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People v. Boclair

August 29, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
STANLEY BOCLAIR, APPELLANT.
THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
JOE MCCAIN, APPELLEE.
THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
EARNEST JOHNSON, APPELLEE.



The opinion of the court was delivered by: Justice Kilbride

UNPUBLISHED

Docket Nos. 89388, 89471, 89534 cons.-Agenda 7-May 2001.

The defendants in these three consolidated cases, Stanley Boclair, Joe McCain, and Earnest Johnson, were separately convicted of various unrelated crimes and are currently incarcerated. Their convictions were affirmed on direct review. Subsequently, each defendant filed a petition for post-conviction relief. The circuit court summarily dismissed each post-conviction petition. All three defendants appealed.

In Boclair, 312 Ill. App. 3d 346, the Fourth District affirmed the dismissal. In McCain, 312 Ill. App. 3d 529, the Fifth District reversed and held that the circuit court should not dismiss a petition as untimely or on waiver or res judicata grounds at the first stage of a post-conviction proceeding. Similarly, in Johnson, 312 Ill. App. 3d 532, the Fifth District reversed and held that the circuit court should not dismiss a petition as untimely without first providing the State with an opportunity to waive the procedural defect.

We granted leave to appeal primarily to determine whether the circuit court can summarily dismiss a defendant's post-conviction petition at the first stage of post-conviction proceedings as untimely. Additionally, we consider whether section 122-1(c) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(c) (West 1998)) is unconstitutionally vague and whether Public Act 83-942, eff. November 23, 1983, violates the single subject clause of the Illinois Constitution (Ill. Const. 1970, art. IV, §8(d)). We answer all three questions in the negative. We reverse the appellate court's judgment in Boclair and affirm the appellate court's judgment in McCain and Johnson.

I. BACKGROUND

Boclair was convicted of murder and conspiracy to commit murder and was sentenced to death. On direct appeal, we vacated Boclair's death sentence but affirmed his convictions. People v. Boclair, 129 Ill. 2d 458 (1989). In November 1991, defendant was resentenced to natural life in prison. In October 1992, the circuit court summarily dismissed defendant's pro se post-conviction petition and the appellate court affirmed. People v. Boclair, 246 Ill. App. 3d 1119 (1993) (unpublished order under Supreme Court Rule 23). We subsequently denied Boclair's petition for leave to appeal. People v. Boclair, 152 Ill. 2d 562 (1993). In August 1998, defendant submitted a supplemental petition for post-conviction and post-judgment relief alleging that investigators obtained "newly discovered evidence" while pursuing a federal habeas corpus challenge. In November 1998, the circuit court summarily dismissed defendant's supplemental petition as "patently without merit." The circuit court did not address the timeliness requirement. The appellate court affirmed, finding that Boclair's petition was untimely and that Boclair failed even to purport that he was not culpably negligent. Boclair, 312 Ill. App. 3d 346.

McCain was convicted of two counts of attempted murder and three counts of aggravated assault in February 1989. After sentencing, McCain appealed and the appellate court affirmed. People v. McCain, 207 Ill. App. 3d 1123 (1991) (unpublished order under Supreme Court Rule 23). We denied defendant's petition for leave to appeal. People v. McCain, 139 Ill. 2d 601 (1991). In August 1997, defendant filed a petition seeking post-conviction relief under the Act. The circuit court dismissed defendant's petition in October 1997, finding that defendant's petition was not timely filed, that the defendant was culpably negligent in not filing it on time, and that defendant failed to allege a constitutional violation that was not addressed on direct appeal or otherwise waived. The appellate court reversed and held that the circuit court should not dismiss a petition as untimely or on waiver or res judicata grounds at the first stage of a post-conviction proceeding. McCain, 312 Ill. App. 3d 529.

Johnson was convicted of murder and robbery. He appealed and the appellate court reversed. People v. Johnson, 138 Ill. App. 3d 980 (1985). On remand, defendant was again convicted. He appealed and the appellate court affirmed his conviction but remanded for resentencing. People v. Johnson, 173 Ill. App. 3d 998 (1988). In March 1998, Johnson filed a petition for post-conviction relief. Johnson contended that his failure to seek timely post-conviction relief was not due to his own culpable negligence. Johnson based his petition in large part on the recent discovery of new evidence negating his conviction. The circuit court summarily dismissed the petition, finding that it was clearly filed beyond the statutory time limitation and was therefore meritless. The circuit court further found that Johnson failed to show that his delay in filing was not due to his own culpable negligence. The appellate court reversed and held that the circuit court may not dismiss a petition as untimely without first providing the State with an opportunity to waive the procedural defect. Johnson, 312 Ill. App. 3d 532.

Boclair filed a petition for leave to appeal the Fourth District's decision. Similarly, the State sought leave to appeal from the Fifth District's decisions. We granted the parties' respective petitions for leave to appeal and consolidated their cases.

II. ANALYSIS

On appeal to this court, defendants collectively argue that (1) the circuit courts erred in summarily dismissing their post-conviction petitions as untimely; (2) section 122-1(c) of the Act is unconstitutionally vague; and (3) Public Act 83-942, eff. November 23, 1983, amending the Post-Conviction Hearing Act, violates the single subject clause of the Illinois Constitution (Ill. Const. 1970, art. IV, §8(d)). We address each issue in turn.

A. Timeliness of Defendants' Petitions

McCain and Johnson first contend that the circuit courts erred by summarily denying their post-conviction petitions as untimely during stage one of the post-conviction proceeding process. Boclair similarly argues that the appellate court, in affirming summary dismissal, improperly deemed his petition untimely. We consider this issue de novo. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998). For the reasons that follow, we agree with defendants.

Our decision in People v. Wright, 189 Ill. 2d 1 (1999), is generally instructive on this issue. There, we considered whether, in an appeal from the dismissal of a post-conviction petition, the State may challenge the petition as untimely. Wright, 189 Ill. 2d at 10-11. We held that the time requirement in section 122-1 is a statute of limitation and not a jurisdictional prerequisite to a post-conviction proceeding. Section 122-1(c) states, in relevant part,

"(c) 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 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 Wright, defendant's petition survived the first stage of the post-conviction proceedings. At the second stage, the circuit court granted the State's motion to dismiss. On appeal, the defendant contended that the circuit court erred in granting the State's motion. The State responded, in part, by claiming, for the first time, that defendant's petition was untimely and that the circuit court lacked jurisdiction over the matter.

We rejected the State's argument that section 122-1's timing requirements are jurisdictional. Instead, section 122-1's timing requirements are akin to a statute of limitation and can be waived or forfeited through procedural default. Wright, 189 Ill. 2d at 10-11. We stated:

"[T]he time limitation found in section 122-1 reveals that it has more in common with statutes of limitations than it does with statutes conferring jurisdiction. The plain language of section 122-1 demonstrates that time is not an integral part of the remedy. *** In fact, if a petitioner can demonstrate that the late filing was not due to his culpable negligence, there is no time limit within which a petitioner must file his post-conviction petition. [Citations.] A safety valve that allows an unlimited time in which to file a post-conviction petition cannot be reconciled with a concept that makes time a condition of the liability or with a position that time is an inherent element of the right created. As a lack of culpable negligence permits the filing of a post-conviction petition regardless of the length of time that has passed, a lack of culpable negligence-not time-is the inherent element." Wright, 189 Ill. 2d at 8.

Consequently, because the State did not raise the statute of limitation issue in its second-stage motion to dismiss, the argument was forfeited on appeal. Wright, 189 Ill. 2d at 11.

We further noted that to allow the State to raise a timeliness objection on appeal would permit the State in all cases to raise an "affirmative defense that the defendant may [have been] able to avoid by amending his petition." Wright, 189 Ill. 2d at 11. We further cautioned that we were "not limiting the [circuit] court's ability, during the court's initial review of non-capital petitions [citation], to dismiss the petition as untimely." We also briefly referred to the court's "duty" to do so under section 122-2.1(a)(2). Wright, 189 Ill. 2d at 11-12.

Some appellate court panels have interpreted this language in Wright as setting forth a "clear directive" that a circuit court may summarily dismiss petitions as untimely in the initial phase of a post-conviction petition (People v. Lopez, 317 Ill. App. 3d 1047, 1051 (2000); People v. Carroll, 317 Ill. App. 3d 408 (2000)), as was held by the appellate court in Boclair, 312 Ill. App. 3d 346. Other panels have classified this language as dicta and have held that the circuit court exceeds its authority when it dismisses a post-conviction petition as untimely in the initial stage without a determination that the petitions were frivolous or patently without merit (People v. Whitford, 314 Ill. App. 3d 335 (2000); People v. Hill, 313 Ill. App. 3d 362, 363-64 (2000)), which is what the panels held in both Johnson, 312 Ill. App. 3d 532, and McCain, 312 Ill. App. 3d 529. We hold that the Act does not authorize the dismissal of a post-conviction petition during the initial stage based on untimeliness.

To the extent that our opinion in Wright may be read as holding the contrary to be true, we now expressly overturn that portion of the Wright decision.

The Act provides a three-stage process for the adjudication of post-conviction petitions. In the first stage, the circuit court determines whether the post-conviction petition is "frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2000). The State does not have an opportunity to raise any arguments against the petition during this summary review stage. People v. Gaultney, 174 Ill. 2d 410 (1996). The circuit court is required to make an independent assessment in the summary review stage as to whether the allegations in the petition, liberally construed and taken as true, set forth a constitutional claim for relief. The court is further foreclosed from engaging in any fact finding or any review of matters beyond the allegations of the petition. People v. Coleman, 183 Ill. 2d 366 (1998).

To survive dismissal at this stage, the petition must only present "the gist of a constitutional claim." Gaultney, 174 Ill. 2d at 418. If the petition is found to be "frivolous" or "patently without merit," the court "shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision." 725 ILCS 5/122-2.1(a)(2) (West 2000). If the petition survives the initial stage, the court may appoint counsel to represent an indigent defendant, and counsel will have an opportunity to amend the petition. 725 ILCS 5/122-1 et seq. (West 2000); People v. Watson, 187 Ill. 2d 448 (1999). The State then may file a motion to dismiss the petition. 725 ILCS 5/122-5 (West 2000); Gaultney, 174 Ill. 2d at 418. If the State does not file a motion to dismiss or if the circuit court denies the State's motion, the circuit court will proceed to the third stage and conduct an evidentiary hearing on the merits of the petition. 725 ILCS 5/122-6 (West 2000).

Section 122-2.1(a)(2) requires the circuit court to determine within 90 days of the filing of a post-conviction petition whether the petition is "frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2000). Importantly, we note that this section is silent regarding timeliness. Rather, timeliness is addressed elsewhere, in section 122-1(c), instructing defendants as to the time periods for filing petitions. If this court can ascertain legislative intent from the plain language of the statute itself, that intent must prevail. Barnett v. Zion Park District, 171 Ill. 2d 378 (1996). We will not depart from the plain language of the statute by reading into it exceptions, limitations, or conditions that conflict with the express legislative intent. Barnett, 171 Ill. 2d at 389.

Under a plain reading of section 122-2.1(a)(2), the circuit court may dismiss a post-conviction petition at the initial stage only if the petition is deemed to be "frivolous or *** patently without merit," not if it is untimely filed. If the legislature intended for a trial judge to sua sponte dismiss a petition as being untimely, it would have so provided in section 122-2.1(a)(2) of the Act. Instead, the legislature provided in section 122-5 that the State may file a motion to dismiss. 725 ILCS 5/122-5 (West 2000). By addressing timeliness and frivolousness in separate provisions of the Act, the legislature plainly intended to draw a distinction between these two flaws of post-conviction petitions.

To accept the argument that the circuit court has the authority to dismiss a petition pursuant to section 122-2.1(a)(2) of the Act we would have to hold, contrary to the language of the Act, that the phrase "frivolous or *** patently without merit" encompasses untimely petitions. We will not ignore the Act's language and adopt this interpretation. If a petition is untimely that does not necessarily mean that the petition lacks merit. "Frivolous" has been defined as "of little weight or importance: having no basis in law or fact." Webster's Third New International Dictionary 913 (1993); Black's Law Dictionary 677 (7th ed. 1999); accord Anders v. California, 386 U.S. 738, 744, 18 L. Ed. 2d 493, 498, 87 S. Ct. 1396, 1400 (1967) (legal points "arguable on their merits" are not frivolous). "[P]atently" means "CLEARLY, OBVIOUSLY, PLAINLY." Webster's Third New International Dictionary 1654 (1993); Black's Law Dictionary 1147 (7th ed. 1999). "[M]erit" means "legal significance, standing, or importance." Webster's Third New International Dictionary 1414 (1993); Black's Law Dictionary 1003 (7th ed. 1999). These terms do not include issues of timeliness.

Further, time is not an inherent element of the right to bring a post-conviction petition. Wright, 189 Ill. 2d at 10-11. For that reason, time limitations in the Act should be considered as an affirmative defense and can be raised, waived, or forfeited, by the State. See Wright, 189 Ill. 2d at 11-12. If an untimely petition demonstrates that a defendant suffered a deprivation of constitutional magnitude, a dutiful prosecutor may waive that procedural defect during the second stage of the post-conviction proceedings.

Moreover, when a circuit court determines whether a defendant is culpably negligent in filing his petition late, the circuit court makes an assessment of the defendant's credibility. See McCain, 312 Ill. App. 3d at 531. At this initial stage of the proceedings, however, the court should only determine whether the petition alleges constitutional deprivations. The process at the summary review stage measures a petition's substantive virtue rather than its procedural compliance. See Johnson, 312 Ill. App. 3d at 534. In determining an issue of credibility, the circuit court necessarily exceeds the boundary set by section 122-2.1(a)(1).

Finally, a defendant's claim of actual innocence cannot be reviewed when a circuit court enters a summary dismissal sua sponte, because the State does not have the opportunity to review the claim. The end result is that the State's prerogative to proceed on the merits of the petition despite procedural flaws is usurped by the circuit court.

Claims of actual innocence may be raised in a manner other than in a post-conviction petition, including in a section 2-1401 motion. 735 ILCS 5/2-1401 (West 2000). Nonetheless, to allow the circuit court to dismiss summarily post-conviction petitions for failure to present evidence of actual innocence in a timely manner could lead to a miscarriage of justice. Although our criminal justice system needs finality in criminal litigation and judgments, it should not come at the expense of justice and fairness.

In sum, we conclude that the matter of untimeliness should be left for the State to assert during the second stage of the post-conviction proceedings. Therefore, the lower courts improperly deemed untimely defendants' respective post-conviction petitions.

B. Vagueness Challenge

Defendants also argue that section 122-1(c)'s timing requirement is unconstitutionally vague and violates due process. We disagree.

As a threshold matter, we observe that defendants failed to raise this issue below. Nonetheless, a party may challenge the constitutionality of a statute at any time. People v. Wagener, 196 Ill. 2d 269, 279 (2001). A statute challenged as unconstitutional enjoys a presumption of constitutionality. Tully v. Edgar, 171 Ill. 2d 297, 304 (1996). If we reasonably can, we must construe a statute as constitutional and valid. Lee v. Nationwide Cassel, L.P., 174 Ill. 2d 540, 549 (1996). We will deem a legislative act unconstitutional when it is so vague, indefinite and uncertain that the courts are unable, by accepted rules of construction, to determine with any reasonable degree of precision the legislature's intent. Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc., 118 Ill. 2d 389, 402 (1987), quoting Mayhew v. Nelson, 346 Ill. 381, 387 (1931).

We have found statutes unconstitutionally vague where their " `terms are so ill-defined that the ultimate decision as to [their] meaning rests on the opinions and whims of the trier of fact rather than any objective criteria or facts.' " Stern v. Norwest Mortgage, Inc., 179 Ill. 2d 160, 168 (1997), quoting People v. Burpo, 164 Ill. 2d 261, 265-66 (1995). Mathematical certainty in the language is, however, not required. People v. Warren, 173 Ill. 2d 348, 356 (1996). If a statute can be made more definite by a reasonable construction, the court must give the statute that interpretation. People v. Lang, 113 Ill. 2d 407, 455 (1986). A statute will not be rendered unconstitutionally vague merely because one could imagine hypotheticals that question the meaning of certain terms. People v. Izzo, 195 Ill. 2d 109, 113 (2001); In re R.C., 195 Ill. 2d 291, 299 (2001); Schiller Park Colonial Inn, Inc. v. Berz, 63 Ill. 2d 499, 513 (1976).

In the instant case, we note that we are not dealing with hypotheticals. Each defendant filed a post-conviction petition that was deemed untimely. Further, the lower courts held that each defendant failed to demonstrate an absence of culpable negligence in bringing his respective petition.

Section 122-1(c) of the Post-Conviction Hearing Act reads 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 2000).

Defendants first argue that section 122-1(c) is vague because it is a run-on sentence and presents several alternative deadlines, many with triggering dates not defined in section 122-1(c) but, rather, defined by supreme court rules. Thus, defendants argue, one must have a certain familiarity with the supreme court rules in order to determine the applicable deadline. We reject defendants' contention on this point.

The argument that a petitioner must have some familiarity with supreme court rules falls well short of a valid attack on section 122-1(c)'s constitutionality. Virtually any motion or petition filed in a court requires a degree of knowledge with respect to supreme court rules and various procedural rules. Besides, it is well settled that "[a]ll citizens are presumptively charged with knowledge of the law." Atkins v. Parker, 472 U.S. 115, 130, 86 L. Ed. 2d 81, 93, 105 S. Ct. 2520, 2529 (1985). Accord Pyle v. Ferrell, 12 Ill. 2d 547, 555 (1958) (stating that "ignorance of the law or legal rights will not excuse delay in bringing suit").

It may be true that section 122-1(c) is difficult for a defendant or other layperson to understand. We will not, however, deem a statute unconstitutionally vague merely because it contains long sentences or complex language. People v. Conlan, 189 Ill. 2d 286, 292-93 (2000). If we held that statutes with long and complex sentences were inherently vague, our courts would be invalidating statutes faster than the legislature could enact statutes.

Defendants also support their argument that the deadlines are ambiguous by pointing to a conflict between the districts of our appellate court on the issue of when a sentence is final. Defendants refer to the disagreement between the Fourth District's opinion in People v. Ivy, 313 Ill. App. 3d 1011 (2000), and the Second District's opinion in People v. Hager, 314 Ill. App. 3d 951 (2000). We granted Hager's petition for leave to appeal and that cause is currently pending in this court. People v. Hager, No. 90115. Defendants argue that pro se litigants cannot be expected to understand a statute that appellate court panels cannot consistently discern. Again, we reject defendants' contention on this point. The fact that a statute might be susceptible of misapplication or varying interpretations does not necessarily make it unconstitutional. Stern v. Norwest Mortgage, Inc., 179 Ill. 2d 160, 168 (1997); Stein v. Howlett, 52 Ill. 2d 570, 580 (1972).

Finally, defendants argue that no decision has elucidated the meaning of "culpable negligence" or set standards for how to establish its absence. Since the statute and case law provide no guidance as to what a petitioner must do to satisfy this standard, the standard is unconstitutionally vague. Again, we disagree.

We conclude that the phrase "culpable negligence" is not unconstitutionally vague. The absence of statutory definitions of a few terms does not render a statute void for vagueness. People v. Anderson, 148 Ill. 2d 15, 28 (1992). As noted previously, language does not possess mathematical or scientific precision, and courts will give undefined statutory terms their plain and ordinary meaning. Anderson, 148 Ill. 2d at 28. Culpable negligence has been defined as "[n]egligent conduct that, while not intentional, involves a disregard of the consequences likely to result from one's actions." Black's Law Dictionary 1056 (7th ed. 1999). Culpable negligence has also been defined as "something more than negligence" involving "an indifference to, or disregard of, consequences." 65 C.J.S. Negligence §19 (2000). Accord 1 R. Rawle, Bouvier's Law Dictionary 736 (3d rev. 1914) (stating that "culpable neglect would seem to convey the idea of neglect for which he was to blame as is ascribed to his own carelessness, improvidence or folly").

Our courts have interpreted the "culpable negligence" phrase consistently with these definitions. In People v. Wilson, 143 Ill. 2d 236, 248 (1991), this court impliedly equated culpable negligence with recklessness. We approvingly cited an opinion of the highest court of the State of New York describing culpable negligence as a " `conscious choice of a course of action, in disregard of the consequences' " that might follow. Wilson, 143 Ill. 2d at 248, quoting People v. Decina, 2 N.Y.2d 133, 140, 138 N.E.2d 799, 803-04, 157 N.Y.S.2d 558, 565 (1956).

The culpable negligence phrase also appears in several state statutes and court rules (e.g., 55 ILCS 5/3-12013, 3-14044 (West 2000) (Counties Code); 65 ILCS 5/10-1-40 (West 2000) (Illinois Municipal Code); 70 ILCS 1210/30 (West 2000) (Park System Civil Service Act); 70 ILCS 1215/33 (West 2000) (Park Annuity and Benefit Fund Civil Service Act); 70 ILCS 2605/4.33 (West 2000) (Metropolitan Water Reclamation District Act); 110 ILCS 70/46 (West 2000) (State Universities Civil Service Act); 725 ILCS 5/122-1(c) (West 2000) (Post-Conviction Hearing Act); 750 ILCS 50/5 (West 2000) (Adoption Act); 188 Ill. 2d R. 606(c) (Supreme Court Rule 606(c)) ...


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