The opinion of the court was delivered by: Justice Gordon
Not Released For Publication
THE PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT-APPELLEE,
SHERMAN SCULLARK, PETITIONER-APPELLANT.
The opinion of the court was delivered by: Justice Gordon
Appeal from the Circuit Court of Cook County. Honorable Stanley Sacks, Judge Presiding.
This appeal is from a summary dismissal of petitioner's pro se post-conviction petition pursuant to section 122-2.1(a)(2) of the Post- Conviction Hearing Act (725 ILCS 5/122-2.1(a)(2) on the grounds that it was time barred and therefore did not require that the merits be addressed.
Substantively the petition alleges, inter alia, that at the trial the State knowingly elicited perjured testimony from a material witness and that several of petitioner's co-defendants who pled guilty have now stated that petitioner was not involved in the crime. On appeal, petitioner argues that his failure to file the petition in a timely manner was not due to his culpable negligence and that his failure to include allegations that he was not culpably negligent in his petition should not result in its dismissal. Additionally, in supplemental briefs petitioner contends that he is entitled to a new sentencing hearing based on the supreme court's holding in Apprendi v. New Jersey, ___ U.S. ___, 120 S.Ct. 2348 (2000).
In the underlying trial it was adduced that petitioner was a high ranking functionary of a street gang known as the "Conservative Vice Lords." He actively participated in the punishment, which in the vernacular of the street, is referred to as a "violation," of a fellow gang member. The "violation" involved the restraining, beating, transporting and ultimately killing of the victim. On June 7, 1995, plaintiff was convicted of murder and aggravated kidnaping for which he was sentenced to natural life imprisonment on August 29, 1995. The full factors of the underlying trial are summarized in the non-published order pursuant to Supreme Court Rule 23 entered by this court on May 21, 1997, affirming the conviction and need not be restated here. See People v. Mathews and Scullark, Nos. 95-3207 & 95-4010 (cons.) (1997) (unpublished order under Supreme Court Rule 23), appeal denied, 178 Ill. 2d 589, 699 N.E.2d 1035 (1998).
On January 16, 1999, petitioner filed a motion to extend the time for filing his post-conviction petition. In that motion he averred that between May 26, 1998, and November 25, 1998, he was placed in segregation and was deprived of his legal materials, including his then in-progress post-conviction petition. The motion also averred that petitioner then had no access to the prison library because of a prison lock-down. On February 10, 1999, the trial court denied petitioner's motion to extend the petition's filing date. On February 11 petitioner was given access to his legal materials and he proceeded to file his post-conviction petition on February 18. The petition did not on its face contain any facts sufficient to explain its late filing. On March 15, 1999, the trial court summarily dismissed the petition on the grounds that it was time-barred.
Petitioner never attempted to amend his post-conviction petition. However, on April 23, 1999, petitioner filed a motion to reconsider in which he alleged that prison officials had misplaced his legal papers and materials when they confiscated them and were unable to locate them until January 27, 1999, and that petitioner first received access to those materials on February 11, 1999. The motion to reconsider also alleged that on November 30, 1999, petitioner filed a grievance in an attempt to locate his legal papers which were misplaced. On May 5, 1999, petitioner's motion to reconsider was denied. This appeal followed.
The Post-Conviction Hearing Act (725 ILCS 5/122.1 et seq.), provides for a three step process in which petitions for post- conviction relief are adjudicated. "The first step requires the trial court to consider the petition to determine whether it is frivolous or patently without merit. If it is, the petition is dismissed." People v. Hernandez, 283 Ill. App. 3d 312, 316, 669 N.E.2d 1326, 1329 (1996); 725 ILCS 5/122-2.1(a)(2). At this first stage of the process, the court evaluates the petition without further input from the petitioner or any participation by the State. People v. Oury, 259 Ill. App. 3d 663, 667- 68, 631 N.E.2d 822, 825 (1994). To survive stage one, the petition must only provide the gist of a constitutional claim. People v. DeSavieu, 256 Ill. App. 3d 731, 733, 628 N.E.2d 1117, 1119 (1993). The court may also dismiss the petition as untimely at the first stage. People v. Wright, 189 Ill. 2d 1, 11, 723 N.E.2d 230, 237 (1999). The dismissal of a petition pursuant to section 122-2.1(a)(2) is reviewed de novo. People v. Coleman, 183 Ill. 2d 366, 388, 701 N.E.2d 1063, 1075 (1998).
"If the court determines at [the] first stage that the petition is not frivolous or patently without merit, then at the second stage the court may appoint counsel to represent an indigent defendant and counsel will have the opportunity to amend the post-conviction petition. The State may then move to dismiss the petition. The third and final stage is an evidentiary hearing if the court has not dismissed the petition on the State's motion." People v. Hernandez, 283 Ill. App. 3d 312, 316, 669 N.E.2d 1326, 1329 (1996).
The due date for the filing of a post-conviction petition varies depending on several factors. Where a petition for leave to appeal to the Illinois Supreme Court is filed, the petitioner's post-conviction petition is due either three years after his conviction or six months after his petition for leave to appeal is denied, whichever is sooner. 725 ILCS 5/122-1(c). However, the Post-Conviction Hearing Act provides a "safety valve" provision for petitioners who do not file in a timely manner. Under this "safety valve" provision, the petitioner may be excused from failing to file in a timely manner if he establishes that he was not culpably negligent in his failure to file on time. 725 ILCS 5/122-1(c).
Petitioner first argues that his failure to include allegations in his petition that he was not culpably negligent should not result in summary dismissal under section 122-2.1(a)(2). We agree.
We first note that the plain language of the Post-Conviction Hearing Act does not require that the allegations of a lack of culpable negligence be in the petition. Rather, the statute states that the deadlines given will apply "unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence." 725 ILCS 5/122-1(c). While some courts have construed this to be a requirement that the allegations of lack of culpable negligence appear in the petition itself, (People v. Caraballo, 304 Ill. App. 3d 288, 290-91, 710 N.E.2d 560, 563 (1999), vacated by, 187 Ill. 2d 574, 722 N.E.2d 1142 (2000)) others appear to offer a more flexible construction (People v. Bates, 124 Ill. 2d 81, 88, 529 N.E.2d 227, 230 (1988) (dismissal of petition as untimely upheld where the petition "was not accompanied by *** such allegations" (Emphasis added.)); Caraballo, 304 Ill. App. 3d at 293, 710 N.E.2d at 564 (Homer, J., dissenting) (stating ...