Appeal from the Circuit Court of Madison County. No. 75-CF-46 Honorable Charles V. Romani, Jr., Judge, presiding.
The opinion of the court was delivered by: Justice Hopkins
Larry Whitford (defendant) appeals from the trial court's summary dismissal of his post-conviction petition pursuant to section 122-2.1(a)(2) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-2.1(a)(2) (West 1998)). Within the initial-review period, the trial court dismissed the petition as untimely without making any determination as to the merit of the petition. On appeal, defendant argues that the trial court improperly dismissed his petition as untimely and that he is entitled to an evidentiary hearing because he alleged the gist of a meritorious claim of a constitutional violation. The pivotal issue in this case is whether a post-conviction petition that states the gist of a meritorious claim should be summarily dismissed by the trial court during the initial-review stage, solely on the basis of the petition's untimeliness. We hold that it should not, and we reverse the trial court's summary dismissal.
On June 16, 1975, defendant pled guilty to one count of murder in exchange for the State's agreement to dismiss a second count of murder and to recommend a sentence of 40 to 90 years' imprisonment. On July 24, 1975, after a hearing on mitigation and aggravation, defendant was sentenced to 30 to 100 years' imprisonment. Defendant and his attorneys were admonished according to Supreme Court Rule 605(b) (145 Ill. 2d R. 605(b)).
On August 18, 1975, defendant's trial attorneys attempted to file a notice of appeal. On August 21, 1975, the Madison County Circuit Clerk mailed a letter to defendant at Menard Correctional Center. The letter from the clerk informed defendant that his notice of appeal was insufficient and that he would have to file a motion to withdraw his guilty plea, "pursuant to Supreme Court Rule 605, which went into effect July 1, 1975."
Also in the record is a letter, dated August 21, 1975, but not file-stamped, from defendant's attorneys to Honorable John Gitchoff, the judge who presided over defendant's guilty plea and sentencing hearings. The letter to Judge Gitchoff stated in pertinent part as follows:
"It is my position and the position of my co-counsel, Paul Riley, that we need not move to withdraw our client's plea of guilty entered in the above-referenced cause in order to appeal the sentence imposed by you upon out [sic] client. We construe Supreme Court Rule 604(d) as requiring a Motion in the trial court following a plea of guilty only where the Defendant wishes to withdraw his plea of guilty and to attack the plea's validity; we do not construe said rule as requiring a Motion be filed in the trial Court where a Defendant desires to appeal only the sentence imposed following the plea of guilty. We, therefore, ask that our previously filed Notice of Appeal from the sentence imposed by you be placed on file with the Court and that you direct the Clerk of the Court to take the same action upon the Notice of Appeal which he would have taken prior to the Supreme Court's enactment of their Rule 604(d)."
The next entry of record is the following docket sheet notation: "Counsel granted another 10 day extension to state facts for withdraw[al] of guilty plea." There is no explanation of this notation in the record; it is not clear if the parties appeared before the court or if the trial judge simply made the notation without any sort of hearing. There is no corresponding notice or indication that defendant or his attorneys were mailed a copy of this docket sheet entry or otherwise advised of its content. Defendant's attorneys did not file a motion to withdraw defendant's guilty plea and did nothing else to perfect defendant's appeal. Hence, defendant's case was never the subject of a direct appeal to this court.
Between September 22, 1975, and May 28, 1976, defendant filed three pro se petitions requesting copies of the reports of proceedings in his case. Each petition was file-stamped, but none were noted on the docket sheets of defendant's court file. The court did not take any action on the first two petitions, but it denied the third petition without stating a reason for the denial.
Defendant filed petitions for writs of mandamus on April 22, 1977, and December 16, 1977. Via each of these documents, defendant requested the trial court to order the Madison County Circuit Clerk to prepare and deliver to defendant copies of the transcripts and common law record of his case. In the first petition for writ of mandamus, defendant alleged that he needed the records to "perfect his redress before the higher reviewing courts, and to seek other statutory relief, because his constitutional rights [were substantially violated]." The trial court did not take any action on this petition.
In the second petition for writ of mandamus, defendant again stated that he needed the records because his constitutional rights were substantially violated. Defendant also alleged that his failure to file a timely notice of appeal and his failure to file a timely motion to withdraw his guilty plea were not due to his culpable negligence but were caused by the failures of his attorneys and the trial court. The trial court took no action on defendant's second petition for writ of mandamus.
On May 3, 1978, defendant filed his fourth petition seeking a report of proceedings. On the same date, the trial court finally ordered that defendant receive a copy of the transcripts in this case. On July 10, 1978, a letter from defendant was filed. The letter is addressed to the Madison County Circuit Clerk and states that over 60 days had passed since the court ordered that defendant receive his transcripts but that defendant had not yet received them. On July 16, 1978, the record of the proceedings was filed.
Between July 1978 and October 1997, a period of over 19 years, defendant took no action and filed nothing in the trial court.
On October 15, 1997, defendant filed a pro se post-conviction petition. The petition is 21 pages long and includes numerous attachments. In the petition, defendant alleges several constitutional violations. The State filed a motion to dismiss the post-conviction petition as untimely filed. The date on which the motion to dismiss was filed is not clear because the file stamp is too faint to read and the motion is not listed on any of the docket sheets in our record. On October 27, 1997, the trial court entered an order that summarily dismissed the post-conviction petition without an evidentiary hearing. The trial court did not make a finding as to the merit of the petition but found only that it was filed too late and that it did not show that the "extreme delay in filing was not due to [defendant's] culpable negligence."
Defendant filed a timely appeal from the dismissal order.
Defendant argues that the trial court improperly dismissed his post-conviction petition as untimely. The State counters that the trial court properly determined that defendant was culpably negligent and that the court properly dismissed the petition on that basis. After the parties filed their briefs with this court, but before oral argument, the Illinois Supreme Court filed an opinion, People v. Wright, 189 Ill. 2d 1 (1999), that speaks to this issue.
In Wright, the court determined that "the time limit found in section 122-1 is a statute of limitations" and that a defendant's failure to timely file a post-conviction petition does not deprive the trial court of jurisdiction to consider the petition. Wright, 189 Ill. 2d at 10; 725 ILCS 5/122-1 (West 1998). Since the time limit of section 122-1 of the Act is not jurisdictional, the court ...