2023 IL App (1st) 210582-U
FIFTH DIVISION
April 21, 2023
No. 1-21-0582
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 Cook County.
Plaintiff-Appellee, )
)
v. ) No. 08 CR 17559
)
DEMARCO PHILLIPS, ) Honorable
) Brian K. Flaherty,
Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE DELORT delivered the judgment of the court.
Justices Lyle and Navarro concurred in the judgment.
ORDER
¶1 Held: Defendant’s notice of appeal from the circuit court’s summary dismissal order of
his post-conviction petition divested that court of jurisdiction. Accordingly, we
vacate the court’s subsequent order which vacated the summary dismissal order,
and all later orders of the circuit court, including an order granting the State’s
motion to dismiss defendant’s petition and remand for second-stage proceedings.
No. 1-21-0582
¶2 Defendant Demarco Phillips appeals from the circuit court’s order granting the State’s
motion to dismiss his pro se petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS
5/122-1 et seq. (West 2014)). He claims the circuit court lacked jurisdiction to dismiss his petition.
We agree, and, accordingly, vacate the court’s orders as explained below, and remand for second-
stage proceedings on defendant’s postconviction petition.
¶3 BACKGROUND
¶4 This court recited the facts underlying defendant’s convictions in its order affirming the
circuit court on direct appeal. See People v. Phillips, 2014 IL App (1st) 112874-U. In short, at
defendant’s bench trial, Dolton police detective Major Coleman testified he witnessed defendant
flee from a vehicle Coleman had stopped for a routine traffic violation. Defendant was holding a
firearm. Coleman relayed his location to other officers, and shortly thereafter, Dolton police
detectives Graham and Griffin arrived and pursued defendant on foot. During the pursuit, Graham
heard a gunshot and saw two flashes while he was 20 feet away from defendant. Eventually,
Graham located defendant in the laundry room of an apartment building, a firearm within his reach.
After his arrest, defendant provided a statement, in which he admitted to possessing the firearm
but insisted it belonged to someone else. The circuit court found defendant not guilty of attempt
first degree murder, but guilty of aggravated discharge of a firearm and unlawful use of a weapon
by a felon (UUWF). Following a hearing, the court sentenced defendant to concurrent sentences
of 15 years’ imprisonment for aggravated discharge of a firearm and seven years’ imprisonment
for UUWF.
¶5 On direct appeal, defendant raised multiple challenges to his sentences. This court
affirmed. See Phillips, 2014 IL App (1st) 112874-U.
2
No. 1-21-0582
¶6 On October 2, 2014, defendant filed a pro se petition under the Act, claiming ineffective
assistance of trial counsel and that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by
withholding “the 911 dispatch recording.”
¶7 On March 4, 2015, defendant mailed a motion to appoint counsel, in which he also argued
that his postconviction petition should be advanced to the second stage because the circuit court
had not summarily dismissed it within 90 days of filing, citing 725 ILCS 5/122-2.1 (West 2014).
¶8 At a proceeding on March 27, 2015, the circuit court stated, “PC docketed *** Public
Defender appointed.” An attorney from the Cook County Public Defender’s office then appeared
in court on defendant’s behalf on at least two occasions: May 15, 2015, and August 14, 2015.
¶9 On November 20, 2015, the circuit court entered an order summarily dismissing
defendant’s petition as frivolous and patently without merit. On December 18, 2015, defendant
mailed a notice of appeal from the summary dismissal order.
¶ 10 On March 29, 2016, defendant mailed a letter to the circuit court, in which he asked for “a
copy of the notice of appeal I filed December 18, 2015,” and continued, “Please give me a status
update on the motion I filed December 18, 2015, to reconsider the judge [sic] decision.” There is
no indication in the record, however, that defendant ever filed a motion to reconsider the court’s
summary dismissal order.
¶ 11 On April 1, 2016, the circuit court entered an order vacating the summary dismissal order.
The order states, “It is hereby ordered that the Clerk of the Circuit court correct the computer
system entry of [November 20, 2015] for the above matter,” and that the November 20, 2015 entry
should have simply stated the next court date was April 1, 2016. The petition proceeded to the
second stage, with both parties participating without objection.
3
No. 1-21-0582
¶ 12 On August 25, 2017, the assistant state’s attorney stated, “There is something screwed up
with this case. The Clerk’s system awhile ago says it was dismissed at stage 1, when it was actually
docketed ***. It was docketed awhile ago. Back in 2015.” Counsel continued, “The [Cook County
Public Defender’s office] thought it was disposed of. *** I talked to them this morning. I let them
know it has not disposed of, and that it is still in a stage 2.”
¶ 13 The State filed a motion to dismiss the petition on March 15, 2019. On April 30, 2021, the
parties argued the State’s motion to dismiss, and on May 21, 2021, the circuit court granted the
motion. This appeal followed.1
¶ 14 ANALYSIS
¶ 15 On appeal, defendant’s lone claim is that the circuit court did not have jurisdiction to vacate
its November 20, 2015 summary dismissal order, and proceed to second stage proceedings on his
petition, because his December 18, 2015 notice of appeal divested the court of jurisdiction.
Therefore, according to defendant, the court’s orders after his notice of appeal were void, and this
court should vacate the summary dismissal order (which both parties agree was erroneous), along
with the subsequent orders, and remand for second-stage proceedings.
¶ 16 The Act provides a criminal defendant the opportunity to challenge a conviction on the
grounds that it violates his constitutional rights under the Illinois or United States constitutions, or
both. People v. Eubanks, 2021 IL 126271, ¶ 29. A circuit court reviews a petition filed pursuant to
the Act in three stages. People v. Allen, 2015 IL 113135, ¶ 21. At the first stage, the circuit court
may dispose of a petition by entering an order, within 90 days of filing, which declares the petition
frivolous or patently without merit. Id. If the court does not enter an order within 90 days, the
1
Defendant filed a motion for summary disposition during the pendency of this appeal,
which this court denied.
4
No. 1-21-0582
petition is docketed for second stage review, and the circuit court may appoint counsel if the
defendant is indigent. See 725 ILCS 5/122-2.1 (West 2014); 725 ILCS 5/122-4 (West 2014).
¶ 17 Defendant’s claim centers on whether the circuit court had jurisdiction to vacate its
summary dismissal order. The filing of a notice of appeal typically divests a circuit court of subject
matter jurisdiction. People v. Bounds, 182 Ill. 2d 1, 3 (1998). A circuit court may not enter any
substantive orders following the filing of a notice of appeal, and any such orders are void. See
People v. Abdullah, 2019 IL 123492, ¶ 34. We review de novo whether the circuit court had
jurisdiction to enter an order. Id. ¶ 18.
¶ 18 Here, the circuit court improperly entered a first-stage summary dismissal order after
defendant’s petition advanced to the second stage because 90 days had elapsed since its filing, a
fact which neither party disputes. Additionally, the record is clear that the circuit court entered its
order to vacate summary dismissal on April 1, 2016, months after it lost jurisdiction due to
defendant’s December 18, 2015 notice of appeal. See Bounds, 182 Ill. 2d at 3. Accordingly, we
hold that the court’s April 1, 2016 order, and all subsequent orders, including the May 21, 2021
order granting the State’s motion to dismiss, are void for lack of jurisdiction and must be vacated.
Moreover, because the court’s summary dismissal order was erroneous, we vacate that order as
well, and remand for second-stage postconviction proceedings. 2
2
We note that the State contends the orders after November 20, 2015, were collateral to
the substantive ruling, meaning the circuit court could retain jurisdiction to enter them, regardless
of defendant’s December 18, 2015 notice of appeal. See General Motors Corp. v. Pappas, 242 Ill.
2d 163, 173-74 (2011). This argument fails because while the continuance orders were not
themselves substantive, they were in service of scheduling the hearing on the State’s motion to
dismiss, which the court then granted by making substantive findings on whether the petition made
a substantial showing of a constitutional violation.
5
No. 1-21-0582
¶ 19 We note that we may vacate the summary dismissal here even though defendant only listed
the circuit court’s May 21, 2021 order in the notice of appeal because that order was part of the
procedural progression from the summary dismissal order. See In re Jamari R., 2017 IL App (1st)
160850, ¶ 41 (citing Burtell v. First Charter Service Corporation, 76 Ill. 2d 427, 434-35 (1979)
(appellate court jurisdiction extends to orders in a procedural progression leading to the order
appellant specified in the notice of appeal)). The summary dismissal order, and all subsequent
orders up to and including the grant of the State’s motion to dismiss, were steps in the same
process—the circuit court’s consideration of whether defendant should receive a third-stage
evidentiary hearing regarding his postconviction petition. See People v. Ruddock, 2022 IL App
(1st) 173023, ¶ 57.
¶ 20 The State advances multiple theories as to why the circuit court’s April 1, 2016 order (and
the subsequent orders) are not void, specifically (1) that a circuit court has the inherent authority
to vacate its own orders, (2) defendant filed a postjudgment motion simultaneously with the
December 18, 2015 notice of appeal, rendering the notice ineffective; and (3) the revestment
doctrine obviates any jurisdictional issues.
¶ 21 The first argument fails because that legal maxim simply does not apply; the issue here is
whether the court lost jurisdiction before it attempted to exercise its inherent authority. See
Abdullah, 2019 IL 123492, ¶ 34.
¶ 22 The State next argues that the record suggests defendant filed a motion to reconsider the
circuit court’s summary dismissal order simultaneously with his notice of appeal, and as such, the
notice of appeal had no effect while the motion to reconsider was pending, per Illinois Supreme
Court Rule 606(b) (eff. Jan. 1, 2023).
6
No. 1-21-0582
¶ 23 Rule 606(b) states, in relevant part, “When a timely posttrial or postsentencing motion
directed against the judgment has been filed *** any notice of appeal filed before the entry of the
order disposing of all pending postjudgment motions shall have no effect and shall be stricken by
the trial court.” Ill. S. Ct. R. 606(b) (eff. Jan 1, 2023). We agree with the State that had defendant
filed such a motion, his December 18, 2015 notice of appeal would have had no effect until that
motion’s resolution. Unfortunately for the State, the record is clear that defendant never filed a
postjudgment motion. The docket contains no mention of a motion to reconsider. A copy of the
motion, or any document related to it, are also absent from the record. The only mention of such a
motion is in defendant’s March 29, 2016 letter to the circuit court, which has no legal effect. A
litigant’s reference to a motion that he intended to file, but never did, cannot be considered as a
filed motion by a reviewing court. See Knapp v. Bulun, 392 Ill. App. 3d 1018, 1027-1028 (2009).
Contrast this to the December 18, 2015 notice of appeal, which appears on the docket, and in the
record with a court stamp. The only conclusion we can draw from the record on appeal is defendant
did not file a postjudgment motion, and accordingly, the December 18, 2015 notice of appeal
divested the court of jurisdiction.
¶ 24 The State contends that because it is the appellant’s responsibility to provide a complete
record, and a reviewing court must construe any deficiency in the record against the appellant, we
should find that defendant filed a postjudgment motion based on his letter, then construe the
motion’s absence from the record against him. See Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92
(1984). This argument must fail because there is no indication that something is absent from the
record which we could then construe against defendant. Instead, the record is clear that defendant
never filed a motion to reconsider, even if we read defendant’s letter as suggesting his intent to
have done so. Finally, the State argues that the fact that the clerk apparently did not transmit the
7
No. 1-21-0582
notice of appeal to the appellate court suggests a motion to reconsider was filed, but this amounts
to pure speculation.
¶ 25 The State’s final argument is that we should apply the revestment doctrine to find the circuit
court regained jurisdiction after defendant’s December 18, 2015 notice of appeal due to the parties’
conduct. The revestment doctrine is an exception to the general rule that a circuit court loses
jurisdiction over a matter 30 days after the entry of final judgment. People v. Bailey, 2014 IL
115459, ¶ 8. A court may apply the revestment doctrine only when proceedings occur after 30 days
have elapsed from a final judgment, and both parties, “(1) actively participate in the proceedings;
(2) fail to object to the untimeliness of the late filing; and (3) assert positions that make the
proceedings inconsistent with the merits of the prior judgment and support the setting aside of at
least part of that judgment.” (Emphasis in original.) Id. ¶ 25. Reviewing courts have only applied
the doctrine when the circuit court loses jurisdiction due to the lapse of 30 days after a final
judgment. Wierzbicki v. Gleason, 388 Ill. App. 3d 921, 928 (2009).
¶ 26 We hold that application of the revestment doctrine is inappropriate here. First, the circuit
court did not lose jurisdiction because 30 days elapsed from a final judgment; it lost jurisdiction
because defendant filed a timely notice of appeal. In considering this exact scenario in Wierzbicki,
this court held that the revestment doctrine should not apply when the circuit court loses
jurisdiction because a party filed a timely notice of appeal. Id. at 927-930. The Wierzbicki court
explained that this is because any circuit court order entered after that court loses jurisdiction is
void, and “a party may challenge a void order at any time and [this] claim may not be waived.” Id.
at 930 (citing People v. Brown, 225 Ill. 2d 188, 195 (2007)). Furthermore, even if the revestment
doctrine could theoretically apply to this situation, the elements would not be satisfied because the
State’s conduct was not inconsistent with the merits of the summary dismissal order. See Bailey,
8
No. 1-21-0582
2014 IL 115459, ¶ 25. Instead, the State filed a motion to dismiss in which it echoed the circuit
court’s reasoning for summarily dismissing the petition.3
¶ 27 We acknowledge that remand may be a frustrating outcome here. Defendant does not argue
his underlying claims are meritorious, and there have already been years of second-stage
proceedings we must now declare void. As explained above, however, the law demands this
outcome. Furthermore, upon remand, postconviction counsel will have the opportunity to review
the petition and amend if appropriate, meaning the second stage proceedings may not be identical
to the previous, voided proceedings. See People v. Cotto, 2016 IL 119006, ¶ 27.
¶ 28 CONCLUSION
¶ 29 Defendant filing of a timely notice of appeal from the circuit court’s erroneous summary
dismissal order divested the circuit court of jurisdiction. Accordingly, we vacate the court’s
November 20, 2015 summary dismissal order, and all subsequent orders in this matter, and remand
for second-stage proceedings.
¶ 30 Vacated and remanded.
3
The State also argues that we should only consider whether its conduct was inconsistent
with the finality of the judgment at issue, not the merits, citing People v Salcedo, 2011 IL App
(1st) 083148, ¶ 28. Bailey, however, directly refutes this interpretation of the revestment doctrine.
Bailey, 2014 IL 115459, ¶¶ 18 to 25.
9
People v. Phillips
Court: Appellate Court of Illinois
Date filed: 2023-04-21
Citations: 2023 IL App (1st) 210582-U
Copy Citations