FILED October 11, 2013 NO. 4-12-0665 Carla Bender th 4 District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Adams County ERIK C. LONGBRAKE, ) No. 09CF270 Defendant-Appellant. ) ) Honorable ) Chet W. Vahle, ) Judge Presiding. ______________________________________________________________________________

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,

.

¶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

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,

. 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 (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

-2- 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,

,

(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,

,

(1988) (concluding the 30-day time limit provided by

-3- 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,

,

(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,

our supreme court has recognized a postconviction case may proceed at the same time as a direct

appeal. Harris,

,

. As defendant concisely notes in his

brief, citing Harris,

,

, "[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,

,

(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 informa-

-4- tion 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,

,

(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 direc-

tions 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 remand with directions to correct the sentencing judgment to reflect a $1,000 drug

-5- assessment for each conviction.

¶ 22 Reversed and remanded with directions.

-6-