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People v. Bates

June 06, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARCUS BATES, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 91 CR 16182 Honorable Edward M. Fiala, Jr., Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Hall

Not Released For Publication

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARCUS BATES, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Cook County. No. 91 CR 16182 Honorable Edward M. Fiala, Jr., Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Hall

The defendant, Marcus Bates, appeals from the dismissal of his petition for relief pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 1998)). The circuit court of Cook County found that there was no merit to the defendant's allegations. The defendant appeals. We reverse the order of the circuit court and remand for further proceedings.

 On July 19, 1991, the defendant, then 15 years old, was charged as an adult with two counts of first degree murder, felony murder, conspiracy to commit first degree murder, conspiracy to commit armed robbery and attempted armed robbery. On February 14, 1992, the State dismissed the conspiracy-to-commit-first-degree- murder charge. On February 19, 1992, the defendant pleaded guilty to the three murder counts and the attempted-armed-robbery count and was sentenced to terms of 50 years for murder and 15 years for attempted armed robbery. The sentences were to be served concurrently. On March 4, 1992, after pronouncing sentence, the trial court admonished the defendant as follows:

"I will advise you that you have a right of appeal. Before you may perfect that appeal, Mr. Bates, you or someone on your behalf must file within 30 days from today a paper, and that paper service is called a motion. In that motion, you must demonstrate why I should give you leave or permission to withdraw your plea of guilty. If I grant your motion, you may again be prosecuted for first degree murder, conspiracy to commit murder and attempt armed robbery once again ***."

The defendant did not file any postplea motions, nor did he file an appeal from his convictions and sentences. However, on September 29, 1998, he filed a post-conviction petition in which he alleged that the sentences imposed were excessive and that the trial court did not consider his rehabilitative potential. He also filed a motion for leave to file a late petition. As set forth in the petition and the motion, the defendant maintained that his late filing should be excused because there are no provisions for juveniles under the Act and because he was originally confined to a juvenile facility and lacked legal assistance and access to a law library. The trial court denied the petition solely on the basis that it lacked merit.

At the outset, the State contends that the defendant's petition was not filed in accordance with the limitation periods set forth in the Act, and since the defendant failed to demonstrate that his failure to timely file his petition was not due to his culpable negligence, the trial court properly could have dismissed the petition on that basis as well.

Since the defendant did not file an appeal in this case, he was required to file his post-conviction petition no later than three years from the date of his conviction, or March 4, 1995. See 725 ILCS 5/122-1(c) (West 1998). Since the defendant did not file his petition until over three years after March 4, 1995, the State concludes that his petition is untimely and that its dismissal should be affirmed.

The State may not raise the issue of timeliness of the petition for the first time on appeal. People v. Wright, 189 Ill. 2d 1, 11, 723 N.E.2d 230, 236 (1999). Our supreme court explained that allowing the State to raise the issue for the first time on appeal prevents a petitioner from having the opportunity to amend his petition to include facts showing that his failure to timely file his petition was not due to his culpable negligence. Wright, 189 Ill. 2d at 11, 723 N.E.2d at 236. Therefore, the issue of the untimeliness of the defendant's petition is not properly before us. Likewise, the issue of whether the State has waived the issue as to the untimeliness of the defendant's petition for purposes of further proceedings is not properly before us.

We turn now to the merits of the defendant's petition.

The Illinois Post-Conviction Hearing Act provides a mechanism by which those under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both. People v. Coleman, 183 Ill. 2d 366, 378-79, 701 N.E.2d 1063,1070-71 (1998); see 725 ILCS 5/122-1 (West 1998). The general requirement that a post-conviction petitioner set forth the gist of a meritorious claim means that he must allege sufficient facts from which the circuit court could find a valid claim of deprivation of a constitutional right. People ...


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