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                               Appellate Court                           Date: 2018.07.25
                                                                         13:22:58 -05'00'




                  People v. Chapman, 2018 IL App (1st) 163045



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           VERNON CHAPMAN, Defendant-Appellant.



District & No.    First District, Sixth Division
                  Docket No. 1-16-3045



Filed             April 27, 2018



Decision Under    Appeal from the Circuit Court of Cook County, No. 07-CR-17363; the
Review            Hon. Mary Margaret Brosnahan, Judge, presiding.



Judgment          Vacated and remanded.


Counsel on        James E. Chadd, Patricia Mysza, and Jessica D. Ware, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
                  and Brian K. Hodes, Assistant State’s Attorneys, of counsel), for the
                  People.



Panel             PRESIDING JUSTICE HOFFMAN delivered the judgment of the
                  court, with opinion.
                  Justices Cunningham and Connors concurred in the judgment and
                  opinion.
                                               OPINION

¶1        The defendant, Vernon Chapman, appeals from an order of the circuit court entered on
     October 13, 2016, dismissing his amended petition under the Post-Conviction Hearing Act
     (Act) (725 ILCS 5/122-1 et seq. (West 2014)), which sought relief from a judgment of
     conviction entered against him on July 14, 2008, based upon his plea of guilty to one count of
     criminal drug conspiracy (720 ILCS 570/405.1(a) (West 2006)). For the reasons that follow,
     we vacate the circuit court’s order of October 13, 2006, for want of jurisdiction and remand the
     matter for further proceedings.
¶2        The defendant pled guilty to a single count of criminal drug conspiracy and was sentenced
     to six years’ imprisonment, including a period of mandatory supervised release. Thereafter, the
     defendant filed a petition under the Act, seeking relief from his conviction and sentence. On
     February 13, 2014, the circuit court entered an order dismissing that petition based on a finding
     that the defendant lacked standing. The defendant appealed, and on February 5, 2016, this
     court issued its order, reversing the circuit court’s order dismissing the defendant’s petition
     and remanding the matter for first-stage proceedings under the Act. People v. Chapman, 2016
     IL App (1st) 140724-U. On April 18, 2016, the defendant filed an amended petition under the
     Act.
¶3        Our mandate in Chapman was filed with the clerk of the circuit court on October 18, 2016.
     On October 13, 2016, five days prior to the filing of our mandate, the circuit court summarily
     dismissed the defendant’s amended petition. The defendant filed the instant appeal,
     challenging that order on jurisdictional grounds.
¶4        When a timely notice of appeal has been filed, the jurisdiction of the appellate court
     attaches, and the circuit court is divested of jurisdiction. People v. Perry, 2014 IL App (1st)
     122584, ¶ 13. The judgment of the appellate court becomes final when entered. However, it is
     the filing of the mandate that reinvests jurisdiction in the circuit court. Hickey v. Riera, 332 Ill.
     App. 3d 532, 543 (2001). After the filing of a notice of appeal and prior to the filing of the
     appellate court’s mandate, the circuit court lacks jurisdiction to enter any order of substance in
     the cause. Brownlow v. Richards, 328 Ill. App. 3d 833, 836-37 (2002). An order entered by the
     circuit court in the absence of jurisdiction is void. People v. Davis, 156 Ill. 2d 149, 155 (1993).
¶5        In this case, the circuit court entered its order summarily dismissing the defendant’s
     amended petition for postconviction relief five days prior to the filing of this court’s mandate
     in Chapman. The order is therefore void for want of jurisdiction and must be vacated. The
     State has conceded the issue and also requests that we vacate the circuit court’s order of
     October 13, 2016, and remand the matter back to the circuit court.
¶6        The parties disagree, however, on the procedure to be followed by the circuit court on
     remand. The defendant argues that we should remand the matter to the circuit court with
     directions to conduct a second-stage proceeding under the Act (see 725 ILCS 5/122-5 (West
     2016)) on his amended petition. He contends that more than 90 days have passed since the
     filing of the amended petition, and as a consequence, it must be advanced to the second stage
     with the appointment of counsel. The State argues that the matter should be remanded for a
     first-stage proceeding as this court ordered in Chapman, 2016 IL App (1st) 1400724-U, ¶ 20.
     The State reasons that the 90-day period provided for consideration of the defendant’s
     amended petition (see 725 ILCS 5/122-2.1 (West 2016)) never expired from the date that the


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       circuit court was reinvested with jurisdiction over this matter on October 18, 2016, and the
       filing of the defendant’s notice of appeal on November 4, 2016. We agree with the State.
¶7          By statute, the circuit court is required to examine a postconviction petition within 90 days
       of its filing and docketing. 725 ILCS 5/122-2.1(a) (West 2016). It is during this period that the
       petition may be dismissed if the circuit court determines it to be frivolous or patently without
       merit. 725 ILCS 5/122-2.1(a)(2) (West 2016). If a postconviction petition is not dismissed
       within that 90-day period, it must be advanced to the second stage with the appointment of
       counsel. People v. Boclair, 202 Ill. 2d 89, 100 (2002). The circuit court lacks the statutory
       authority to summarily dismiss a postconviction petition after the expiration of the 90-day
       period. People v. Brooks, 221 Ill. 2d 381, 389 (2006).
¶8          In this case, the defendant’s amended petition was filed on April 18, 2016, and the 90-day
       period would have expired on July 17, 2016. However, the circuit court had no jurisdiction
       over the matter for that entire period due to the pendency of the defendant’s earlier appeal and
       could not, therefore, examine or enter any order on the defendant’s amended petition. To
       accept the defendant’s argument would eviscerate the circuit court’s ability to dismiss
       postconviction petitions that are frivolous or patently without merit. A defendant could
       circumvent the circuit court’s ability to summarily dismiss a meritless postconviction petition
       by filing the petition at a time when the circuit court had no jurisdiction to address it due to the
       pendency of the defendant’s direct appeal. We believe, therefore, that only the period of time
       during which the circuit court has jurisdiction to examine a postconviction petition and enter
       an order thereon shall be considered in computing the 90-day dispositional period set forth in
       section 122-2.1(a) of the Act.
¶9          The circuit court was reinvested with jurisdiction over this case on October 18, 2016, and
       again divested of jurisdiction on November 4, 2016, when the defendant filed his notice of
       appeal from the October 13, 2016, order. As a consequence, the circuit court possessed
       jurisdiction over the defendant’s amended postconviction petition for a period of only 17 days.
       We conclude, therefore, that 73 days remain in the 90-day period within which the circuit court
       is required to examine the defendant’s amended petition and enter an order thereon.
¶ 10        Based upon the foregoing analysis, we vacate the circuit court’s order of October 13, 2016,
       and remand this matter for first-stage proceedings under the Act on the defendant’s amended
       petition.

¶ 11      Vacated and remanded.




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