IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT Fourth Division
January 30, 2003
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
JESSE CORTEZ, DEFENDANT-APPELLANT.
Appeal from the Circuit Court of Cook County. No. 92 CR 8378 The Honorable Vincent M. Gaughan, Judge Presiding.
The opinion of the court was delivered by: Justice Greiman
Following a jury trial, the petitioner, Jesse Cortez, was convicted of one count of first degree murder and one count of attempted murder. On December 9, 1993, petitioner was sentenced to concurrent terms of 35 and 15 years.
On June 15, 1998, petitioner filed a pro se post-conviction petition. On February 9, 1999, the State filed a motion to dismiss the petition as untimely. Petitioner filed a response and supporting affidavit alleging that his petition was filed late because he was held in continuous segregation from April 3, 1994, through May 31, 1998. On October 12, 2000, the trial court granted the State's motion to dismiss the petition on the basis that it was untimely and petitioner was not free of culpable negligence.
The primary issue before us is whether the trial court properly dismissed petitioner's petition for post-conviction relief as untimely. If we find that the trial court erred in allowing the State to file and proceed with its motion to dismiss petitioner's petition for post-conviction relief past the statutory deadline, then we must determine the remedy, if any, to which petitioner is entitled.
"The Illinois Post-Conviction Hearing Act [(Act)] provides a mechanism by which those under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both." People v. Coleman, 183 Ill. 2d 366, 378-79 (1998); 725 ILCS 5/122-1 (West 1998). Pursuant to section 122-2.1 of the Act, the trial court has the authority to dismiss a petition if the petitioner is sentenced to imprisonment and if the court finds that the petition is frivolous or is patently without merit. See Coleman, 183 Ill. 2d at 379, quoting 725 ILCS 5/122-2.1(a)(2) (West 1998), and citing People v. Brisbon, 164 Ill. 2d 236, 242-43 (1995). Under section 122-2.1, the State is not required to file any type of responsive pleading. Coleman, 183 Ill. 2d at 379. The trial court must determine within 90 days of the filing of the petition if it is frivolous or patently without merit. People v. Ponyi, 315 Ill. App. 3d 568, 572-73 (2000).
If a petition is not dismissed under section 122-2.1, then it moves to a second-stage proceeding under sections 122-4 through 122-6 of the Act. Coleman, 183 Ill. 2d 366; 725 ILCS 5/122-2.1(b) (West 1998). "In such cases and in the cases of petitioners under sentence of death, section 122-5 directs that the State shall either answer or move to dismiss the petition." Coleman, 183 Ill. 2d at 379. Where the issue is whether the allegations are sufficient to warrant an evidentiary hearing under the Act, the standard of review is that of plenary review. Coleman, 183 Ill. 2d at 388-89.
Section 122-1 of the Post-Conviction Hearing Act provides the time frame for filing a post-conviction petition:
"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 issuance of the opinion from the Illinois Supreme Court or 6 months after the date of the order denying certiorari by the United States Supreme Court or the date for filing such a petition if none 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 culpable negligence." 725 ILCS 5/122-1(West 1998).
In the case at bar, final judgment was entered when petitioner was sentenced on December 9, 1993. The parties do not dispute that the applicable date for timely filing of petitioner's petition was December 9, 1996, which was three years from December 9, 1993. Petitioner, however, did not mail his petition until June 1, 1998.
The petition was file-stamped on June 15, 1998. On June 19, 1998, petitioner's case was assigned to a trial court judge. When the case was called on June 19, 1998, the State advised the trial court it was planning to file a motion to dismiss, and the public defender's office informed the court that it was not involved in petitioner's case. At that point, the trial court appointed the public defender's office to represent petitioner. On February 9, 1999, the State filed its motion to dismiss. On July 12, 2000, petitioner filed a response to the State's motion to dismiss. In his response, petitioner alleged that he had been in segregation, first, at Menard Correctional Center from April 3, 1994, to May 31, 1996, then at Stateville Correctional Center from May 31, 1996, to June 2, 1997, and, lastly, at Pontiac Correction Center from June 2, 1997, to May 31, 1998. By way of affidavit, petitioner stated that while in segregation he had "sharply reduced access" to the law library and to a law clerk. On October 12, 2000, at the conclusion of a hearing on the State's motion to dismiss, the trial court granted the State's motion to dismiss, finding that petitioner's petition for post-conviction relief was not timely filed and that petitioner failed to show that the delay was not due to his culpable negligence.
Pursuant to section 122-2.1(b) of the Act, if a petition is not summarily dismissed at the first stage, it advances to the second stage, where "the court shall order the petition to be docketed for further consideration in accordance with Sections 122-4 through 122-6." 725 ILCS 5/122-2.1(b) (West 1998). According to section 122-5, the State must answer or move to dismiss a petition within 30 days after the entry of an order pursuant to section 122-2.1(b) or "within such further time as the court may set." 725 ILCS 5/122-5 (West 1998).
According to section 122-5, when a trial court decides not to summarily dismiss a post-conviction at the first stage, the State has 30 days from that day to file a motion to dismiss the petition, unless the trial court has set some further time limit. A review of the record reveals that the trial court never extended the time by which the State could file its motion to dismiss. Thus, the record clearly shows that the State filed its motion to dismiss beyond the time limit set forth in section 122-5.
On appeal, petitioner contends that since the State filed its motion to dismiss approximately four months after the filing deadline, the trial court should have found that the State waived its opportunity, at the second-stage, to object to the timeliness of his petition. Moreover, petitioner argues that pursuant to People v. Scullark, 325 Ill. App. 3d 876 (2001), the trial court should have found that he was not culpably negligent in filing his petition late. The State argues that since petitioner responded to the motion to dismiss and a hearing was held, petitioner was not prejudiced and, as a result, his argument is without merit.
Presently, there are two narrow issues before us. First, we must determine what remedy is available to petitioner as a result of the State filing its motion to dismiss past the statutory filing deadline. More specifically, we must determine whether petitioner was automatically entitled to an evidentiary hearing due to the fact that the State's motion to dismiss was not timely. If we find that petitioner is not automatically entitled to an evidentiary hearing, then we must determine whether the trial court's decision to grant the State's motion to dismiss, thereby finding that petitioner failed to show that he was not culpably negligent, was an abuse of discretion.
The facts of the case at bar present us with an issue of first impression, namely, what remedy, if any, is available to petitioner as a result of the State filing its motion to dismiss past the statutory filing deadline? In an effort to answer this question, we turn first to the language of the Post-Conviction Hearing Act.
A careful review of the Post-Conviction Hearing Act lends us no guidance on this issue. Where a petition for post-conviction relief is dismissed pursuant to an untimely filed motion to dismiss, the legislature, in drafting the Act, did not provide the petitioner with a remedy. Consequently, we turn next to the Illinois Supreme Court for insight.
In People v. Howell, 60 Ill. 2d 117, 119 (1975), the defendant was imprisoned for 65 days "without giving him a prompt preliminary hearing or presenting his case to a grand jury." The Illinois Supreme Court held that the State violated section 7 of article I of the Illinois Constitution, which provides:
"No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by [ ] indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause." Howell, 60 Ill. 2d at 119, quoting Ill. Const. 1970, art. I, § 7.
The Illinois Supreme Court acknowledged that since the defendant did not receive a prompt preliminary hearing, the constitution had been violated and that "[t]he legislature has not fashioned a remedy of discharge for a violation of this section." Howell, 60 Ill. 2d at 120.
In Howell, the supreme court noted its decision in People v. Hendrix, 54 Ill. 2d 165, 169 (1973), where it specifically stated that "section 7 does not provide a grant of immunity from prosecution as a sanction for its violation." Furthermore, the Hendrix court stated that it would not make sense to interpret section 7 as requiring the discharge and dismissal of the defendant and his case. Hendrix, 54 Ill. 2d at 169.
Ultimately, the Howell court found that the nature of the remedy available to a defendant who did not receive a prompt preliminary hearing "is of little concern in the disposition of the present case." Howell, 60 Ill. 2d at 120. In Howell, the defendant raised his objection to not receiving a prompt preliminary hearing for the first time on appeal, and the appellate court reviewed the issue under the plain error doctrine. Howell, 60 Ill. 2d at 120. The supreme court specifically found that the defendant was precluded from raising the issue of the violation of section 7 by his failure to present the issue to the trial court. Howell, 60 Ill. 2d at 120-21.
In Howell, the supreme court held that the appellate court should not have considered the violation to be plain error. The Howell court stated that the plain error rule "permits the court on review to take notice of errors appearing upon the record which deprive the accused of substantial means of enjoying a fair and impartial trial and in criminal cases in which the evidence is closely balanced to consider errors that have not been properly preserved." Howell, 60 Ill. 2d at 121. In Howell, the supreme court held that the defendant's denial of a prompt preliminary hearing did not deprive him of a fair and impartial trial. Howell, 60 Ill. 2d at 405. Thus, in consideration of the facts of the case, the Howell court held that it was not obligated to consider the failure to conduct a prompt preliminary hearing as plain error. Howell, 60 Ill. 2d at 405.
Lastly, the supreme court in Howell noted not only that the violation of the right to a prompt preliminary hearing had been complained of with increasing frequency in several of the cases presented to the court, but it also noted that the absence of a remedy presented the possibility for future abuse. Howell, 60 Ill. 2d at 121-22. Thus, the Howell court took it upon itself to fashion a remedy. The supreme court held that where a defendant does not receive a prompt preliminary hearing, the trial court is to take the delay into consideration when "determining the voluntariness of any statement given by the defendant during this delay." Howell, 60 Ill. 2d at 122.
In the case at bar, we recognize that if we do not provide a remedy for the violation of section 122-5, where the State files its motion to dismiss past the statutory deadline, this court will be faced with this issue in the future. In reviewing the language of the Post-Conviction Hearing Act, as a whole, and noting the high standards that must be met by a petitioner seeking an evidentiary hearing, we find that it does not make sense to automatically grant an evidentiary hearing where the State failed to timely file its motion to dismiss. Thus, we are left to fashion our own test for determining when the State's failure to timely file a motion to dismiss warrants granting the petitioner an evidentiary hearing under section 122-6.
We hold that where the State does not file its motion to dismiss a post-conviction petition within the statutory filing deadline set forth in section 122-5, the petitioner is entitled to an evidentiary hearing only where he shows (1) that he objected, at the trial court level, to the State's delay in filing its motion to dismiss and (2) that he suffered prejudice as a result of the State's failure to file a timely motion to dismiss. Where these two requirements are met, the trial court must grant the petitioner an evidentiary hearing.
In the case at bar, petitioner's response to the State's motion to dismiss includes a paragraph objecting to the State's delay in filing its motion to dismiss. In granting the State's motion to dismiss, we find that the trial court impliedly denied the motion to dismiss on the grounds raised by the petitioner, but granted the motion on the grounds raised by the State. Since petitioner objected to the State's untimely filing of its motion to dismiss at the trial court level, we find that petitioner satisfied the first prong of the test.
Next, we address whether petitioner has suffered any prejudice as a result of the State's delay in filing its motion to dismiss. The facts of the case at bar reveal that petitioner filed a response to the State's motion to dismiss. Additionally, we note that petitioner's response to the State's motion to dismiss was not filed pro se, but rather petitioner was aided by legal counsel in the drafting and filing of his response brief. The record further indicates that a hearing was held on the State's motion to dismiss. Since petitioner was given the opportunity to respond to the State's motion to dismiss and a hearing was held, we find that petitioner has failed to show that he suffered any prejudice as a result of the State's untimely filing.
Although petitioner raised the issue of the delay in the State's filing to the trial court, petitioner has not shown that he was prejudiced by the State's untimeliness; therefore, we hold that petitioner is not automatically entitled to an evidentiary hearing. Moreover, we remind the State that if a motion to dismiss a petition for post-conviction relief is not going to be filed within 30 days from the entry of the trial court's order on the first-stage proceeding, then the trial court, pursuant to section 122-5, has the authority to set some further time limit. In the case at bar, the State, in an effort to protect the integrity of the post-conviction process, should have asked the trial court for an extension of time regarding the filing of its motion to dismiss.
We now examine whether the trial court erred in granting the State's motion to dismiss petitioner's petition for post-conviction relief. Specifically, we address whether the State properly found that petitioner failed to show that he lacked culpable negligence. An order granting the State's motion to dismiss is a final judgment subject to de novo review. People v. Barrow, 195 Ill. 2d 506, 519 (2001).
In People v. Scullark, 325 Ill. App. 3d 876, 885 (2001), the appellate court held:
"[W]here a petitioner who has begun work on a post-conviction petition is placed in segregation through no foreseeable fault of his own or otherwise prevented from filing his petition for a period of time until and including the last day of the period in which he may timely file, his failure to file in a timely manner is not culpable negligence."
The Scullark court qualified its holding by expressly stating that "where segregation is at issue, the petitioner must allege that his placement in segregation was through no fault of his own." Scullark, 325 Ill. App. 3d at 888.
In Scullark, 325 Ill. App. 3d at 886, the petitioner was placed in segregation on May 26, 1998, and his post-conviction petition and other property were confiscated after he had begun working on his petition. The record showed that the petitioner remained in segregation until well after his petition was due. Scullark, 325 Ill. App. 3d at 886. The appellate court found that "[b]ecause of his segregation status and because his property was taken from him, petitioner was not able to file his petition on any date after the date he was placed in segregation. Thus, the filing date for his petition was effectively moved forward to the day he was placed in segregation." Scullark, 325 Ill. App. 3d at 886.
The appellate court in Scullark expressly stated that it reached the issue of whether a petitioner's segregation results in culpable negligence as an issue of first impression. Accordingly, the Scullark court found that "petitioner had no precedent on this issue to inform him of the necessity of alleging that he was not in segregation due to his own misconduct." Scullark, 325 Ill. App. 3d at 888. Since the petitioner's ignorance of the law was through no fault of his own, the appellate court remanded the matter in order to provide the petitioner an opportunity to amend his petition to so allege that he was not in segregation due to his own misconduct. Scullark, 325 Ill. App. 3d at 888.
In the case at bar, petitioner's petition for post-conviction relief was mailed on June 1, 1998, and petitioner's response to the State's motion to dismiss was filed on July 12, 2000. Scullark was decided by this court on March 13, 2001; thus, petitioner had no knowledge of the pleading requirements set forth in Scullark when he alleged that he was free of culpable negligence due to the fact that he was held in continuous segregation. Like the court in Scullark, we take petitioner's ignorance of the law, which was obviously through no fault of his own, into consideration in determining whether the trial court erred in finding that petitioner was not free of culpable negligence.
The parties do not dispute that petitioner's petition was due no later than December 9, 1996, but was not filed until June of 1998. In his petition, petitioner fails to allege any reason explaining why his petition was filed untimely. The issue of untimeliness is not mentioned in the petition. Not until the filing of his response to the State's motion to dismiss does petitioner allege that his petition was not timely filed due to the fact that he was in segregation and, consequently, had limited access to the law library. Attached to petitioner's response brief is an affidavit in which petitioner asserts that he did not learn of the statutory filing deadline for a post-conviction petition until 1997, long after the filing deadline for his own petition. In his affidavit, petitioner asserts that his petition was filed untimely due to the fact that he was in segregation and, thus, had reduced access to the law library and a law clerk. Without the access to the law library and the aid of a law clerk, petitioner asserts, by way of his affidavit, that he had no way of filing a post-conviction petition. A careful reading of petitioner's affidavit reveals that petitioner does not allege that he had no access to the law library; rather, petitioner asserts that during the time he was in segregation he had "sharply reduced access to the law library."
After reviewing petitioner's response brief and hearing arguments, the trial court dismissed petitioner's petition on the basis of untimeliness, finding that petitioner failed to show that he lacked culpable negligence. For the reasons discussed below, we affirm the trial court's decision to dismiss petitioner's petition for post-conviction relief.
We first note that there is a significant factual distinction between the case at bar and Scullark. In Scullark, the defendant had already begun work on his petition before it was confiscated from him, while in the instant case, petitioner did not begin to prepare his petition until long after the due date for filing had passed. That fact that the defendant in Scullark had already started his petition before the prison went into lockdown was crucial to the court's holding. The Scullark court explained:
"To hold otherwise would mean, for example, that a petitioner who completed a petition even several months before it was due and was placed in segregation immediately after finishing the petition but before he was able to file it and remained unable to file it until after the deadline, would be culpably negligent." Scullark, 325 Ill. App. 3d at 885.
In the case at bar, it is significant that the petitioner did not begin work on his petition until long after the date it was due to be filed. As such, the aforementioned concerns of the Scullark court are not applicable in this case.
Next, we address petitioner's contention that he lacks culpable negligence as a result of being held in continuous segregation. We begin by reviewing the record for an indication of whether petitioner was placed in segregation as a result of his own misconduct. Petitioner's response to the State's motion to dismiss includes computer printouts from the Illinois Department of Corrections which indicate that on numerous occasions petitioner was placed in segregation for long periods of time. These computer printouts further reveal that petitioner's placement in segregation was indeed due to his own misconduct, as his record is replete with disciplinary violations. For instance, petitioner was placed in "disciplinary segregation, lockup" on at least three separate occasions. Furthermore, he was listed as a participant in the assault of a staff member on at least two occasions. Under these circumstances, petitioner's culpability is undeniable. As the Scullark court explained:
"[E]ngaging in intentional misconduct which would, with reasonably foreseeable certainty, result in prison action that would prevent one from filing in a timely manner would in all likelihood fall within the definition of culpable negligence as 'negligence of a gross and flagrant character.' " Scullark, 325 Ill. App. 3d at 887-88.
Thus, it would be senseless to remand this matter so as to afford petitioner the opportunity to allege that he was in segregation through no fault of his own behavior because the computer printouts that he offered into evidence render such an argument moot.
Next, we address petitioner's allegation that he had "sharply reduced access" to the law library. While he does not elaborate on the extent of his access, he implies that he retained at least partial access to the library. This court has held that while the total denial of access to the prison law library during a lockdown may sometimes excuse a late filing, a petitioner who has some access to the library during the period in which he must file fails to show that he lacked culpable negligence in failing to timely file his petition based solely on the evidence of the lockdown. In that instance, the petitioner must also show that he was deprived of a "meaningful opportunity" to prepare the petition. See People v. Mitchell, 296 Ill. App. 3d 930 (1998); People v. Van Hee, 305 Ill. App. 3d 333 (1999). In Mitchell, the defendant alleged that his delay in filing a post-conviction petition was not due to his culpable negligence because the prison in which he was incarcerated was on lockdown for part of the time period in which he was to file his petition. The majority in Mitchell, agreeing with Justice Green's dissent in People v. McClain, 292 Ill. App. 3d 185 (1997), explained that "where the record shows that lockdowns have deprived the defendant of a meaningful opportunity to prepare his petition in a timely fashion, we believe some delay is excusable." Mitchell, 296 Ill. App. 3d at 933. However, the Mitchell court found that the defendant failed to allege sufficient facts to meet his burden of showing that he was deprived of the meaningful opportunity to prepare his petition in a timely fashion where the prison was sporadically, but not continuously, in lockdown during the relevant time period. Mitchell, 296 Ill. App. 3d at 934. In People v. Van Hee, 305 Ill. App. 3d 333, 337 (1999), the court found that the defendant had failed to include the specific dates of the prison's lockdown, and that absent such information, it would deem the lockdown as having been short in duration. Consequently, the court determined that the lockdown did not excuse the defendant's delay because he had access to the library during the time the lockdown was not in effect and, therefore, was not deprived of a meaningful opportunity to prepare his petition. Van Hee, 305 Ill. App. 3d at 337. Similarly, in the case at bar, we find that petitioner had some access to the library and that his segregation did not deprive him of a meaningful opportunity to prepare his petition in a timely fashion. Therefore, even if the petitioner's segregation had not been the result of his own misconduct, he would still be culpably negligent under the above-discussed circumstances.
Finally, we hold that the test announced in this case has retroactive application. This implies that those who have suffered a violation of section 122-5, where the State has filed an untimely motion to dismiss, may have a means to remedy it.
For the foregoing reasons, we affirm the trial court's dismissal of petitioner's petition for post-conviction relief.
THEIS, P.J., and KARNEZIS, J., concur.
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