Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Townsend

August 21, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JAMES TOWNSEND, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 92-CF-228 Honorable Raymond J. McKoski, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley

Released for publication August 29, 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JAMES TOWNSEND, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Lake County. No. 92-CF-228 Honorable Raymond J. McKoski, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley

PUBLISH

Defendant, James Townsend, appeals the summary dismissal of his post-conviction petition. The trial court denied defendant's petition at the initial stage of the post-conviction proceedings because, among other things, the petition was not filed timely. Defendant argues on appeal that this court should remand the cause so that defendant can allege facts in his petition that establish that his delay in filing the petition was not due to his own culpable negligence. Defendant additionally argues that the trial court erred when it summarily dismissed his post-conviction petition because defendant raised a valid constitutional issue in his petition. Specifically, defendant claimed that his consecutive sentences were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm.

Following a jury trial, which was conducted in February 1993, defendant was convicted of first degree murder (720 ILCS 5/9--1(a)(2) (West 1992)) and attempted first degree murder (720 ILCS 5/8--4(a), 9--1(a)(2) (West 1992)). On April 2, 1993, he was sentenced to consecutive sentences of 55 years' imprisonment for first degree murder and 30 years' imprisonment for attempted first degree murder. Defendant appealed, and this court affirmed defendant's convictions and sentences. See People v. Townsend, No. 2--93--0563 (1995) (unpublished order under Supreme Court Rule 23).

On July 20, 1995, our supreme court denied defendant's petition for leave to appeal. On December 26, 2000, defendant filed a pro se post-conviction petition, arguing, among other things, that his consecutive sentences were unconstitutional under Apprendi. Defendant never argued in his petition or at any time before or after the petition was filed that the delay in filing his post-conviction petition was not due to his own culpable negligence. The trial court denied the petition, finding, among other things, that the petition was not filed timely. This appeal followed.

There are three stages to a post-conviction proceeding, and this appeal concerns the first such stage, i.e., the trial court's initial review. People v. Parham, 318 Ill. App. 3d 818, 821 (2001). During the initial review, the trial court may dismiss the post-conviction petition of a defendant who has been sentenced to a term of imprisonment if the court finds that the petition is frivolous and patently without merit. 725 ILCS 5/122--2.1(a)(2) (West 2000). The court must evaluate the merits of the petition at the initial review without any input from either the State or the defendant. Parham, 318 Ill. App. 3d at 821. We review de novo the trial court's summary dismissal of a defendant's post-conviction petition. Parham, 318 Ill. App. 3d at 821.

Section 122--1(c) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1(c) (2000)) sets forth the time limitations within which a defendant must file a post-conviction petition. This section of the Act specifically provides 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 [defendant] alleges facts showing that the delay was not due to his or her culpable negligence." 725 ILCS 5/122--1(c) (West 2000).

Here, defendant filed his petition almost 8 years after he was convicted and 5½ years after his petition for leave to appeal was denied, and defendant never advanced any reason why the delay in filing the petition should not be attributed to his own culpable negligence. Although defendant agrees that his petition was untimely, he claims that the trial court should not have dismissed sua sponte his post-conviction petition as untimely at the summary dismissal stage of the proceedings. Rather, defendant claims that the trial court should have allowed defendant to amend his post-conviction petition so that he could allege facts establishing that the delay in filing the petition was not due to his own culpable negligence.

In his brief, defendant argues that this court should follow People v. Stewart, No. 1--99--3621 (September 25, 2001) (Stewart I), which, according to defendant, relied on People v. Wright, 189 Ill. 2d 1 (1999). On December 11, 2001, the appellate court in Stewart I allowed a petition for rehearing and vacated Stewart I. On December 18, 2001, the appellate court filed People v. Stewart, 326 Ill. App. 3d 933 (2001) (Stewart II). Given this sequence of events, we refuse to follow Stewart I. Nevertheless, in addition to examining Stewart II, we will also review Wright, which, according to defendant's brief, unequivocally provides that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.