November 17, 1999
THE PEOPLE OF THE STATE OF ILLINOIS,
Appeal from the Circuit Court for the 12th Judicial Circuit Will County, Illinois No. 93-CF-2274 Honorable Stephen White
The opinion of the court was delivered by: Justice Koehler
The petitioner, John Arias, appeals the Will County circuit court's dismissal of his petition for post-conviction relief after it determined that his petition did not include sufficient facts from which the circuit court could conclude that the petitioner made a valid claim of deprivation of a constitutional right and thus, his petition was patently without merit. 725 ILCS 5/122**2.1(a)(2) (West 1994). In deciding whether the circuit court erred, we must answer the following question: May a circuit court review the merits of an untimely post-conviction petition when the petitioner failed to allege facts in his petition showing that the delay was not due to his culpable negligence? Although the circuit court erred in reviewing the merits of the petition, we conclude that it did not err in dismissing the petition because it was untimely as a matter of law. Accordingly, we affirm.
A jury convicted petitioner John Arias of unlawful possession of contraband in a penal institution. 720 ILCS 5/31A--1.1 (West 1994). On November 9, 1994, the circuit court sentenced the petitioner to serve a 10-year term consecutively with the sentence he was currently serving. Subsequent to our affirmance of the petitioner's conviction on November 16, 1995 (People v. Arias, 3-94-0787 (1995) (unpublished order under Supreme Court Rule 23)), the supreme court allowed the petitioner to file a late petition for leave to appeal, which it then denied on December 4, 1996. The petitioner placed his pro se post-conviction petition in the prison mail on June 10, 1997. In his petition, the petitioner alleged that his trial counsel was ineffective when he failed to call a particular witness. However, the petitioner failed to allege facts showing that the delay in filing was not due to his culpable negligence. The circuit court dismissed his petition, concluding that his petition was patently without merit and failed to raise a sufficient constitutional question upon which to grant relief. The petitioner now appeals.
At the outset, we note that on appeal from a first-stage dismissal of a post-conviction petition, our review is plenary. People v. Coleman, 183 Ill. 2d 366, 388-89, 701 N.E.2d 1063, 1075 (1998). "The question raised in an appeal from an order dismissing a post-conviction petition is whether the allegations in the petition, liberally construed and taken as true, are sufficient to invoke relief under the [Post- Conviction Hearing] Act." People v. Coleman, 183 Ill. 2d at 388, 701 N.E.2d at 1075.
Section 122--1(c) of the Post-Conviction Hearing Act (Act) provides:
"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 more than 45 days after the defendant files his or her brief in the appeal of the sentence before the Illinois Supreme Court (or more than 45 days after the deadline for the filing of the defendant's brief with the Illinois Supreme Court if no brief 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).
In 1965, the Act provided that no proceeding could commence more than 20 years after a final judgment was rendered. *fn1 Ill. Rev. Stat. 1965, ch. 38, par. 122--1. The Act has been amended numerous times, reducing the deadline for filing a petition to 10 years, then to 3 years, and to where the Act presently includes shorter deadlines that in no case can exceed 3 years after a final judgment except where the delay was not due to the petitioner's culpable negligence. See Ill. Rev. Stat. 1985, ch. 38, par. 122--1; 725 ILCS 5/122**1 (West 1992).
In People v. Bates, 124 Ill. 2d 81, 87-88, 529 N.E.2d 227, 230 (1988), our supreme court explained the rationale behind the exception to the time limitations:
"The limitation provision in the Post-Conviction Hearing Act provides that no action may be brought more than 10 years after rendition of final judgment, 'unless the petitioner alleges facts showing that the delay was not due to his culpable negligence.' [Citation.] The limitations statutes involved in the other cases discussed [those argued by the petitioner] do not contain such a qualification. In our judgment, this language creates a special 'safety valve,' unique to the Post-Conviction Hearing Act, which acts as a substitute for the judicially imposed 'reasonable time' rule.
Under this view, the defendant's cause of action was not instantaneously barred by the enactment of the shortened limitation period. To avoid its effect, he need only have alleged facts justifying the delay in filing. Because his petition was not accompanied by any such allegations, we find that his petition must be dismissed as untimely. We note that this interpretation, while admittedly not benefitting this defendant, could conceivably provide a more expansive right to post- conviction relief than a 'reasonable time' rule might. Under this rule, lengthy delays which would likely be rejected as unreasonable, may be excusable if supported by adequate factual allegations."
The supreme court's decision in Bates requires that we follow its interpretation of the plain language of the statute. After all, "a court is not at liberty to depart from the plain language of a statute by reading into it exceptions, limitations or conditions that the legislature did not express." Kunkel v. Walton, 179 Ill. 2d 519, 534, 689 N.E.2d 1047, 1054 (1997).
Did the circuit court err when it considered the merits of the petitioner's untimely post-conviction petition which did not allege facts justifying his delay in filing? The petitioner argues that his cause should be remanded for further consideration because the circuit court (1) failed to recognize that the petition contained the gist of a meritorious claim, and (2) did not rule that the petition was late, thus denying him the opportunity to allege facts in a motion to reconsider showing that the delay was not due to his culpable negligence. In response, the State argues that the petition was properly dismissed because it was untimely.
The petitioner filed a motion to file a late petition for leave to appeal, which our supreme court denied on December 4, 1996. As June 4, 1997, was six months from this denial and the earliest occurring deadline under section 122--1(c), we conclude that it is the applicable deadline. Even if we count from June 10, 1997, the day the petitioner put his petition in the prison mail, as the filing date, he still filed the petition six days late. See People v. Johnson, 232 Ill. App. 3d 882, 884, 598 N.E.2d 276, 277 (1992)( a court will use the date a petitioner placed his petition in the prison mail as the date of filing for timeliness determinations). Accordingly, we conclude that the petitioner's filing of his post-conviction petition was untimely.
In order for the circuit court to consider the merits of an untimely petition, the petitioner must allege facts on the face of his initial petition that provide some colorable basis to conclude that the delay was not due to the petitioner's culpable negligence. People v. McClain, 292 Ill. App. 3d 185, 188-189, 684 N.E.2d 1062, 1064-65 (1997). Without the requisite factual allegations, the petition is patently without merit. 725 ILCS 5/122**1(c), 122--2.1(a)(2) (West 1996). Although the petitioner argues that because the circuit court did not rule on the timeliness of the petition, he was denied an opportunity to allege facts showing that the delay was not due to his culpable negligence in a motion to reconsider, we conclude this argument lacks merit. Because the language at issue in section 122--1(c) of the Act constitutes part of a comprehensive statutory scheme addressing post-conviction attacks on convictions, the petitioner's burden to allege facts showing that the delay was not due to his culpable negligence is the same burden the Act otherwise imposes on a petitioner who seeks an evidentiary hearing on his post-conviction claims. McClain, 292 Ill. App. 3d at 188, 684 N.E.2d at 1064. Therefore, only after the petitioner has made a "substantial showing" of facts that permits the court to conclude that the petition is not frivolous can the court determine whether the facts are sufficient to justify the delay in filing. McClain, 292 Ill. App. at 188, 684 N.E.2d at 1064. See Bates, 124 Ill. 2d 81, 529 N.E.2d 227. At bar, the petitioner alleged no facts justifying his delay in filing his petition. Thus, even if the circuit court had dismissed the petition on timeliness grounds, the petitioner would not be entitled to allege facts justifying his delay in a motion to reconsider. Accordingly, we conclude that the petitioner is not entitled to a remand to create new allegations justifying his delay, and for this reason, the circuit court's dismissal of the petitioner's petition for post-conviction relief was proper.
In sum, we conclude that the circuit court erred when it reviewed the merits of the petition, but the circuit court's dismissal of the petition was proper because the petition was untimely as a matter of law. Moreover, when the petition did not allege on its face some colorable basis to conclude that the delay in filing was not due to the petitioner's culpable negligence, the petition was patently without merit. Therefore, on these grounds, we affirm the circuit court's dismissal of the petitioner's post-conviction petition and, accordingly, affirm his conviction and sentence.
SLATER, J., concurs.
PRESIDING JUSTICE HOLDRIDGE, specially Concurring:
For the reasons articulated in People v. Caraballo, 304 Ill. App. 3d 288 (1999), I agree with the majority's finding that the defendant's petition was properly dismissed, being untimely as a matter of law.