                       Illinois Official Reports

                               Appellate Court



                  People v. Cooper, 2015 IL App (1st) 132971



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



District & No.    First District, Third Division
                  Docket No. 1-13-2971



Filed             October 14, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 07-CR-20654; the
Review            Hon. Thomas Hennelly, Judge, presiding.



Judgment          Affirmed; mittimus corrected.



Counsel on        Michael J. Pelletier, Alan D. Goldberg, and Robert N. Melching, all of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                  Janet C. Mahoney, Assistant State’s Attorneys, of counsel), for the
                  People.



Panel             JUSTICE MASON delivered the judgment of the court, with opinion.
                  Justices Lavin and Pucinski concurred in the judgment and opinion.
                                             OPINION

¶1       Following a 2010 jury trial, defendant Larry Cooper was convicted of attempted first
     degree murder, by personally discharging a firearm proximately causing great bodily harm,
     and sentenced to 31 years’ imprisonment. We affirmed on direct appeal. People v. Cooper,
     No. 1-10-1371 (2012) (unpublished order under Supreme Court Rule 23). Cooper now
     appeals from the summary dismissal of his pro se postconviction petition, contending that the
     court erred in summarily dismissing his petition as untimely. He also contends, and the State
     agrees, that his mittimus should be corrected to reflect a single conviction for the Class X
     felony of attempted first degree murder.
¶2       Cooper was convicted of the attempted murder and aggravated battery with a firearm of
     Benjamin Clark on September 20, 2007, by personally discharging a firearm proximately
     causing Clark great bodily harm. He was sentenced to concurrent prison terms of 6 years and
     a 25-year firearm enhancement.
¶3       On direct appeal, Cooper contended that his motion to suppress photographic array and
     lineup identifications as unduly suggestive was erroneously denied, trial counsel was
     ineffective for failing to object to inadmissible hearsay (Clark’s hospital-bed description of
     his assailant), his right to confront witnesses was violated (when the court would not allow
     him to cross-examine Clark regarding marijuana usage), the State made improper closing
     arguments, and his mittimus should be corrected to properly reflect his conviction and
     presentencing detention credit. We affirmed, except for directing that the mittimus be
     corrected to reflect 971 (rather than 955) days’ credit and a single conviction for the Class X
     felony of attempted murder, with aggravated battery with a firearm merged.
¶4       In March 2013, following remand, the court corrected the mittimus to reflect 971 days’
     credit. The mittimus still reflects convictions for attempted murder and aggravated battery
     with a firearm, though without a sentence for the latter, and describes the felony class of the
     former as “M” rather than X.
¶5       In April 2013, Cooper filed a pro se motion for extension of time to file a postconviction
     petition. The court denied the motion on May 10, 2013, stating both orally and in the written
     notice of its order that it denied a motion for extension of time.
¶6       Cooper filed his pro se postconviction petition in June 2013, raising various allegations
     of ineffective assistance of trial counsel and alleging ineffective assistance by appellate
     counsel for not raising trial counsel’s ineffectiveness. He also claimed that his firearm
     enhancement constitutes an improper double enhancement due to the common element of
     great bodily harm.
¶7       On July 24, 2013, the court “denied” the postconviction petition, as reflected in a written
     notice and certified report of disposition and in a docket (or “half-sheet”) entry. The notice
     and certified report of the July 24 order was sent to Cooper on August 5. The record contains
     no transcript for the proceedings of July 24; the court reporter averred that the case was on
     the court call for that day but she could not find proceedings for this case in her notes. On
     August 13, 2013, Cooper’s case was called in open court, and the court said:
     “Post-conviction petition denied. Otherwise, it’s back on the call. Prior order to stand. Off
     call.” The record contains no written order or docket entry for August 13. Cooper’s pro se
     notice of appeal is from the July 24 order.


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¶8          Cooper primarily contends that the circuit court erred in summarily dismissing his pro se
       postconviction petition as untimely. He notes that the court made no finding that his petition
       was frivolous or patently without merit, nor did it address the particular claims in his petition.
       Based on this absence of findings and the record before us, Cooper asks us to conclude that
       his petition was improperly dismissed on procedural grounds.
¶9          Section 122-2.1 of the Code of Criminal Procedure of 1963, governing summary
       dismissals, provides: “If 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.”
       725 ILCS 5/122-2.1(a)(2) (West 2012). Notably, the legislature did not merely provide for a
       written order but expressly called for findings. However, our supreme court held in People v.
       Porter, 122 Ill. 2d 64, 81-82 (1988), that this particular provision is merely directory despite
       its use of “shall” because it does not provide that the summary dismissal is void for the lack
       of findings, a lack of findings does not prejudice a defendant’s rights on appeal, and a
       construction that rendered the provision mandatory would violate the separation of powers.
¶ 10        That said, the Porter court also found it “advisable that the trial court state its reasons for
       dismissal” and noted that the purpose of the provision for a written order with findings is to
       facilitate appellate review of summary dismissals. Porter, 122 Ill. 2d at 81-82. As previously
       noted, the record on appeal does not contain either a written order or oral pronouncement
       setting forth the circuit court’s basis for summarily dismissing defendant’s petition. While
       Porter dictates that the lack of findings does not undermine the validity of the order, such
       findings are essential to our review. Further, if a court determines that a postconviction
       petition is frivolous and patently without merit, the petitioner is entitled to know the reasons
       for that determination so that they can be meaningfully addressed on appeal. Indeed, the
       primary argument raised by Cooper on appeal would likely not have arisen if the record on
       appeal contained findings by the circuit court.
¶ 11        Under other circumstances, a trial court’s failure to follow the statutory directive to enter
       an order containing written findings would have prompted either a remand with directions or,
       alternatively, advancement of the petition to second stage proceedings. But for the reasons
       we discuss below, we affirm.
¶ 12        We presume on review of a summary dismissal that the circuit court knew and properly
       applied the law in the absence of an affirmative indication that it did not. People v. Gaultney,
       174 Ill. 2d 410, 420 (1996). Our supreme court has similarly held that, “although factual
       findings may provide an explanation or reason for the trial court’s decision, it is the
       correctness of the court’s ruling, and not the correctness of its reasoning, that is under
       review.” In re Rita P., 2014 IL 115798, ¶ 51; see also People v. Terry, 2012 IL App (4th)
       100205, ¶¶ 39-43 (rejecting claim of improper partial summary dismissal based on court not
       expressly addressing all claims). In light of the foregoing authorities, there is no basis for
       finding error upon this record’s regrettable lack of findings.
¶ 13        Cooper does not rest his argument that the summary dismissal of his petition was
       improperly based on untimeliness upon the absence of findings alone. He argues that the
       court’s August 13 statement that its “prior order” would stand referred to the May 10 denial
       of his extension motion and that the dismissal of his petition was likewise based on
       untimeliness. This argument is based upon two inferences: (i) that when the court referred to
       its “prior order,” it meant the order denying the extension entered on May 10 rather than its

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       decision of July 24, and (ii) that the denial of the extension was based on untimeliness. We
       conclude that the record does not support either inference.
¶ 14        Cooper argues that the circuit court issued no order on July 24, so the reference to a
       “prior order” must have been to the order dated May 10. But as noted above, a written order
       of summary dismissal is not required. Instead, a court summarily dismisses a postconviction
       petition when its decision is entered of record. People v. Perez, 2014 IL 115927, ¶¶ 15, 29
       (citing Ill. S. Ct. R. 272 (eff. Nov. 1, 1990)). Here, the court reached a decision on July 24 to
       dismiss Cooper’s petition, and that decision was clearly communicated to the clerk of the
       court and spread of record, as documented by the July 24 docket or “half-sheet” entry of
       dismissal. The order is further evidenced by the certified report of disposition, referring to a
       July 24 dismissal, sent to Cooper on August 5 before the court’s August 13 oral
       pronouncement at issue. The entry of a dismissal order on July 24 does not depend on the
       record containing a transcript for that day or an order signed by the judge himself. We find it
       significant that the court’s oral and written pronouncements of May 10 refer to a motion for
       extension of time while the docket entry and certified report for July 24 and the court’s oral
       remarks of August 13 all refer to a postconviction petition. Under such circumstances, we
       find that the intent of the court on August 13 was to refer to its July decision on the subject of
       Cooper’s postconviction petition rather than its May decision on a different motion.
¶ 15        We also find that the record does not support an inference that the denial of Cooper’s
       motion for extension of time was based on a finding that the petition was untimely. While a
       court may deny an extension of time based on a finding that cause for an extension has not
       been demonstrated, it may also do so if it finds that an extension is unnecessary as the time
       for filing has not yet passed. The latter applies here, as Cooper’s petition was not untimely
       nor was there a prospect of it being untimely when he sought an extension. A postconviction
       petition must be filed no more than six months after the conclusion of proceedings in the
       United States Supreme Court, six months from the date for filing a certiorari petition with
       that Court, or three years from conviction where there was no direct appeal. 725 ILCS
       5/122-1(c) (West 2012). Following Cooper’s direct appeal, our supreme court denied leave to
       appeal on November 28, 2012. People v. Cooper, No. 114821. The last day for filing a
       certiorari petition was 90 days thereafter (Sup. Ct. R. 13(1)), or February 26, 2013, and six
       months after that date was August 13, 2013. Thus, the deadline to file Cooper’s
       postconviction petition had not passed when he filed his extension motion, when the court
       denied the extension in May 2013, when Cooper ultimately filed his postconviction petition
       in June 2013, or when the court summarily dismissed the petition in July. Thus, there is no
       basis in the record to conclude that Cooper’s postconviction petition was dismissed at the
       first stage based on the trial court’s conclusion that the petition was untimely.
¶ 16        In sum, we see no reason to conclude on this record that the court summarily and
       improperly dismissed Cooper’s petition on the ground of untimeliness. Cooper makes no
       other argument challenging the dismissal of his petition and, notably, does not contend that
       any claim in his petition was arguably meritorious. Issues not raised in an appellate brief are
       deemed waived under Illinois Supreme Court Rules 341(h)(7) and 612(i) (eff. Feb. 6, 2013).
       Because Cooper does not contend on appeal that any of the issues raised in his
       postconviction petition state the gist of a constitutional claim and based on our finding that
       the petition was not dismissed because it was untimely, there is no basis on this record to
       reverse.


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¶ 17       Cooper also contends–and the State agrees–that his mittimus should be corrected to
       properly reflect a single conviction for the Class X offense of attempted murder. We agree
       and indeed so ordered on direct appeal. While the mittimus was partially corrected on
       remand, it erroneously describes attempted murder as a Class M offense and still reflects an
       unsentenced conviction for aggravated battery with a firearm.
¶ 18       Accordingly, pursuant to Illinois Supreme Court Rule 615(b)(2) (eff. Jan. 1, 1967), the
       clerk of the circuit court is directed to correct the mittimus to reflect a single count of
       conviction for the Class X offense of attempted first degree murder. The judgment of the
       circuit court is otherwise affirmed.

¶ 19      Affirmed; mittimus corrected.




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