                            ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Longbrake, 2013 IL App (4th) 120665




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      ERIK C. LONGBRAKE, Defendant-Appellant.



District & No.               Fourth District
                             Docket No. 4-12-0665


Filed                        October 11, 2013


Held                         The trial court’s sua sponte dismissal of defendant’s postconviction
(Note: This syllabus         petition after the mandatory 90-day period was reversed and the cause
constitutes no part of       was remanded for second-stage proceedings on the petition, and based on
the opinion of the court     section 411.2(a)(3) of the Illinois Controlled Substances Act, which
but has been prepared        provides for a $1,000 assessment for a Class 2 felony, the sentencing
by the Reporter of           judgment showing a $2,000 drug assessment for each of defendant’s two
Decisions for the            Class 2 felonies of unlawful delivery of a controlled substance was
convenience of the           corrected to show a $1,000 drug assessment for each conviction.
reader.)



Decision Under               Appeal from the Circuit Court of Adams County, No. 09-CF-270; the
Review                       Hon. Chet W. Vahle, Judge, presiding.



Judgment                     Reversed and remanded with directions.
Counsel on                 Michael J. Pelletier and Thomas A. Lilien, both of State Appellate
Appeal                     Defender’s Office, for appellant.

                           Jonathan H. Barnard, State’s Attorney, of Quincy (Patrick Delfino,
                           Robert J. Biderman, and Luke McNeill, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      PRESIDING JUSTICE STEIGMANN delivered the judgment of the
                           court, with opinion.
                           Justices Appleton and Knecht concurred in the judgment and opinion.




                                              OPINION

¶1           In October 2009, a jury convicted defendant, Erik C. Longbrake, of two counts of
        unlawful delivery of a controlled substance (720 ILCS 570/401(d) (West 2008)). The trial
        court later sentenced him to concurrent five-year prison terms. As part of his sentence, the
        court ordered defendant to pay a $2,000 drug assessment for each count. In September 2011,
        this court affirmed defendant’s convictions and sentences, but we did not issue our mandate
        until January 18, 2012. People v. Longbrake, 2011 IL App (4th) 100030-U.
¶2           On October 13, 2011, defendant filed a petition for postconviction relief pursuant to the
        Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2010)). On January
        6, 2012, the trial court sua sponte dismissed defendant’s petition with leave to refile,
        concluding it was not ripe for review because defendant’s appeal was still pending and the
        trial court did not have access to the trial transcripts. Following this court’s mandate,
        defendant refiled his postconviction petition on February 23, 2012. The court dismissed this
        petition on May 16, 2012, finding it was patently without merit and failed to state the gist of
        a constitutional claim.
¶3           Plaintiff appeals, arguing that the trial court erred by (1) sua sponte dismissing his
        October 13, 2011, postconviction petition without prejudice and with leave to refile and (2)
        dismissing his petition as frivolous and patently without merit on May 16, 2012, more than
        90 days after he first filed his petition. Defendant also argues that the $2,000 drug assessment
        for each count must be reduced to $1,000 each. We agree and reverse.

¶4                                     I. BACKGROUND
¶5         In October 2009, a jury convicted defendant of two counts of unlawful delivery of a
        controlled substance (720 ILCS 570/401(d) (West 2008)). In January 2010, after denying his

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       posttrial motion, the trial court sentenced defendant to concurrent five-year prison terms. The
       court also ordered a $2,000 assessment for each of the two drug convictions. In September
       2011, this court affirmed defendants convictions and sentences. Longbrake, 2011 IL App
       (4th) 100030-U. Appellate counsel immediately filed a petition for leave to appeal, which
       the Illinois Supreme Court denied on November 30, 2011. People v. Longbrake, No. 113155
       (Ill. Nov. 30, 2011).
¶6          On October 13, 2011–while his appeal was pending–defendant filed a petition for
       postconviction relief pursuant to the Act. On January 6, 2012, the trial court entered an order
       dismissing the petition sua sponte with leave to refile, finding defendant’s petition was not
       ripe for consideration because the appellate court had not yet filed its mandate or returned
       the transcript to the trial court, thus precluding the court from reviewing the transcript to
       consider the allegations of constitutional error.
¶7          On January 18, 2012, this court issued our mandate ending defendant’s appeal. On
       February 23, 2012, defendant refiled his postconviction petition. On May 16, 2012, the trial
       court entered a handwritten order denying defendant’s petition and noting a formal order
       would follow. On June 12, 2012, a formal order was entered that dismissed the petition as
       patently without merit and failing to state the gist of a constitutional claim.
¶8          This appeal followed.

¶9                                          II. ANALYSIS
¶ 10       Plaintiff argues that the trial court erred by (1) sua sponte dismissing his October 13,
       2011, postconviction petition without prejudice and with leave to refile and (2) dismissing
       his petition as frivolous and patently without merit on May 16, 2012, more than 90 days after
       he first filed his petition. Defendant also argues that the $2,000 drug assessment for each
       count must be reduced to $1,000 each. We address defendant’s arguments in turn.

¶ 11               A. Dismissal of the October 13, 2011, Postconviction Petition
¶ 12        The dismissal of a postconviction petition without an evidentiary hearing is reviewed
       de novo. People v. Harris, 224 Ill. 2d 115, 123, 862 N.E.2d 960, 965 (2007).
¶ 13        The Act sets out a three-stage process for consideration of a postconviction petition. In
       the first stage of review, the circuit court must examine the petition within 90 days of its
       filing and either (1) enter an order dismissing it as frivolous or patently without merit or (2)
       docket it for further consideration at the second stage of the postconviction proceedings. 725
       ILCS 5/122-2.1 (West 2010). This 90-day time limit is mandatory. See People v. Porter, 122
       Ill. 2d 64, 82-85, 521 N.E.2d 1158, 1165-66 (1988) (concluding the 30-day time limit
       provided by the statute at that time was mandatory). A court’s failure to comply with the
       mandatory 90-day time limit renders any subsequent summary dismissal void. People v.
       Brooks, 221 Ill. 2d 381, 389, 851 N.E.2d 59, 63 (2006).
¶ 14        In this case, the trial court dismissed defendant’s October 13, 2011, postconviction
       petition, concluding it was not ripe for consideration because the appellate court had not yet
       issued its mandate and, thus, the circuit court did not have access to the transcripts. However,


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       our supreme court has recognized a postconviction case may proceed at the same time as a
       direct appeal. Harris, 224 Ill. 2d at 126, 862 N.E.2d at 967-68. As defendant concisely notes
       in his brief, citing Harris, 224 Ill. 2d at 126-29, 862 N.E.2d at 967-69, “[t]here is no basis
       in either the language of the Act or the Supreme Court’s jurisprudence for a circuit court to
       hold a petition in abeyance during a direct appeal or to dismiss the petition without prejudice
       to re-fil[e] after the conclusion of the appeal.”
¶ 15        More important, although the trial court’s concern that it was unable to review the
       transcripts is understandable, the absence of the record simply makes no difference because
       the 90-day time limit is absolute. “[I]n considering a postconviction petition at the first stage
       of the proceedings, the court can examine the following: ‘the court file of the proceeding in
       which the petitioner was convicted, any action taken by an appellate court in such
       proceeding[,] and any transcripts of such proceeding.’ ” People v. Dorsey, 404 Ill. App. 3d
       829, 833, 942 N.E.2d 535, 539 (2010) (quoting 725 ILCS 5/122-2.1(c) (West 2008)). Indeed,
       if the court presided over the hearing from which the defendant bases his postconviction
       petition, the court may consider its notes of the proceedings and its recollections, or it may
       rely on its experience. The overarching, paramount requirement is that the court must act
       within 90 days based upon whatever information it possesses if it is going to dismiss the
       petition at the first stage on the grounds that it is frivolous or patently without merit. If the
       court fails to enter an order dismissing a postconviction petition as frivolous or patently
       without merit within 90 days, it must docket the petition for second-stage proceedings. 725
       ILCS 5/122-2.1 (West 2010).
¶ 16        We reject the State’s contention that any error was harmless because the trial court
       allowed him to refile after the mandate was issued. Given the clear statutory mandate,
       harmless error analysis is not appropriate if the 90-day deadline is not met. Accordingly, we
       remand for second-stage proceedings pursuant to the Act (725 ILCS 5/122-4 to 122-6 (West
       2010)).

¶ 17                                    B. Drug Assessments
¶ 18       Defendant also contends that, pursuant to statute, the $2,000 drug assessment for each
       count must be reduced to $1,000 each. The State concedes this issue. We accept the State’s
       concession.
¶ 19       A sentence in conflict with a statute is void and may be challenged at any time. People
       v. Roberson, 212 Ill. 2d 430, 440, 819 N.E.2d 761, 767 (2004). Defendant was convicted of
       two Class 2 felonies. 720 ILCS 570/206(b)(1)(xiv), 401(d) (West 2008). Section 411.2(a)(3)
       of the Illinois Controlled Substances Act provides for a $1,000 assessment for a Class 2
       felony. 720 ILCS 570/411.2(a)(3) (West 2008). Accordingly, we remand to the trial court
       with directions to correct the sentencing judgment to show a $1,000 drug assessment for each
       conviction.

¶ 20                                  III. CONCLUSION
¶ 21      For the reasons stated, we reverse the trial court’s sua sponte dismissal of defendant’s
       October 13, 2011, postconviction petition and remand for second-stage proceedings; we also

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       remand with directions to correct the sentencing judgment to reflect a $1,000 drug
       assessment for each conviction.

¶ 22      Reversed and remanded with directions.




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