Appeal from the Circuit Court of Cook County. No. 86-CR-8990. Honorable Deborah M. Dooling, Judge Presiding.
Released for Publication December 24, 1997.
The Honorable Justice Theis delivered the opinion of the court. Quinn, J., concurs. Zwick, J., dissents.
The opinion of the court was delivered by: Theis
The Honorable Justice THEIS delivered the opinion of the court:
This is an appeal from an order of the circuit court dismissing the pro se petition of defendant Arlo Perry (Perry) for post-conviction relief under the Post-Conviction Hearing Act (the Act). 725 ILCS 5/122-1 et seq. (West 1994). In dismissing the untimely filed petition, the circuit court determined Perry's delay in filing was not excused under the Act's "culpable negligence" standard. On appeal, Perry alleges dismissal of his petition was improper for two reasons: (1) the circuit court erroneously failed to consider the issue of Perry's lack of culpable negligence, and (2) Perry's factual allegations established that his delay in filing was excusable. We disagree.
Perry was convicted of murder in 1986. Approximately 30 days later on November 13, 1986, he was sentenced to a 34-year prison term. His conviction and sentence were affirmed on direct appeal. People v. Perry, 183 Ill. App. 3d 534, 540 N.E.2d 379, 132 Ill. Dec. 639 (1989). On October 19, 1992, Perry filed a pro se post-conviction petition alleging various violations of his constitutional rights. The State moved to dismiss the petition as untimely based on the relevant statute of limitations, which provides that a post-conviction petition cannot be filed more than three years after conviction or more than six months after denial of a petition for leave to appeal, whichever is later, unless the petitioner can allege facts showing the delay was not caused by his own culpable negligence. 725 ILCS 5/122-1 (West 1992).
Perry responded by filing an affidavit stating his failure to file within the statutory period was based, in part, on his reliance on a prisoner handbook, which listed 10 years as the time period in which a post-conviction petition could be filed. In his affidavit, Perry stated he came to the Illinois Department of Corrections at Menard in December of 1986. He further claimed:
"I was given a book upon entering the 'IL.dept.of.corr.' sentencing problems and related issues'. A handbook for Illinois prisoners [sic ]."
A copy of the relevant page of the handbook was attached to the affidavit. Perry also alleged in his affidavit that the constant "lock-down" at his prison limited his access to the prison's law library so as to excuse his failure to discover the change in the statute of limitations and his noncompliance with it. Perry's affidavit included an attachment providing dates of "lock-down." After a hearing, the court granted the State's motion to dismiss, finding the defendant failed to file his petition within the statutory period. Perry contends the trial court erred by dismissing the petition.
The statute of limitations for post-conviction petitions was changed, effective January 1, 1992, from 10 years to 3 years from the date the prisoner was found guilty or six months from the date for leave to appeal. 725 ILCS 5/122-1 (West 1992). Perry concedes his petition of October 19, 1992, was filed outside the statutory period, but asserts he was not culpably negligent in failing to comply. We review the demonstration of culpable negligence under the Post-Conviction Hearing Act de novo.
As the supreme court explained in People v. Bates, 124 Ill. 2d 81, 88, 529 N.E.2d 227, 230, 124 Ill. Dec. 407 (1988), the Post-Conviction Hearing Act contains a unique statutory "'safety valve' *** which acts as a substitute for the judicially imposed 'reasonable time' rule" generally used to determine the effect of shortened limitations periods. See Mega v. Holy Cross Hospital, 111 Ill. 2d 416, 420, 490 N.E.2d 665, 667, 95 Ill. Dec. 812 (1986). The Act enables petitioners to avoid the effect of the shortened limitation period by showing their delay in filing was not due to culpable negligence. Bates, 124 Ill. 2d at 88, 529 N.E.2d at 230. To demonstrate the absence of culpable negligence, petitioners must allege facts justifying the delay. Bates, 124 Ill. 2d at 88, 529 N.E.2d at 230.
Freedom from culpable negligence is very difficult to establish. People v. Montgomery, 45 Ill. 2d 94, 256 N.E.2d 802 (1970); People v. Diefenbaugh, 40 Ill. 2d 73, 237 N.E.2d 512 (1968); People v. Villanueva, 174 Ill. App. 3d 791, 529 N.E.2d 87, 124 Ill. Dec. 370 (1988); People v. Harrison, 32 Ill. App. 3d 641, 336 N.E.2d 143 (1975). For example, in Diefenbaugh, the petitioner alleged five separate, specific facts to support the claim that his delay was not due to culpable negligence: (1) he had completed only six grades of school, (2) he was incarcerated during the five-year statutory period applicable at that time, (3) he did not know what the law was, (4) he could not afford an attorney, and (5) he was not given appointed counsel until after the limitations period expired. Diefenbaugh, 40 Ill. 2d at 74, 237 N.E.2d at 513. Faced with these facts, the supreme court determined petitioner's delay was not excusable and stated "none of these reasons are sufficient to demonstrate a lack of culpable negligence on the part of the petitioner and he does not rely upon them on this appeal." Diefenbaugh, 40 Ill. 2d at 74, 237 N.E.2d at 513.
Applying the culpable negligence standard again in Montgomery, the supreme court refused to excuse petitioner's untimely filing despite his submission of psychiatric reports, which the court found "generally indicate a condition of mental disturbance." Montgomery, 45 Ill. 2d at 96, 256 N.E.2d at 803. However, in concluding that petitioner had failed to establish that he was not culpably negligent, the court noted petitioner previously had been determined competent to stand trial. Moreover, the court "carefully examined the several psychiatric classification reports, and 'special progress' reports" and only then determined "it does not appear that defendant was incapable of exercising reasonable diligence in his pursuit of relief." Montgomery, 45 Ill. 2d at 96, 256 N.E.2d at 803.
In this case, the record shows Perry alleged two facts to excuse his delay: (1) the information allegedly given to him in the prisoner handbook, and (2) the "lock-down" at his prison. Perry first argues his reliance on an earlier version of the applicable statute contained in a prisoner ...