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 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 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 September 1, 1998, petitioner's case was assigned to a trial court judge. When the case was called on September 1, 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).
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.
In an effort to determine what remedy, if any, is available to petitioner as a result of the State filing its motion to dismiss past the statutory filing deadline, we turn first to the language of the Post-Conviction Hearing Act and find no guidance on this issue. The legislature, in drafting the Act, did not provide the petitioner with a specific remedy for such late filing. 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 ...