition or entered it into the clerk’s system on the

         same day in this case.”

¶ 16        The petition further states: “The instant petition was never placed on this court’s call until

         July 18, 2014, 225 days after the petition was filed [crossed-out words] in the clerk’s office.”

         The crossed-out words are: “and docketed.” Similarly, the petition states: “this court wrongly

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       No. 1-15-0446


         entered a first-stage dismissal more than 90 days after the petition was received in the clerk’s

         office [crossed-out words].” The crossed-out words are: “and docketed.”

¶ 17        A footnote to the motion states, in relevant part, that:

                “[B]etween May and July 2014, Petitoner’s counsel (or her representative) twice went

                to the clerk’s office and filed notices, noticing up the case, but the clerk failed to put

                the case on the call. Petitioner’s counsel repeatedly called a supervisor named *** to

                inquire as to why the clerk was not putting the case on the call, but counsel’s many

                messages were never returned.”

¶ 18            On September 5, 2014, counsel filed an amended motion to reconsider. The amended

         motion contains no cross-outs and alleges, in relevant part, that

                    “1. Petitioner filed his Petition for Post-Conviction Relief on December 6, 2013.

                    2. The petition was hand-delivered to the clerk’s office by Petitioner’s counsel,

                and entered on the court’s official docket (marked file-stamped) that same day.”

¶ 19            On October 3, 2014, the parties appeared in open court: both an assistant state’s

         attorney, as well as the counsel who had filed the petition. With respect to the filing date, the

         court and counsel held the following colloquy:

                    “THE COURT: [Y]ou originally filed your motion for post-conviction relief back

                on December 6, 2013, am I correct there?

                    DEFENSE COUNSEL: That’s correct, yes.

                    THE COURT: All right. And you also claimed that you gave notice to the State’s

                Attorney on that date?

                    DEFENSE COUNSEL: Yes.



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       No. 1-15-0446


                    THE COURT: I see the stamp on here.


                    DEEFNSE COUNSEL: Yes, I did.


                    THE COURT: For whatever reason it was refiled May 21, 2014. But the


                December 6th date of 2013 is the date we are talking about. All right?

                    DEFENSE COUNSEL: Yes.”

¶ 20            The trial court observed that in her motion to reconsider she indicated that the trial

         court had dismissed the petition at the first stage. However, the trial court stated: “That’s not

         what I did.” In response, defense counsel argued that any “consideration as to timeliness” or

         “eligibility for post-conviction relief” could only be “made after a motion by the State.” The

         trial court replied: “Negative. That’s no.” Then the trial court explained that being

         imprisoned or on probation or parole

                “is a requirement. That’s a first step before you can do this. *** We don’t even get to

                the first stage because he is not imprisoned under the statute. *** we don’t get to even

                the first stage here because he does not qualify, he does not meet the qualifications

                under the Act.”

¶ 21            The trial court denied the motion to reconsider, stating:

                    “THE COURT: This is jurisdictional. You don’t even have the right to file this

                because he hasn’t met that. There is no way around it. It is iron clad.

                    The motion to reconsider is denied, and the prior order of July 18th to stand.

                Thank you.”

¶ 22            On November 3, 2014, counsel filed a notice of appeal, and this appeal followed.




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        No. 1-15-0446

¶ 23                                               ANALYSIS

¶ 24              Petitioner appeals the dismissal of his postconviction petition, claiming (1) that the

          dismissal was a first-stage summary dismissal and the trial court erred in entering it more

          than 90 days after the petition was filed and (2) that he had standing to file a postconviction

          petition, although his sentence had terminated, since he was still subject to sex offender

          registration.

¶ 25              For the following reasons, we affirm.

¶ 26                                I. Stages of a Postconviction Proceeding

¶ 27              The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016))

          “provides a method by which persons under criminal sentence in this state can assert that

          their convictions were the result of a substantial denial of their rights under the United States

          Constitution or the Illinois Constitution or both.” People v. Hodges, 234 Ill. 2d 1, 9 (2009);

          People v. Tyler, 2015 IL App (1st) 123470, ¶ 143. Specifically, section 122-1 of the Act

          provides:

                      “(a) Any person imprisoned in the penitentiary may institute a proceeding under

                  this Article if the person asserts that:

                          (1) in the proceedings which resulted in his or her conviction there was a

                      substantial denial of his or her rights under the Constitution of the United States

                      or of the State of Illinois or both[.]” 725 ILCS 5/122-1(a) (West 2016).

¶ 28	             Although the Act uses the words “in the penitentiary,” our supreme court has found

          that the Act also applies to a person serving a sentence of probation or on mandatory

          supervised release or parole. People v. Carrera, 239 Ill. 2d 241, 246 (2010). Thus, the Act

          permits a person under a criminal sentence to challenge his or her conviction or his or her

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        No. 1-15-0446


          sentence for violations of federal or state constitutional rights. People v. Pendleton, 223 Ill.

          2d 458, 471 (2006) (citing People v. Whitfield, 217 Ill. 2d 177, 183 (2005)).

¶ 29             To be entitled to postconviction relief, a petitioner bears the burden of establishing

          that a substantial deprivation of his constitutional rights occurred “in the proceedings that

          produced the conviction or sentence being challenged.” Pendleton, 223 Ill. 2d at 471; People

          v. Waldrop, 353 Ill. App. 3d 244, 249 (2004); 725 ILCS 5/122-1(a)(1) (West 2016).

¶ 30             In noncapital cases, the Act contemplates three stages. Pendleton, 223 Ill. 2d at 471­

          72. At the first stage, the trial court has 90 days to review a petition and may summarily

          dismiss it if the trial court finds that the petition is frivolous and patently without merit. 725

          ILCS 5/122-2.1(a)(2) (West 2016); Pendleton, 223 Ill. 2d at 472. If the trial court does not

          dismiss the petition within that 90-day period, the trial court must docket it for further

          consideration. 725 ILCS 5/122-2.1(b) (West 2016); Pendleton, 223 Ill. 2d at 472.

¶ 31	            If the petition survives this initial review, the process moves to the second-stage,

          where the trial court appoints counsel for the petitioner who cannot afford counsel. 725 ILCS

          5/122-4 (West 2016). Appointed counsel may make any amendments that are “necessary” to

          the petition previously filed by the pro se defendant. People v. Perkins, 229 Ill. 2d 34, 42

          (2007). After counsel has amended the petition, the State may file a motion to dismiss or file

          an answer. 725 ILCS 5/122-5 (West 2016); Pendleton, 223 Ill. 2d at 472. “If the State moves

          to dismiss, the trial court may hold a dismissal hearing, which is still part of the second

          stage.” People v. Wheeler, 392 Ill. App. 3d 303, 308 (2009) (citing People v. Coleman, 183

          Ill. 2d 366, 380-81 (1998)).




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¶ 32            At a second-stage dismissal hearing, a trial court is foreclosed from engaging in any

         fact finding because all well-pleaded facts must be taken as true at the second stage. Wheeler,

         392 Ill. App. 3d at 308 (citing Coleman, 183 Ill. 2d at 380-81).

¶ 33            If the petition proceeds, it advances to a third-stage evidentiary hearing. “[W]hen a

         petitioner’s claims are based upon matters outside the record, the Postconviction Act does not

         intend such claims [to] be adjudicated on the pleadings.” People v. Snow, 2012 IL App (4th)

         110415, ¶ 15; see also 725 ILCS 5/122-6 (West 2016); Pendleton, 223 Ill. 2d at 472-73. At

         an evidentiary hearing, the trial court “may receive proof by affidavits, depositions, oral

         testimony, or other evidence,” and “may order the [defendant] brought before the court.” 725

         ILCS 5/122-6 (West 2016).

¶ 34            When a matter is decided without an evidentiary hearing, we review the trial court’s

         decision under a de novo standard of review. People v. Hommerson, 2014 IL 115638, ¶ 6

         (first-stage summary dismissal); Tyler, 2015 IL App (1st) 123470, ¶ 151 (second-stage

         dismissal (citing Pendleton, 223 Ill. 2d at 473)). Thus, a de novo standard of review applies

         to the case at bar. Under a de novo standard, the reviewing court owes no deference to the

         trial court’s judgment or reasoning. Tyler, 2015 IL App (1st) 123470, ¶ 151 (citing People v.

         Vincent, 226 Ill. 2d 1, 14 (2007). De novo consideration means that the reviewing court

         performs the same analysis that a trial judge would perform. Tyler, 2015 IL App (1st)

         123470, ¶ 151.

¶ 35            In addition, a reviewing court may affirm on any basis found in the record. In re

         Gabriel W., 2017 IL App (1st) 172120, ¶ 31; People v. Miles, 2017 IL App (1st) 132719,

         ¶ 22; People v. Daniel, 2013 IL App (1st) 111876, ¶ 37 (“we may affirm on any basis




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         appearing in the record, whether or not the trial court relied on that basis or its reasoning was

         correct”).

¶ 36                                     II. Statutory Interpretation

¶ 37            This appeal requires us to interpret the words of the Act and decide what the Act

         requires.

¶ 38            “With statutory construction, our primary goal is to ascertain the legislat[ors’] intent,

         and the best indication of their intent is the plain and ordinary meaning of the words they

         chose to use.” Miles, 2017 IL App (1st) 132719, ¶ 25; State of Illinois ex rel. Pusateri v.

         Peoples Gas Light & Coke Co., 2014 IL 116844, ¶ 8 (citing Citizens Opposing Pollution v.

         ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 23). Where the language is plain and

         unambiguous, we apply the statute without resort to further aids of statutory interpretation.

         In re Lance H., 2014 IL 114899, ¶ 11. “When interpreting a statute, we do not read a portion

         of it in isolation; instead, we read it in its entirety, keeping in mind the subject it addresses

         and the drafters’ apparent objective in enacting it.” Miles, 2017 IL App (1st) 132719, ¶ 25;

         People v. Chatman, 2016 IL App (1st) 152395, ¶ 30.

¶ 39            “In addition, whenever possible, every word, clause, and sentence is to be given

         reasonable meaning and shall not be treated as superfluous or rendered void.” Mulry v.

         Berrios, 2017 IL App (1st) 152563, ¶ 9; People v. Harmon, 2015 IL App (1st) 122345, ¶ 68

         (“one of the principles of statutory interpretation is that we should give effect to every word

         and section of the statute”); Speedy Gonzalez Landscaping, Inc. v. O.C.A. Construction, Inc.,

         385 Ill. App. 3d 699, 701 (2008) (“ ‘If possible, courts must give effect to every word,

         clause, and sentence and may not read a statute so as to render any part inoperative,




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         superfluous, or insignificant.’ ” (quoting Newland v. Budget Rent-A-Car Systems, Inc., 319

         Ill. App. 3d 453, 456 (2001)).

¶ 40             Questions of statutory interpretation are reviewed de novo. People v. Schlosser, 2017

         IL App (1st) 150355, ¶ 28; Chatman, 2016 IL App (1st) 152395, ¶ 23. As we observed

         above, “[d]e novo review means that we will perform the same analysis a trial court would

         perform.” Trzop v. Hudson, 2015 IL App (1st) 150419, ¶ 63.

¶ 41                                      III. 90-Day Time Limit

¶ 42             Petitioner argues, first, that the trial court summarily dismissed the petitioner more

         than 90 days after it was filed, which he claims that the Act prohibits. In response, the State

         argues that the trial court dismissed the petition within 90 days after docketing, thereby

         satisfying the statute.

¶ 43             The Act provides that “[a] proceeding shall be commenced by filing with the clerk of

         the court” a petition. 725 ILCS 5/122-1(b) (West 2016). “Petitioner shall also serve another

         copy upon the State’s Attorney ***.” 725 ILCS 5/122-1(b) (West 2016). “The clerk shall

         docket the petition for consideration by the court *** upon his or her receipt thereof and

         bring the same promptly to the attention of the court.” 725 ILCS 5/122-1(b) (West 2016).

         “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.” (Emphases added.) 725 ILCS

         5/122-2.1(a) (West 2016). “If the petition is not dismissed pursuant to this Section, the court

         shall order the petition to be docketed for further consideration ***.” 725 ILCS 5/122-2.1(b)

         (West 2016).

¶ 44             As to the two filing dates, the trial court found, as a matter of fact, and after

         questioning counsel, that the petition was filed on December 6, 2013, and the State does not

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           dispute this factual finding. 1 Thus, the next question for this court is whether the 90-day

           period is counted from the filing or the docketing of the petition.

¶ 45               This division already considered this same question and found that the 90-day period

           is counted from the docketing of the petition. People v. Shief, 2016 IL App (1st) 141022,

           ¶¶ 30-32. Writing on behalf of this division, Justice Ellis explained why:

                   “The remedy of automatic advancement [to the second stage] would force the hand of

                   the judge based on the actions of a distinct governmental official, the clerk. Circuit

                   judges would lose control of their docket based on something entirely outside their

                   control. While that may feel like a distinction without a difference to a prisoner

                   awaiting the adjudication of his postconviction petition, it might be one reason why

                   the General Assembly imposed a consequence for the circuit court’s failure to

                   promptly act on a postconviction petition while not imposing such a remedy for the

                   clerk’s inaction.” (Emphasis in original.) Shief, 2016 IL App (1st) 141022, ¶ 32.

           Based on Shief, we find that the 90-day period is counted from docketing. 2 See also People v.

           Swamynathan, 236 Ill. 2d 103, 116 (2010) (“postconviction petition was properly dismissed

           within 90 days of docketing as required by the Act”). 3

¶ 46               The next issue is when that key moment of docketing occurs. In People v. Brooks,

           221 Ill. 2d 381 (2006), our supreme court explained when the moment of docketing occurs

               1
                  The State’s appellate brief acknowledges that the stamps on the petition “indicat[e] it was
       received and filed on December 6, 2013.”
                2
                  In Shief, the parties agreed that, the first time that defendant mailed in his pro se petition, the
       clerk did not docket it “or notify the court that defendant had sent in a postconviction petition.” Shief,
       2016 IL App (1st) 141022, ¶ 25. Thus, this court did not need to discuss exactly what constituted
       docketing.
                3
                  In Swamynathan, 236 Ill. 2d at 113, the supreme court found that, when a trial court
       recharacterizes a document as a postconviction petition, the 90-day period begins to run from the moment
       the petitioner is admonished by the trial court about the recharacterization of the document. This
       constitutes “docketing” for purposes of the Act. Swamynathan, 236 Ill. 2d at 116.
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         for purposes of the Act. The Brooks defendant had argued that a petition is considered

         docketed for purposes of the Act at the moment when the clerk of the circuit court receives it

         (Brooks, 221 Ill. 2d at 388) and stamps “ ‘Received’ ” on it (Brooks, 221 Ill. 2d at 389). Our

         supreme court rejected that interpretation and found that “[t]he plain meaning of the word

         connotes that the cause is entered on the court’s official docket for further proceedings.”

         Brooks, 221 Ill. 2d at 391. Applying that definition to the facts before it, the court found that

         the “defendant’s postconviction petition was ‘docketed’ within the commonly understood

         meaning of the word *** when the clerk of the court entered the petition into the case file

         and set it for a hearing.” (Emphasis added.) Brooks, 221 Ill. 2d at 391.

¶ 47            In the case at bar, the trial court observed that the petition was “never called up before

         the Court.” After the petition’s filing on December 6, 2013, the half-sheet shows that the

         petition was not docketed and not set for a hearing. “A half-sheet is a sheet on which the

         clerk’s office enters chronological notations indicating the procedural events of a case.”

         People v. Jones, 2015 IL App (1st) 133123, ¶ 8 n.3. A half-sheet entry is also called a

         “docket” entry (People v. Cooper, 2015 IL App (1st) 132971, ¶ 7), and it may be relied on as

         some evidence of certain legal events. People v. Liekis, 2012 IL App (2d) 100774, ¶ 33

         (although the record did not contain a written jury waiver, the half-sheet established that the

         defendant had waived a jury); People v. Brials, 315 Ill. App. 3d 162, 177 (2000) (same). In

         the case at bar, after the petition was refiled on May 21, 2014, it appeared on the half-sheet

         shortly thereafter, and the trial court acted promptly and within 90 days to review it on July

         18, 2014. Thus, the record before us does not show a violation of the 90-day period.

¶ 48            People v. Lentz, 2014 IL App (2d) 130332, cited by petitioner, further supports our

         conclusion. In Lentz, the appellate court observed that the State argued that, “because the


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           legislature chose to use two different words in the statute—filing and docketing—those

           words must be construed as referring to two different acts.” Lentz, 2014 IL App (2d) 130332,

           ¶ 14. The Lentz court concluded: “We have no quarrel with this proposition.” Lentz, 2014 IL

           App (2d) 130332, ¶ 14. Similarly, we agree that, to avoid surplusage, the two words must

           mean different actions. Lysek v. Elmhurst Dodge, Inc., 325 Ill. App. 3d 536, 542 (2001) (“As

           a general rule, courts should avoid interpretations that treat [statutory] language as surplusage

           and should instead attempt to give meaning to all of the words used.”); see also Mitchell v.

           Village of Barrington, 2016 IL App (1st) 153094, ¶ 29 (“The presence of surplusage should

           not be presumed in statutory construction and each word, clause, or sentence must, if

           possible, be given some reasonable meaning.”). Thus, we do not find persuasive the cases

           that have found that filing and docketing are the same action. But see People v. McCaskill,

           2012 IL App (1st) 110174, ¶ 14 (finding that filing and docketing are the same); Gibson v.

           People, 377 Ill. App. 3d 748, 751 (2007) (equating filing with docketing). 4

¶ 49               The Lentz court found that to docket meant “to note the filing of a postconviction

           petition in the official record or docket of a case,” which the Lentz court observed would

           usually, but not always, occur on the same day as filing. Lentz, 2014 IL App (2d) 130332,

           ¶ 14. In short, “the docketing of a petition” meant “its entry into the official record.” Lentz,

           2014 IL App (2d) 130332, ¶ 15. The Lentz court found, in the case before it, that filing and

           docketing had unquestionably occurred on the same day, where (1) the petition was entered

           on the circuit court’s computerized docket sheet and (2) the record showed that the clerk had

           sent a letter to the petitioner’s attorney informing him that the filing fee was now due. Lentz,



               4
                After discussing both McCaskill and Gibson, the Lentz court observed: “it is the supreme court’s
       teaching—its stated definition of docketing, and its ratio decidendi, or reasoning—that we must follow.”
       Lentz, 2014 IL App (2d) 130332, ¶ 13. We agree.
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         2014 IL App (2d) 130332, ¶ 15. In stark contrast to the facts of Lentz, (1) the petition in our

         case was not entered in the circuit court’s half sheets or docket sheets when originally filed

         and (2) the record shows that the clerk of the circuit court took no action until the petition

         was refiled. Thus, applying the Lentz definition of docketing to the facts of our case supports

         our finding that the petition was not docketed when originally filed.

¶ 50                                    IV. Timing of the Dismissal

¶ 51            The trial court found that the statutory 90-day period was not relevant because the

         lack of jurisdiction meant that the statute did not even apply. “ ‘[B]ecause circuit court

         jurisdiction is granted by the constitution, it cannot be the case that the failure to satisfy a

         certain statutory requirement or prerequisite can deprive the circuit court of its “power” or

         jurisdiction to hear a cause of action.’ ” People v. Castleberry, 2015 IL 116916, ¶ 15 (quoting

         LVNV Funding, LLC v. Trice, 2015 IL 116129, ¶ 30). “ ‘A circuit court, on the other hand,

         “is a court of general jurisdiction, which need not look to the statute for its jurisdictional

         authority.” ’ ” Castleberry, 2015 IL 116916, ¶ 15 (quoting LVNV Funding, 2015 IL 116129,

         ¶ 31, quoting Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 530 (2001)). “ ‘ “[A] circuit

         court’s subject matter jurisdiction is conferred entirely by our state constitution.” ’ ”

         Castleberry, 2015 IL 116916, ¶ 15 (quoting LVNV Funding, 2015 IL 116129, ¶ 35, quoting

         Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 334 (2002)). The

         supreme court in Castleberry found that these same rules applied to criminal cases for the

         same reasons. Castleberry, 2015 IL 116916, ¶¶ 16-18. On appeal, the parties phrase the issue

         as whether petitioner had standing rather than whether the court had jurisdiction. The next

         question for us then is whether standing was a permitted consideration at this point in the

         postconviction proceedings.


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¶ 52            In Hommerson, our supreme court explained what can and cannot be considered at

         the first stage of postconviction proceedings. It found that, “at the first stage of proceedings,

         the court should only determine whether the petition alleges constitutional deprivations.”

         Hommerson, 2014 IL 115638, ¶ 10. As a result, a trial court may not consider procedural

         issues, such as timeliness or whether a defendant filed a required verifcation affidavit.

         Hommerson, 2014 IL 115638, ¶¶ 10-11. The supreme court emphasized that, “at the first

         stage of proceedings, the court considers the petition’s substantive virtue rather than its

         procedural compliance.” Hommerson, 2014 IL 115638, ¶ 11.

¶ 53            In the case at bar, the trial court found that there was a step, even before this first

         stage, at which the trial court considers its own jurisdiction. The trial court found that a

         determination of whether a petitioner qualified as “imprisoned” under the Act was required

         to determine the court’s own subject matter jurisdiction. 725 ILCS 5/122-1(a) (West 2016).

         The question is whether this matter is a procedural consideration prohibited by Hommerson.

¶ 54            In some respects, the case at bar is similar to Carrera. In Carrera, our supreme court

         found that a petitioner had no remedy under the Act where his probation had already

         terminated satisfactorily (Carrera, 239 Ill. 2d at 258). However, in Carrera, the petition had

         already proceeded to the second-stage and, thus, our supreme court was affirming a second-

         stage dismissal. Carrera, 239 Ill. 2d at 244, 259. By contrast, in the case at bar, the petition

         has not yet proceeded to the second stage and this is what petitioner is arguing should have

         happened here.




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¶ 55               However, the petitioner in the case at bar suffered little prejudice 5 by an earlier

           review. Shief, 2016 IL App (1st) 141022, ¶ 42 (“Typically, when we consider prejudice, we

           consider prejudice to a party’s ability to properly prepare and present its case.”). Typically,

           when the petition of an indigent prisoner proceeds to the second stage, that is when he or she

           first gains the benefit of counsel. See 725 ILCS 5/122-4 (West 2016). That is the moment

           when counsel is usually appointed. Before then, the trial court is typically reviewing only a

           pro se petition. By contrast, petitioner in the case at bar had the benefit of counsel from the

           petition’s inception. Thus, in the interests of judicial economy and since the issue presented

           here is a purely legal question—whether sex offender registration status qualifies as

           “imprisoned” under the Act—we chose to review this issue, which has been thoroughly

           briefed and argued by counsel on both sides. See People v. Bailey, 2017 IL 121450, ¶ 49

           (“because the question of whether defendant’s motion demonstrates cause and prejudice is a

           question of law and in the interest of judicial economy, we have chosen to review

           defendant’s motion in lieu of remanding the [postconviction petition] to the circuit court”);

           People v. Holman, 2017 IL 120655, ¶ 32 (where the claim in the postconviction petition

           required no factual development and “in the interests of judicial economy,” our supreme

           court chose “to address the merits of the defendant’s claim”).

¶ 56                                             V. Not Imprisoned

¶ 57               For the reasons discussed below, we find that sex offender registration status does not

           qualify as “imprisoned” under the Act. 725 ILCS 5/122-1(a) (West 2016).



               5
                 While the State may have chosen at the second stage not to move to dismiss on this basis,
       defendant cannot object “on behalf of the State” that the State no longer had the choice whether to make a
       motion once the trial court dismissed. Cf. People v. Matthews, 2016 IL 118114, ¶ 21 (“defendant cannot
       object to improper service or lack of personal jurisdiction on behalf of the State”).
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       No. 1-15-0446


¶ 58             As this division recently explained in People v. Jones, 2018 IL App (1st) 151307,

         ¶ 52, sex offender registration does not qualify as punishment. We observe that the Third

         District reached a different finding than we did. People v. Tetter, 2018 IL App (3d) 150243,

         ¶ 3. In a 2-to-1 decision, the Third District found that sex offender registration act constituted

         punishment. Tetter, 2018 IL App (3d) 150243, ¶ 3; Jones, 2018 IL App (1st) 151307, ¶¶ 55­

         61 (discussing Tetter). The State filed a petition for rehearing in Tetter on February 21, 2018,

         and as of May 30, 2018, that petition was still pending. As a result, the Third District’s

         decision is not yet final.

¶ 59             However, with respect to sex offender registration, our supreme court has stated “it is

         worth repeating that sex offender registration is not punishment.” People v. Cardona, 2013

         IL 114076, ¶ 24. Based on Cardona, this court found: “Whether we agree or disagree with

         the reasoning in Tetter, we must follow our supreme court’s precedent until and unless our

         supreme court dictates otherwise.” Jones, 2018 IL App (1st) 151307, ¶ 61.

¶ 60             The supreme court’s decision in Carrera is instructive. In Carrera, as in our case, the

         defendant was sentenced to probation. Carrera, 239 Ill. 2d at 243. In Carrera, as in our case,

         the defendant filed a postconviction petition only after he had completed his sentence of

         probation. Carrera, 239 Ill. 2d at 243. In Carrera, defendant argued that he had standing to

         file his petition because his conviction now made him subject to deportation and the federal

         Immigration and Naturalization Service (INS) had, in fact, instituted deportation proceedings

         against him. Carrera, 239 Ill. 2d at 243, 245. The Carrera court observed that “this court has

         held that the Act does not require actual incarceration as a strict prerequisite to instituting a

         proceeding under the Act.” Carrera, 239 Ill. 2d at 246. As a result, a person may file a

         petition under the Act if he or she is released on mandatory supervised release, on probation,


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         on parole, or on an appeal bond. Carrera, 239 Ill. 2d at 246. However, our supreme court

         found that being subject to deportation did not qualify as being imprisoned for purposes of

         the Act. Carrera, 239 Ill. 2d at 253. The court found that the defendant had “fully served his

         Illinois sentence.” Carrera, 239 Ill. 2d at 253. Similarly, in the case at bar, petitioner has

         fully served his Illinois sentence, because sex registration does not qualify as punishment.

¶ 61             Since sex offender registration is not punishment, we cannot find that a petitioner

         subject to it is thereby “imprisoned” under the Act. 725 ILCS 5/122-1(a) (West 2016); accord

         People v. Downin, 394 Ill. App. 3d 141, 146 (2009) (“we hold that lifetime registration as a

         sex offender is not a constraint on liberty sufficient to bring it within the Act”); People v.

         Stavenger, 2015 IL App (2d) 140885, ¶ 12 (“we reject defendant’s contention that he has

         standing under the Act by virtue of his having to register as a sex offender”). Thus, petitioner

         lacked standing to file his petition under the Act, and the trial court did not err in dismissing

         his petition.

¶ 62             In People v. Ortiz, 235 Ill. 2d 319, 330 (2009), our supreme court observed that “in a

         nondeath case, where a defendant sets forth a claim of actual innocence *** the defendant is

         excused from showing cause and prejudice.” “This court has held that the due process clause

         of the Illinois Constitution affords postconviction petitioners the right to assert a freestanding

         claim of actual innocence based on newly discovered evidence.” Ortiz, 235 Ill. 2d at 331.

         However, petitioner, who is represented by counsel, has not asserted on appeal that he has a

         freestanding claim of actual innocence, separate and apart from the Act and, thus, we do not

         reach that issue. See People v. Shellstrom, 216 Ill. 2d 45, 52 (2005) (courts may

         recharacterize filings in order to aid pro se litigants who may have chosen the wrong vehicles

         for their claims). Similarly, petitioner has not asked us to consider whether his petition


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         qualifies as a section 2-1401 petition. 735 ILCS 5/2-1401 (West 2016); People v. Lawton,

         212 Ill. 2d 285, 299 (2004) (a defendant subject to the Sexually Dangerous Persons Act may

         “utilize section 2-1401 to assert claims of ineffective assistance of counsel”); see also People

         v. Shinaul, 2017 IL 120162, ¶ 8 (although “[a] civil remedy,” section 2-1401 “extends to

         criminal cases” and may be utilized to seek relief from a criminal conviction).

¶ 63             While the result here may seem harsh because petitioner no longer has the remedies

         provided by the Act, and “[w]hile [we are] sympathetic to defendant’s plight, this court

         cannot expand the remedy set forth in the Act in order to bring defendant’s case within the

         reach of the Act.” Carrera, 239 Ill. 2d at 259.

¶ 64                                          CONCLUSION

¶ 65             For the foregoing reasons, we affirm the dismissal of petitioner’s postconviction

         petition.

¶ 66             Affirmed.




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