Appeal from the Circuit Court of Cook County Honorable Fred G. Suria, Judge Presiding.
The opinion of the court was delivered by: Justice Quinn
In 1984, following a jury trial, defendant, James Turner, was convicted of murder and sentenced to 40 years in prison. On May 2, 1986, defendant's conviction and sentence were affirmed by this court on direct appeal. People v. Turner, 143 Ill. App. 3d 417 (1986).
On June 1, 1995, defendant filed a pro se post-conviction petition. The trial court appointed counsel on June 19, 1995. On March 29, 2000, defendant's appointed counsel filed an amended post-conviction petition. On September 14, 2000, the trial court dismissed the amended petition without an evidentiary hearing.
On appeal, defendant argues that dismissal of his post-conviction petition without an evidentiary hearing was improper where the allegations in the petition made a substantial showing of a constitutional violation.
For the reasons that follow, we affirm the decision of the trial court.
On January 13, 1984, defendant was convicted of murder. Defendant's conviction arose from the death of Roy Peterson. Briefly, the facts adduced at the jury trial established that defendant was indicted along with a co-defendant, Eleanor Peterson, for the beating, strangling and scalding murder of Eleanor's husband Roy. The events transpired over a 24-hour period, culminating in Roy's death in the early morning hours of August 12, 1983. In People v. Turner, 143 Ill. App. 3d 417, we set forth in detail the facts supporting defendant's conviction and sentence. To the extent that facts contained in that opinion pertain to the issues defendant raises in his petition, we will repeat them as we consider each issue.
On June 1, 1995, defendant filed a pro se post-conviction petition. The petition asserted defendant's arrest was unconstitutional and that his confession was involuntary. On June 19, 1995, the trial court appointed counsel to represent defendant. On June 21, 1995, the State moved to dismiss the petition on the grounds that it was untimely, barred by res judicata, and failed to make a substantial showing of a constitutional violation. The record does not reflect, nor has either party provided, a ruling on that motion.
On March 29, 2000, defendant's counsel filed a document entitled "supplemental petition." The supplemental petition did not contain the original post-conviction petition allegations. The supplemental petition alleged that defendant was denied his constitutional right to decide whether to tender a jury instruction for the lesser-included offense of involuntary manslaughter. On June 1, 2000, the State moved to dismiss the petition alleging the petition was untimely and failed to make a substantial showing of a constitutional violation.
On September 14, 2000, the trial court, following argument by the parties, dismissed the petition. The court noted:
"There is no question that the statute of limitations will dispose of this case ***. I will not dismiss it on the basis of the statute of limitations. I will say that I will consider it, whether or not there should have been tendered an involuntary murder instruction. In that regard, happily, for the purpose of this ruling, I was the trial judge. *** In light of all the attendant circumstances, I would in fact respectfully dismiss the petition based upon the fact that notwithstanding there is a valid motion under the statute of limitations argument by the State, I am dismissing it. In point of fact, even if I overlooked that and said he didn't know until he had counsel to review the transcripts and file the supplemental petition, that I would not have, under any circumstances in this case, given the instruction, even if tendered, on the voluntary [sic] manslaughter." Defendant now appeals from that dismissal.
Defendant argues that dismissal of his supplemental post-conviction petition without an evidentiary hearing was improper where his allegation made a substantial showing of a constitutional violation. Specifically, defendant argues that although the facts developed at his jury trial warranted an instruction on the lesser-included offense of involuntary manslaughter, his trial attorney decided not to tender a jury instruction on involuntary manslaughter. Defendant maintains that the decision whether to request an instruction on a lesser-included offense was a fundamental personal decision, and therefore he was deprived of this constitutional right.
Initially, the State responds that defendant's pro se petition, filed eight years past the statutory deadline, and his amended "supplemental" petition, filed five years after that, should be dismissed where they are untimely. We agree.
The Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 1994)) provides a mechanism by which criminal defendants can assert that their convictions and sentences were the result of a substantial denial of their rights under the United States Constitution, the Illinois Constitution, or both. See 725 ILCS 5/122-1 (West 1994). An action for post-conviction relief is a collateral proceeding and is not an appeal from the underlying conviction and sentence. People v. Mahaffey, 194 Ill. 2d 154, 170 (2000). In order to be entitled to post-conviction relief, a defendant bears the burden of establishing a substantial ...