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No. 3--02--0828

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

JUSTICE BARRY delivered the opinion of the Court:

Defendant Demetrius D. Ross appeals from an order of thecircuit court dismissing his petition for postconviction reliefon the ground of untimeliness. For reasons that follow, wereverse and remand for further proceedings.

Defendant was charged in four counts with the December 9,1994, first degree murder and aggravated kidnaping (720 ILCS 5/9--1(a)(1),(3); 10--2(a)(3),(5) (West 1994)) of Hector Muriel. Following negotiations with the State, defendant pleaded guiltyto felony murder. Pursuant to the plea agreement, the Statewould recommend a 60-year sentencing cap. The trial courtaccepted defendant's plea and set the cause for sentencing. Following a hearing on January 6, 1997, the court imposed a 60-year term of imprisonment and admonished defendant of his appealrights. The court stated that before defendant could take anappeal, he would have to file a written motion within 30 days ofsentencing to either reconsider sentence or withdraw his guiltyplea and vacate judgment.

Neither defendant nor his attorney filed a timely postpleamotion. On April 4, 1997, defendant filed a pro se "Petition toWithdraw Guilty Plea and Vacate Sentence," alleging that hisattorney had provided inadequate representation at the pleaproceedings and that his guilty plea was involuntary. The trialcourt denied the petition based on lack of subject matterjurisdiction and untimeliness. On May 6, 1997, defendant filed anotice of appeal. The trial court appointed appellate counsel torepresent defendant.

Appointed appellate counsel moved to dismiss the appealbased on defendant's failure to comply with Supreme Court Rule604(d) (145 Ill. 2d R. 604(d)). At the time, Rule 604(d)provided in relevant part as follows:

"No appeal from a judgment entered upon a plea ofguilty shall be taken unless the defendant, within 30 daysof the date on which sentence is imposed, files in the trialcourt a motion to reconsider the sentence, if only thesentence is being challenged, or, if the plea is challenged,a motion to withdraw his plea of guilty and vacate thejudgment. *** If the motion is denied, a notice of appealfrom the judgment and sentence shall be filed within thetime allowed in Rule 606, measured from the date of entry ofthe order denying the motion." 145 Ill. 2d R. 604(d).

Citing the rule, this court granted counsel's motion anddismissed the appeal in a minute order.

On November 19, 1999, defendant filed a pro sepostconviction petition claiming, inter alia, the trial court'sfailure to admonish him pursuant to Supreme Court Rule 402 (134Ill. 2d R. 402), ineffective assistance of trial counsel andineffective assistance of appellate counsel. After reviewing thepro se petition, attached affidavits and related documents, thepresiding judge entered an order on February 10, 2000. The court found that the petition contained argument, citation toauthorities and other matter in violation of section 122--2 ofthe Post-Conviction Hearing Act (Act) (725 ILCS 5/122--2 (West2000)). The court stated that it could not, however, determinewhether the allegations in the petition were frivolous orpatently without merit. Accordingly, the court dismissed thepetition and appointed attorney Ray Conklin to file an amendedpetition on defendant's behalf.

Ultimately, on July 16, 2002, following the dismissal ofvarious pro se filings and multiple withdrawals and substitutionsof appointed counsel, attorney Mark Jackson filed a "Petition forPost-Conviction Relief" on defendant's behalf. This petitionsummarized defendant's pro se claims of constitutionaldeprivations in the guilty plea proceedings and requested anevidentiary hearing on the claim of ineffective assistance oftrial counsel. The State moved to dismiss on grounds that theNovember 19, 1999, petition was untimely and that defendant'sclaim of ineffective assistance of counsel was frivolous andpatently without merit.

Following a hearing on the State's motion, the court ruledthat defendant's postconviction petition was untimely anddismissed it on that basis. Defendant filed a timely notice ofappeal. Our review is de novo. People v. Coleman, 183 Ill. 2d366, 701 N.E.2d 1063 (1998).

The first issue we must address concerns the limitationperiod applicable to defendant's postconviction petition.Defendant contends that, having failed to "perfect" a directappeal, he had three years from the date of sentencing to file atimely petition under the Act (725 ILCS 5/122--1(c) (West 2002)). The State argues that the time for filing a timely postconvictionpetition expired six months after the due date for a petition forleave to appeal this court's minute order dismissing defendant'sdirect appeal.

Section 122--1(c) of the Act provides:

"No proceedings under this Article shall be commencedmore than 6 months after the denial of a petition for leaveto appeal or the date for filing such a petition if none isfiled *** or 3 years from the date of conviction, whicheveris sooner, unless the petitioner alleges facts showing thatthe delay was not due to his or her culpable negligence." 725 ILCS 5/122--1(c) (West 2002).

A defendant who takes no direct appeal from his conviction hasthree years to file a timely postconviction petition. People v.Reed, 302 Ill. App. 3d 1007, 706 N.E.2d 1059 (1999). The six-month limitation period applies only after an appeal from thejudgment of conviction is taken and the appellate court rendersjudgment. Reed, 302 Ill. App. 3d 1007, 706 N.E.2d 1059 (1999).

Where the defendant's conviction was entered upon a plea ofguilty, however, "no appeal *** shall be taken" without complyingwith the postplea requirements of Rule 604(d). 145 Ill. 2d R.604(d). A notice of appeal filed in the trial court withoutcomplying with the rule vests the appellate court with authorityto consider only the trial court's jurisdiction--not the meritsof the cause. People v. Flowers, 208 Ill. 2d 291, 802 N.E.2d1174 (2003). In such a case, unless the defendant claims thatthe trial court failed to admonish him of his appeal rights, theappellate court's only recourse is to dismiss the appeal. Peoplev. Foster, 171 Ill. 2d 469, 665 N.E.2d 823 (1996). Forpostconviction purposes, a direct appeal dismissed for failure tofile a timely postplea motion pursuant to Rule 604(d) istantamount to no appeal at all. See People v. Teague, 83 Ill.App. 3d 990, 994, 404 N.E.2d 1054, 1058 (1980) (on appeal fromdismissal of postconviction petition, court ruled that denial ofdefendant's motion to file late notice of direct appeal becauseit was untimely had "same effect as the filing of no appeal").

Here, defendant's noncompliance with Rule 604(d) precludedappellate review of defendant's conviction and sentence. Foster,171 Ill. 2d 469, 665 N.E.2d 823; see also Flowers, 208 Ill. 2d291, 802 N.E.2d 1174. Therefore, for purposes of the Act, nodirect appeal was taken. Teague, 83 Ill. App. 3d 990, 404 N.E.2d1054. The Act's six-month limitation period was not triggered,and defendant had three years from the date of his conviction tofile a timely petition for postconviction relief. Reed, 302 Ill.App. 3d 1007, 706 N.E.2d 1059. Defendant's pro se petition ofNovember 19, 1999, was filed within three years of January 6,1997, when defendant's sentence was imposed; therefore, thepetition was not barred by the three-year limitation period.

Next, we must address the State's argument that, even if thethree-year limitation period applies, the court did not err indismissing as untimely the petition filed by attorney Jackson onJuly 16, 2002. In support of this position, the State firstcontends that the trial court summarily dismissed defendant's prose petition on February 10, 2000, when it dismissed the petitionand appointed attorney Conklin to represent defendant in furtherproceedings. Assuming the pro se petition was dismissed asfrivolous and patently without merit, the State argues, the July16, 2002, filing was an untimely successive petition.

The State's argument is legally and factually flawed. Section 122--2.1(a) of the Act requires the trial court toreview a pro se petition within 90 days of its filing anddetermine whether the cause should be summarily dismissed becausethe petition's allegations are frivolous or patently withoutmerit. 725 ILCS 5/122--2.1(a) (West 2002). If the courtdetermines that the petition is frivolous and patently withoutmerit, it must so inform the defendant pursuant to section 122--2.1(a)(2) (725 ILCS 5/122--2.1(a)(2) (West 2002)). A defendantsentenced to imprisonment is not entitled to appointed counsel toamend a petition summarily dismissed under section 122--2.1(a)(2). See 725 ILCS 5/122--4 (West 2002). It is only wherethe petition survives summary dismissal under section 122--2.1(a)(2) that counsel may be appointed for the petitioner andthe cause must be docketed for further proceedings. 725 ILCS5/122--2.1(b) (West 2002).

In this case, the February 10, 2000, order expressly statedthat the court could not determine whether defendant's November19, 1999, petition was frivolous or patently without merit. Therecord shows that the court's dismissal of the petition fornoncompliance with section 122--2 of the Act was a proceduralruling without prejudice. The ruling did not constitute a finaljudgment under section 122--2.1(a)(2) or prevent the cause fromadvancing to second-stage postconviction proceedings. Accordingly, we find that the court did not dismiss the petitionunder section 122--2.1(a)(2), but properly appointed counsel anddocketed the cause for further postconviction proceedingspursuant to section 122--2.1(b).

Last, we reject the State's argument that, since the July16, 2002, petition did not state on its face that it "amended"defendant's pro se petition, it must be considered an untimelysuccessive petition. While the title of attorney Jackson'spleading lacks the word "amended," its contents related todefendant's pro se claims as they appeared in his November 19,1999, petition and in his pro se amendments. Moreover, therecord unequivocally demonstrates that both parties and the trialcourt understood that the date in question for determiningtimeliness of the petition was November 19, 1999, not July 16,2002.

Having determined that defendant's petition forpostconviction relief was erroneously dismissed as untimely, wereverse and remand the cause for further proceedings.

The judgment of the circuit court of Rock Island County isreversed, and the cause is remanded for further proceedings.

Reversed and remanded.

HOLDRIDGE, P.J. and SCHMIDT, J. concurring.