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People v. Britt-El

August 29, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
VINCENT D. BRITT-EL, APPELLANT.



The opinion of the court was delivered by: Justice McMORROW

UNPUBLISHED

Docket No. 89837-Agenda 9-May 2001.

The defendant, Vincent Britt-El, filed a second post-conviction petition along with a "Motion For Leave To File Second Post-Conviction Petition" in the circuit court of Vermilion County. The circuit court denied the motion as "untimely" and did not consider the merits of defendant's petition. On appeal, the appellate court treated the circuit court's ruling as a summary dismissal of defendant's post-conviction petition and affirmed. The appellate court held that defendant's petition was an improper, successive petition that was not permitted under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000). No. 4-99-0738 (unpublished order under Supreme Court Rule 23). For the reasons that follow, we affirm the judgment of the appellate court.

BACKGROUND

Following a jury trial, defendant was convicted and sentenced on two counts of first degree murder and other felony offenses. Defendant's convictions and sentences were affirmed on direct appeal. People v. Britt, 265 Ill. App. 3d 129 (1994). Defendant filed a petition for leave to appeal from this decision which was denied at the September 1995 term of court. People v. Britt, 163 Ill. 2d 567 (1995).

On August 29, 1996, defendant filed his first petition for post-conviction relief. In this petition, defendant alleged that he had been denied the effective assistance of counsel at trial. Specifically, defendant asserted that his trial counsel had erred in advising defendant not to testify at trial and during a hearing on defendant's motion to suppress. Defendant further alleged that trial counsel had failed to have a "vital" witness testify during the hearing on the motion to suppress, and that trial counsel had failed to properly cross-examine several of the State's key witnesses at trial. On the same day that defendant filed his first post-conviction petition, the circuit court concluded that it did not have jurisdiction to consider the petition because it was filed outside the time limitations set forth in section 122-1 of the Act. See 725 ILCS 5/122-1 (West 1996). Accordingly, the circuit court dismissed the petition.

On September 11, 1996, defendant filed a motion to reconsider. In this motion, defendant conceded that his petition was untimely filed. Defendant noted, however, that under section 122-1 of the Act, an untimely petition may be considered on the merits if the "petitioner alleges facts showing that the delay in filing was not due to his culpable negligence." 725 ILCS 5/122-1 (West 2000). Defendant argued that the prison in which he was incarcerated had been on "several severe lockdowns", that he had been denied access to the prison law library, and that he had been unable to prepare his post-conviction petition. Thus, according to defendant, the delay in filing the petition was not due to his culpable negligence, and his tardiness in filing the petition should have been excused. The circuit court rejected these arguments and denied defendant's motion to reconsider. Defendant appealed.

On appeal, the appellate court affirmed the circuit court's dismissal of defendant's first post-conviction petition. People v. Britt, No. 4-96-0730 (1997) (unpublished order under Supreme Court Rule 23). Citing to People v. Heirens, 271 Ill. App. 3d 392 (1995), which was the governing case law at that time, the appellate court held that "the time frame of section 122-1 of the Act within which a defendant must file his post-conviction petition is jurisdictional, so that the petition is barred if not timely filed." The appellate court noted that defendant had conceded that his petition was untimely. The appellate court then considered and rejected defendant's argument that the delay in filing his petition could be excused because it was not due to defendant's culpable negligence. The appellate court concluded that, even accepting that defendant's prison had been on lockdown, this excused only a portion of the delay in filing. According to the appellate court, defendant's petition was still an additional 11 months tardy beyond that which could be excused by the lockdown and defendant had offered no explanation for this further delay. Accordingly, the appellate court held that the petition was untimely filed and, therefore, that the court was "without jurisdiction to entertain" defendant's post-conviction petition. Defendant subsequently filed a petition for leave to appeal which was denied at the January 1998 term of court. People v. Britt, 176 Ill. 2d 578 (1998).

On August 9, 1999, defendant filed a second post-conviction petition along with a "Motion For Leave To File A Second Post-Conviction Petition" in the circuit court. In this second petition, which is the subject of the present appeal, defendant repeated the allegations of ineffective assistance of counsel that were presented in his first petition. Defendant also raised numerous additional allegations of constitutional violations. Defendant alleged, for example, that his trial counsel was constitutionally ineffective because he failed to request certain limiting instructions, failed to object to the introduction of autopsy photos, and failed to move to suppress certain items of evidence. Defendant also contended that several of the trial court's rulings and several comments made by the prosecutor had denied him certain constitutional rights.

In his "Motion For Leave To File A Second Post-Conviction Petition," defendant repeated the same argument regarding culpable negligence that he had made during his first post-conviction proceeding, even though this argument had previously been rejected by the appellate court. In his motion, defendant asserted that, during the time in which he was trying to prepare his first post-conviction petition, the prison in which he was incarcerated was on several "severe lockdowns" and that this excused the tardy filing of the first petition. After making these assertions, defendant concluded by stating that "the failure of the court to consider these claims made herein [in his second post-conviction petition] will result in a fundamental miscarriage of justice." Defendant then requested that the circuit court "grant[] him leave to file [a] second post-conviction petition."

In a docket entry, the circuit court rejected defendant's argument that the second petition was timely filed and denied defendant's motion for leave to file a second post-conviction petition. Defendant appealed.

On appeal, the appellate court did not consider whether defendant's second post-conviction petition was timely filed but, instead, addressed whether the petition was procedurally barred as an improper, successive petition. In so doing, the appellate court treated the circuit court's denial of defendant's motion for leave to file a second post-conviction petition as a summary dismissal of the second post-conviction petition. See 725 ILCS 5/122-2.1(a)(2) (West 2000).

Before the appellate court, defendant acknowledged that the filing of successive post-conviction petitions is generally prohibited under the Post-Conviction Hearing Act. Defendant maintained, however, that the circumstances of his case fell within the exception which allows successive petitions when it can be shown that "the proceedings on the initial petition were deficient in some fundamental way." People v. Flores, 153 Ill. 2d 264, 273-74 (1992). In support of this argument, defendant cited this court's opinion in People v. Wright, 189 Ill. 2d 1 (1999), a decision which was issued after the completion of defendant's first post-conviction proceedings. According to defendant, Wright overruled Heirens and established that the time limitations in the Act are not jurisdictional but are, instead, a statute of limitations which can only be raised as an affirmative defense by the State in responsive pleadings. Based on this reading of Wright, defendant maintained that the circuit court lacked the authority, under section 122-2.1(a)(2) of the Act, to sua sponte consider the timeliness of his first post-conviction petition during the initial stage of post-conviction review. Therefore, in defendant's view, the proceedings on his initial petition were fundamentally deficient and his second petition should have been considered by the circuit court on the merits.

The appellate court rejected these arguments and affirmed the dismissal of defendant's second post-conviction petition. We then granted defendant's petition ...


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