Appeal from the Circuit Court for the 12th Judicial Circuit Will County, Illinois No. 93--CF--2274 Honorable Stephen White Judge Presiding
The opinion of the court was delivered by: Justice Koehler
Modified Upon Denial of Rehearing
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). On appeal, the petitioner contends that the circuit court erred in dismissing his petition. In response, the State argues that the petition was properly dismissed because it was untimely and it failed to present the gist of a meritorious claim. For the following reasons, we conclude that: (1) the timeliness argument has been waived; and (2) the circuit court properly dismissed the petition as patently without merit. Accordingly, we affirm.
A jury convicted the petitioner of unlawful possession of contraband in a penal institution. 720 ILCS 5/31A--1.1 (West 1994). His conviction stemmed from a search of his prison cell which uncovered seven homemade knives found under the steel plate of a stool. At trial, the petitioner argued that he did not know the knives were in the stool and that he had only been transferred to that cell three months before the knives were found. A State witness testified that the reason for a majority of the petitioner's cell transfers was routine. However, the witness did not know whether the defendant had requested a transfer to that particular cell.
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Subsequent to our affirmance of the petitioner's conviction on November 16, 1995 (People v. Arias, 3--94--0787 (1995) (unpublished order under Supreme Court Rule 23)), the supreme court allowed the petitioner to file a late petition for leave to appeal, which it then denied on December 4,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.
Initially, the State argues that we do not have jurisdiction over this cause because the petition was untimely filed. The petitioner concedes that his petition was filed six days past the time mandated in the statute. However, he argues that since the circuit court did not rule that the petition was late, he was denied the opportunity to allege facts showing that the lateness was not due to his culpable negligence. Therefore, he requests that this court remand his case to the circuit court for appointment of counsel so that he can amend his petition and allege lack of culpable negligence.
Our supreme court recently held that because time is not an inherent element of the right to bring a post-conviction petition, compliance with the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1994)) is not a jurisdictional prerequisite. People v. Wright, No. 84721, slip op. at 5 (November 18, 1999). Therefore, the court reasoned, the time limitations in the Act should be considered an affirmative defense that, if not raised at the trial level, is waived. Wright, slip op. at 7.
In this case, the circuit court dismissed the petition at the first stage of proceedings without the circuit court ruling on its timeliness. Under Wright, then, the timeliness issue has been waived. Accordingly, we will review the merits of the case.
B. Merits of the petition
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." Coleman, 183 Ill. 2d at 388, 701 N.E.2d at 1075.
The petitioner argues that his petition presented the gist of a meritorious claim of ineffective assistance of trial counsel in that counsel was ineffective for failing to call correctional officer Cleeves as a witness. According to the petitioner, Cleeves was a cell house sergeant who would have testified that the petitioner was moved to the cell in ...