Appeal from the Circuit Court of Cook County. No. 95 CR 16791 Honorable Themis Karnezis Judge Presiding
The opinion of the court was delivered by: Justice Gordon
Defendant Chevae Langston was found guilty of first-degree murder (720 ILCS 5/9-1(a)(2) (West 1994)) on January 26, 1996. On April 2, 1996, he was sentenced to 42 years in prison. At that time the trial judge informed him that he was not entitled to credit for good conduct and that he would have to serve 100 percent of his sentence pursuant to the truth-in-sentencing law. 730 ILCS 5/3-6-3(a)(2)(i) (West 1996)(defendant convicted of first-degree murder receives no good conduct credit and must serve entire sentence imposed). Defendant subsequently appealed his conviction and sentence arguing, inter alia, that the truth-in-sentencing law was unconstitutional. His conviction and sentence were affirmed by the appellate court on April 10, 1998.
On May 14, 1998, defendant filed a petition for leave to appeal with our Supreme Court. Defendant's petition was denied on March 31, 1999. However, on that date our Supreme Court also entered a supervisory order instructing the appellate court to vacate and reconsider its decision of April 10, 1998, in the light of People v. Reedy, 186 Ill. 2d 1, 708 N.E.2d 1114 (1999). In Reedy, our Supreme Court held Public Act 89-404, including its truth-in-sentencing provisions, unconstitutional because it violated the single subject rule. On May 16, 1999, pursuant to our Supreme Court's supervisory order, the appellate court vacated its earlier affirmation of defendant's direct appeal and remanded the case to the trial court to correct the sentence so as to account for good conduct. On November 5, 1999, the trial court corrected its mittimus to account for good conduct credit in accordance with the remand.
On September 27, 1999, defendant filed a post-conviction petition. On the merits, the petition alleged that defendant was denied effective assistance of counsel for the following reasons: (1) his trial attorney failed to rebut the State's theory that defendant's conduct was motivated by gang membership; (2) his trial attorney failed to present mitigating evidence at his sentencing hearing on April 2, 1996; (3) his trial counsel failed to file a motion for reconsideration of his sentence; and (4) his trial counsel did not accept a ten-year plea agreement offered by the State. The petition also alleged that defendant was denied the right to choose his counsel because his trial counsel did not disclose that he had previously represented defendant's father.
The defendant's post-conviction petition acknowledged that it was not timely filed but asserted that the delay was not due to culpable negligence. The petition avers that it was filed late because defendant's counsel was awaiting the outcome of a pending petition for leave to appeal before our Supreme Court in the instant case and was also awaiting the Supreme Court's decision in the Reedy case, which was also then pending. The petition further states that "[c]counsel was focusing on Petitioner's pending PLA and the then pending Reedy case. A positive result in Reedy could have yielded the possibility of resentencing thereby eliminating the need to file this action. If the PLA had been granted, counsel would have file[d] her appearance with the Illinois Supreme Court. Frankly, counsel was trying to save Langston's family additional expenses for unnecessary litigation." The petition then states that "counsel also focused on the pre-1995 law which allowed either the time from the denial of the PLA or 3 years from the time of sentencing 'whichever is later'" in which to file a post-conviction petition. (Emphasis in original.)
On November 5, 1999, the trial court corrected the mittimus to account for good conduct credit. Defendant's post-conviction petition was dismissed on February 18, 2000. In dismissing the petition the court stated that it "was not untimely due to petitioner's culpable negligence". The petition however, was "dismissed on the merits." Defendant's motion to reconsider that dismissal was denied on March 31, 2000. This appeal followed.
On appeal, the State revisits the issue of timeliness and alleges that he petition warranted dismissal because it was untimely, and that we may sustain the trial court on any ground supported by the record. Defendant, however, urges as he did below, that the was not culpably negligent in filing his post-conviction petition late because of his reliance on his counsel's decision to await the decision in Reedy. The State, however, responds that defendant's petition was properly dismissed because his assertions in his petition that he was not culpably negligent are insufficient as a matter of law under our Supreme Court's recent decision in People v. Rissley, No. 82536 (March 15, 2001), in which the court rejected reliance on advice of counsel as a sufficient excuse to negate culpable negligence for delay in filing. We agree with the State. *fn1
Section 5/122-1(c) of the Post-Conviction Hearing Act provides in relevant part as follows:
"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 a 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).
In this case, defendant's petition was denied on March 31, 1999; thus, the six-month statutory period following that date expired on September 30, 1999. Defendant's conviction was final on April 2, 1996; thus, the three-year period following that date expired on April 2, 1999. Defendant's post-conviction petition was therefore due on April 2, 1999, the earlier of those two dates pursuant to section 122-1(c). Since defendant's post-conviction petition was filed on Sept. 27, 1999, it was therefore too late.
Defendant urges that his petition was not due until three years after November 5, 2001, the date on which the trial court corrected defendant's sentence after the remand from the appellate court. This is the date, defendant argues, on which his first valid sentence was imposed and thus it must be considered the date of conviction for purposes of section 122-1(c).
We agree that the limitations period is triggered by the date of sentencing. See People v. Woods, 193 Ill. 2d 483, 739 N.E.2d 493 (2000). However, while defendant is correct in asserting that the date of sentence is the trigger for the period of limitations, we are persuaded that the triggering event is the initial sentence, even though it was invalid. Nothing in our Supreme Court's holding in Woods indicates that to trigger a final judgment and the running of the filing period, the sentence must be the correct one. Rather, Woods states that in determining the time for filing a post-conviction petition the "'date of conviction' means that date that final judgment including sentence was entered." (Emphasis added.) Woods, 193 Ill. 2d at 489, 739 N.E.2d at 496. Obviously, the imposition of a sentence, even though later held on appeal to be erroneous, would suffice to lend requisite finality for purposes of filing a post-conviction petition as well as an appeal. In fact, the filing of a post-conviction petition or appeal would be the vehicle through which erroneous sentences would be discovered and overturned. Thus, the fact that a sentence imposed by the trial court is later overturned would not defer the date for the filing of a post-conviction petition to after the initial sentence is entered.
This is consistent with the fact that, under the limitations period imposed by section 122-1(c), a defendant may be required to file his post-conviction petition prior to the completion of his direct appeal. People v. Rissley, No. 82536, slip op. at 4 (March 15, 2001) ("post-conviction petitions must sometimes be filed before the termination of proceedings on direct appeal"); see also M. Levy, Practice Under the Illinois Post-Conviction Hearing Act, 11 DCBA Brief 42 (1999) (prior to revision of section 122-1(c), post-conviction petitions were not generally filed until direct appeal was concluded, however, "under the current limitations scheme, the defendant may need to file a post-conviction petition while his or her direct appeal is still pending"). For example, section 122-1(c) provides that when a defendant files a brief with our Supreme Court the deadline for filing his post-conviction petition is 45 days after the brief is filed. 725 ILCS 5/122-1(c)(West 1998). Clearly this would rarely leave sufficient time for our Supreme Court to render its decision in the direct appeal before the expiration of the filing period for the post-conviction petition. Cf. Rissley, No. 82536, slip op. at 4. Accordingly, the statute on its face contemplates that the time for filing the post-conviction petition may very well expire before a court of review has opportunity to review the propriety of a defendant's sentence, ...