Appeal from the Circuit Court of Lake County. No. 90--CF--2176 Honorable John R. Goshgarian and George Bridges, Judges, Presiding.
The opinion of the court was delivered by: Justice O'malley
Defendant, Oscar Parham, presently serving a term of natural life in prison for murder, appeals the trial court's summary dismissal of his petition brought under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 1998)). Defendant's direct appeal was unsuccessful, and his first post-conviction petition was dismissed without a hearing. We affirm.
Following a jury trial, defendant was convicted of two counts of first-degree murder and sentenced to life imprisonment. In the trial court, defendant, by counsel, filed the post-conviction petition at issue here. Before the State's right to respond to the petition under the Act was triggered, the trial court filed a written order and opinion dismissing the petition without a hearing because it was "frivolous and patently without merit because not timely filed." The court noted that defendant was convicted eight years before he filed the petition and he did not attempt to demonstrate that the delay in filing was not due to his "culpable negligence." Accordingly, the court found that the petition was untimely under section 122--1(c) of the Act (725 ILCS 5/122--1(c) (West 1998)).
In this timely appeal, defendant argues that the trial court's dismissal of his petition as untimely was erroneous because "limitations is an affirmative defense, not at issue until raised by the [S]tate in a responsive pleading," and that the State waived its timeliness objection by not responding to his petition in the trial court. Defendant's other claims will be dealt with in an unpublished portion of this decision pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23). For the reasons provided below, we affirm the trial court's summary dismissal of defendant's post-conviction petition.
Section 122--1(c) of the 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 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 1998).
The petitioner has the burden of establishing that a delay in filing a post-conviction petition was not due to his culpable negligence. See People v. Van Hee, 305 Ill. App. 3d 333, 336 (1999).
Section 122--2.1(a) of the Act requires the trial court to review a petition and file an order within 90 days after the petition is filed and docketed ("initial review"). 725 ILCS 5/122--2.1(a) (West 1998). Section 122--2.1(a)(2) provides that, if the petitioner is under a sentence of imprisonment and the court finds that the petition is frivolous or patently without merit, then the court may enter a written order stating so, supported by findings of fact and conclusions of law. 725 ILCS 5/122--2.1 (a)(2) (West 1998). If the court does not dismiss the petition, then it shall order that the petition be docketed for further consideration. 725 ILCS 5/122--2.1(b) (West 1998). The State must respond within 30 days or such further time as the court may set. 725 ILCS 5/122--5 (West 1998). The State is not permitted to respond to the petition during its initial review by the trial court; at this stage "the circuit court considers the petition independently, without any input from either side." People v. Gaultney, 174 Ill. 2d 410, 418 (1996). Appellate review of a trial court's summary dismissal of a post-conviction petition is de novo. See People v. Coleman, 183 Ill. 2d 366, 388 (1998).
The trial court dismissed defendant's petition during its initial review, before the State had the opportunity to respond. The trial court based its dismissal partly on its finding that the petition was untimely under section 122-1(c) of the Act. Although it had no occasion to raise a timeliness objection to the petition in the trial court, the State asks us to affirm the trial court's sua sponte finding of untimeliness. Defendant concedes that his petition is untimely, but he contends that the timeliness of his petition is not properly before this court. Defendant argues that the trial court had no authority to dismiss his petition as untimely in the absence of the State's motion to dismiss on that ground and that the State has waived its timeliness objection by not raising it in the trial court. Defendant cites People v. Wright, 189 Ill. 2d 1 (1999), for the proposition that the time restriction in section 122-1(c) constitutes not a jurisdictional bar but a statute of limitations that the State must affirmatively plead or waive.
The State cites Wright for the opposite conclusion that a trial court has the authority to dismiss a petition as untimely during its initial review despite the fact that the State can never raise a timeliness objection during that initial review. We agree with the State's reading of Wright.
Unlike the petition under review here, the petition in Wright survived the initial review stage, giving the State the opportunity it did not have in this case to respond to the petition. Wright, 189 Ill. 2d at 5. The State successfully sought to dismiss the petition, but not on timeliness grounds. Wright, 189 Ill. 2d at 5, 11. On appeal, the defendant did not contend that the petition was timely but instead asserted that the State had waived its timeliness objection by not bringing it before the trial court. Wright, 189 Ill. 2d at 10-11. The court agreed, holding that the time limit found in section 122--1(c) is a statute of limitations rather than a ...