People v. Tolbert ( 2021 )

2021 IL App (1st) 182390-UNo. 1-18-2390
Second Division
June 15, 2021
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 01 CR 17131
)
VERNON TOLBERT, ) Honorable
) James B. Linn,
Defendant-Appellant. ) Judge, presiding.
JUSTICE COBBS delivered the judgment of the court.
Justices McBride and Ellis concurred in the judgment.
ORDER
¶1 Held: We dismiss defendant’s appeal where the record does not establish this court’s
jurisdiction.
¶2 Defendant, Vernon Tolbert, proceeding pro se, appeals from the circuit court’s September
2018 denial of his petition for relief from judgment filed under section 2-1401 of the Code of Civil
Procedure (Code) (735 ILCS 5/2-1401 (West 2018)). On appeal, defendant contends the circuit
court erred when it found the matters raised in his petition were entirely frivolous and not
cognizable under section 2-1401. We dismiss defendant’s appeal for lack of jurisdiction.
No. 1-18-2390
¶3 I. BACKGROUND
¶4 Following a 2002 jury trial, defendant was found guilty of first-degree murder (720 ILCS
5/9-1(a) (West 2000)), and sentenced to 65 years’ imprisonment, which included a 25-year firearm
enhancement. On direct appeal, this court affirmed his conviction and sentence. People v. Tolbert,
354 Ill. App. 3d 94 (2004).
¶5 After defendant exhausted his right to direct review, he initiated a series of collateral
attacks on his conviction, none of which were meritorious. On those occasions in which appellate
review was sought, this court has affirmed. See People v. Tolbert, Nos. 1-04-2451 & 1-04-2531
(cons.) (2006); No. 1-05-2914 (2008) (unpublished order under Supreme Court Rule 23); No. 1-
06-2853 (2007) (unpublished order under Supreme Court Rule 23); No. 1-09-2332 (2011)
(unpublished order under Supreme Court Rule 23); No. 1-12-0373 (2013) (unpublished order
under Supreme Court Rule 23).
¶6 In 2013, pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987),we granted appointed
counsel’s motion to withdraw. Since then, defendant has filed countless pro se pleadings in the
circuit court. With the exception of one such filing, in which defendant successfully sought
retesting of a beer bottle for fingerprints, the filings were deemed unmeritorious. 1
¶7 In July 2018, defendant filed the petition at issue in this appeal, which was denied by the
circuit court in a September 21, 2018 written order. 2 In denying the petition, the court found
1
After the new fingerprint testing was completed, defendant’s appointed attorney, who had
assisted defendant in obtaining the new testing, drafted a successive postconviction petition asserting a
claim of actual innocence. Subsequently, defendant requested that his appointed counsel withdraw and
proceeded pro se.
2
Our review of the record has not yielded a copy of defendant’s 2-1401 petition. We note that on
October 22, 2020, defendant filed a motion seeking to have this court direct the circuit court clerk to
transmit the July 2018 filed petition, which we allowed. A second motion, filed on November 13, 2020, to
the same effect was denied as moot. Finally, a third motion, filed December 15, 2020, sought to have this
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defendant’s claims were frivolous and not cognizable under section 2-1401. It noted defendant’s
petition did not address errors of fact, assert his conviction was void, or “allege any violation that
would support the vacatur of modification of his conviction.”
¶8 On appeal, defendant contends the circuit court erred by finding his claims were frivolous
and not cognizable under section 2-1401.
¶9 II. JURISDICTION
¶ 10 Although the State raises no issue regarding jurisdiction, as a reviewing court, we have an
independent duty to evaluate our jurisdiction to consider defendant’s appeal. People v. Smith, 228
Ill. 2d 95, 104 (2008). Illinois Supreme Court Rule 606(a) and (b) (eff. Mar. 12, 2021) provides
that to appeal a final judgment in a criminal proceeding, the defendant must file a notice of appeal
with the clerk of the circuit court within 30 days after the entry of the final judgment appealed
from. “The filing of a notice of appeal ‘is the jurisdictional step which initiates appellate review.’ ”
Smith, 228 Ill. 2d at 104 (quoting Niccum v. Botti, Marinaccio, DeSalvo & Tameling, Ltd., 182 Ill.
2d 6, 7 (1998)). Unless a notice of appeal is properly filed, a reviewing court has no jurisdiction
and is obliged to dismiss the appeal. Id. Indeed, “the appellate and circuit courts of this state must
enforce and abide by the rules of [the supreme court]” and do not have the authority to excuse
compliance with the filing requirements of the supreme court rules governing appeals. (Emphasis
in original.) People v. Lyles, 217 Ill. 2d 210, 216 (2005). Whether we have jurisdiction is a question
of law, which we review de novo. People v. Salem, 2016 IL 118693, ¶ 11.
court take judicial notice of the July 18, 2018 filing, which we denied. The trial court’s September order,
however, references the 2-1401 petition as having been filed on July 18, 2018.
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No. 1-18-2390
¶ 11 Illinois Supreme Court Rule 373, which is applicable in criminal cases pursuant to Illinois
Supreme Court Rule 612(b)(18) (eff. July 1, 2017), states as follows:
“Unless received after the due date, the time of filing records, briefs or other documents
required to be filed within a specified time will be the date on which they are actually received by
the clerk of the reviewing court. If received after the due date, the time of mailing by an
incarcerated, self-represented litigant shall be deemed the time of filing. Proof of mailing shall be
as provided in Rule 12. This rule also applies to a motion directed against the judgment and to the
notice of appeal filed in the trial court.” (Emphasis added.) Ill. S. Ct. R. 373 (eff. July 1, 2017).
¶ 12 Illinois Supreme Court Rule 12(b)(6) (eff. July 1, 2017) provides that, in the case of service
by mail by an incarcerated pro se litigant, service is proved by certification under section 1-109 of
the Code (735 ILCS 5/1-109 (West 2018)) of the person who deposited the document in the
institutional mail, “stating the time and place of deposit and the complete address to which the
document was to be delivered.” (Emphasis added.) Thus, when a notice of appeal is filed outside
the 30-day period following the order being appealed, the notice is deemed timely if the defendant
attaches a proof of service in compliance with Rule 12(b)(6) showing it was mailed to the clerk of
the circuit court within the 30-day period. See Secura Insurance Co. v. Illinois Farmers Insurance
Co., 232 Ill. 2d 209, 215-16 (2009) (reasoning that the proof of mailing establishes “the date the
document was timely mailed to confer jurisdiction on the appellate court”).
¶ 13 Here, the circuit court entered its order denying defendant’s section 2-1401 petition on
September 21, 2018. Because the thirtieth day fell on a Sunday, defendant’s notice of appeal was
due on the next weekday, Monday, October 22, 2018. See 5 ILCS 70/1.11 (West 2018).
Defendant’s notice of appeal contains a file stamp dated October 24, 2018, which is outside the
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No. 1-18-2390
30-day period in which defendant was required to file his notice of appeal. Accordingly, for this
court to have jurisdiction over defendant’s appeal, the record must establish defendant timely
mailed his petition in accordance with Rules 373 and 12(b)(6). The procedures of which, we might
add, are neither new nor foreign to this defendant.
¶ 14 We are aware that dismissal of an appeal is a harsh result. Thus, we have painstakingly
reviewed this extensive record in search of the requisite documents to support our jurisdiction.
Contained therein is defendant’s notice of appeal dated October 10, 2018. Written on the notice is
an affidavit, also dated October 10, 2018 and signed by defendant, wherein he avers that
“everything stated in the above entitled ‘notice of appeal’ is true and correct to the best of my
knowledge and belief,” and that “it should also be mentioned that the prison notary public is not
available at this time [or] otherwise a notary would be hereon said document.” Defendant does not
state the date on which he filed his notice of appeal but asserts that it “was timely filed within 30
days” of the September 21, 2018, order. The only other paper in the record which appears related
to this appeal is the envelope in which the notice of appeal was purportedly mailed. The envelope
is addressed to the clerk of the circuit court. In the upper right corner of the envelope is a label
from a Pitney Bowes postage meter, which indicates $0.50 of postage was paid for within the 30-
day period.3
¶ 15 We have also reviewed our own records, which indicate that, on November 13, 2018, this
court informed defendant his notice of appeal had been filed in this court and docketed as General
No. 1-18-2390. See Auto-Owners Insurance Co. v. Konow, 2016 IL App (2d) 150860, ¶ 7
3
The stamp from the postage meter is partially legible and appears to read either “OCT 10 2018”
or “OCT 11 2018,” but either date is within the 30-day period.
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No. 1-18-2390
(appellate court may take notice of its own records). However, the letter informing defendant does
not indicate the date on which the notice of appeal was filed in the circuit court.
¶ 16 Critically, missing in the record is the requisite proof of service in compliance with Rule
12(b)(6). Defendant’s affidavit, even though referencing a date within the 30-day timeframe to file
notice, does not establish when his notice of appeal was placed into the institutional mail. See Ill.
S. Ct. R. 12(b)(6) (eff. July 1, 2017). Although the envelope in which the notice was presumably
contained is included in the record, it serves neither as proof that defendant actually placed the
envelope in the institutional mail nor that it was timely placed therein. See Huber v. American
Accounting Association, 2014 IL 117293, ¶¶ 18-19.
¶ 17 Incidentally, in a related case, we had occasion to consider whether a postage meter could
satisfy the dictates of Rule 12(b)(6). See People v. Tolbert, 2021 IL App (1st) 181654. There, in
reviewing the genesis of the amendments to Supreme Court Rules 373 and 12(b)(6), we noted that
postage meters are susceptible to the same deficiencies as postage stamps. Id. at ¶ 22. Thus, we
concluded that postage meters could not satisfy Rule 12’s certification requirements. ¶ 22. But see
People v. Humphrey, 2020 IL App (1st) 172837 (holding that an envelope bearing a legible
postmark was sufficient under Rule 12(b)(6) even absent the requisite certification). It bears noting
that here, the postage meter marking is partially legible, the same issue which prompted
amendments to Rule 373. See Tolbert, 2021 IL App (1st) 181654, ¶ 16. In short, nothing in this
record can be read to comply with the certification requirements of Rule 12(b)(6).
¶ 18 III. CONCLUSION
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¶ 19 We are constrained to follow our supreme court’s rules. Based on our review, the record
does not establish that this court has jurisdiction and, we must, therefore, dismiss defendant’s
appeal.
¶ 20 Appeal dismissed.
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