Appeal from the Circuit Court of the 18th Judicial Circuit, Du Page County, Illinois No. 90--CF--997 Honorable Peter J. Dockery, Judge Presiding
The opinion of the court was delivered by: Presiding Justice Holdridge
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
We must determine whether we have jurisdiction to consider the defendant's appeal of the trial court's first-stage dismissal of her post-conviction petition as frivolous and patently without merit. The People contend that the appeal must be dismissed because the defendant filed her post-conviction petition in the trial court after the expiration of the limitation period establish by section 122-1(c) of the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 (c) (West 1996), and failed to allege any facts showing that the delay was not due to her culpable negligence. We agree with the People, and we therefore dismiss the appeal.
After a bench trial in 1990, the defendant was convicted of four counts of unlawful delivery of a controlled substance and was sentenced to concurrent terms of 6, 10 and 24 years' imprisonment. The judgment of the trial court was affirmed on direct appeal. People v. Caraballo, 231 Ill. App. 3d 685 (1992).
The defendant filed a petition for post-conviction relief on April 22, 1997. In her petition, the defendant made no allegations of fact showing that any delay in filing her petition was not due to her culpable negligence. After the trial court dismissed the petition as frivolous and patently without merit on May 1, 1997, the defendant filed the instant appeal. The People moved to dismiss the appeal contending that this court lacks jurisdiction because the defendant's post- conviction petition was time-barred. After first granting the People's motion, we allowed the defendant's petition for reconsideration and invited the parties to submit supplemental arguments on the issue of jurisdiction.
The statute of limitation applicable to the filing of the defendant's post-conviction petition was the statute that was in effect at the time she filed her petition. See People v. Bates, 124 Ill. 2d 81, 85-86 (1988)(amendment to the Act which shortened the statute of limitations should be applied retroactively to a conviction which occurred prior to its enactment). When the defendant filed her post- conviction petition on April 22, 1997, the Act provided, inter alia, as follows:
"No proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or * * * 3 years from the date of conviction, whichever is sooner, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence." 725 ILCS 5/122-1 (c) (West 1996).
Judgment on the defendant's convictions was entered on November 5, 1990. Her direct appeal was decided on July 21, 1992. No petition for leave to appeal to our supreme court was filed by the defendant. As the People point out, the defendant's post-conviction petition was filed more than four years late under the governing statute. Therefore, the People maintain, that this court lacks jurisdiction to consider the defendant's appeal.
In response, the defendant argues that the filing of a notice of appeal is the only jurisdictional step in the appellate process. People v. Jones, 104 Ill. 2d 268, 283 (1984). She maintains that the statute of limitation is an affirmative defense, and is not at issue until it is raised by the People in its answer to the petition or in a motion to dismiss. Citing People v. Gaultney, 174 Ill. 2d 410, 419 (1996), the defendant contends that since the Act does not authorize the filing of motions to dismiss during the first stage of the post-conviction proceedings, "[c]ertainly, they are prohibited the same in a first-stage appeal." Therefore, according to the defendant, the People can raise the issue of timeliness only during the second stage of post-conviction proceedings in the trial court. We disagree with the defendant's analysis.
This court recently upheld a trial court's sua sponte dismissal of a post-conviction petition in the first stage on the ground that it was untimely. People v. Stenson, 296 Ill. App. 3d 93, 96 (1998). Other courts have similarly upheld first-stage dismissals on the basis of untimeliness. For example, in People v. McClain, 292 Ill. App. 3d 185, 186-87 (1997), the pro se defendant accompanied his untimely post- conviction petition with a motion to file his petition late, asserting that the delay was not the result of his culpable negligence, but rather due to a lock-down at his prison and his inability to engage private counsel to assist him. The appellate court affirmed the trial court's determination that the facts alleged by the defendant were not sufficient to excuse the late filing and its dismissal of the petition as untimely at the first step. McClain, 292 Ill. App. 3d at 188-89.
It is well-settled that a defendant's failure to file a post- conviction petition within the limitation period established in the Act is a jurisdictional bar to his or her action. People v. Heirens, 271 Ill. App. 3d 392, 402 (1995). Likewise, where a statute creates a substantive right unknown at common law and provides the time within which the action must be commenced, failure to commence the action within the prescribed period is a jurisdictional bar to relief. Stenson, 296 Ill. App. 3d at 95. Subject matter jurisdiction cannot be waived, stipulated to, or consented to by the parties; the lack of subject matter jurisdiction can be raised at any time, in any court, directly or collaterally, by the parties or on the court's own motion. Stenson, 296 Ill. App. 3d at 95.
The People contend that in People v. Reed, 42 Ill. 2d 169 (1969), our supreme court held that a post-conviction petition was time-barred when the petitioner made no factual allegations showing that his failure to file the petition in a timely manner was not due to his culpable negligence. Because the record demonstrates that the instant defendant's post-conviction petition also contained no such allegations of lack of culpable negligence, the People maintain that we should dismiss the instant petition based upon the jurisdictional statutory limitation period, regardless of the actual basis for the trial court's ruling. See People v. Nash, ...