Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois No. 95-CF-781 Honorable James T. Teros Judge, Presiding
The opinion of the court was delivered by: Justice Holdridge
The defendant, DeWayne C. Wilburn, was convicted of aggravated battery with a firearm and armed violence. 720 ILCS 5/12--4.2; 33A--2 (West 1994). The trial court sentenced defendant to 25 years' imprisonment on each offense, to be served consecutively. Defendant filed an amended post-conviction petition, which was dismissed as untimely. Defendant appeals, contending the trial court erred in dismissing his petition. We reverse the trial court's judgment, vacate defendant's sentence on his armed violence conviction and remand for resentencing.
Defendant was convicted of aggravated battery with a firearm and armed violence based on an incident in which he shot the victim in the leg with a handgun and robbed him of approximately $45 in cash. Defendant was sentenced on February 7, 1996, to consecutive 25-year terms of imprisonment.
At that time, armed violence with a handgun was punishable by 15 to 30 years' imprisonment. 720 ILCS 5/33A--3(a) (West 1996). The legislature enacted this sentencing provision by Public Act 88--680 (Pub. Act 88--680, eff. January 1, 1995). Prior to the enactment of Public Act 88--680, the sentencing range for armed violence with a handgun was 6 to 30 years' imprisonment. 720 ILCS 5/33A--3(a); 730 ILCS 5/5--8--1(a)(3) (West 1992).
Defendant's convictions were affirmed on appeal. People v. Wilburn, No. 3--96--0224 (1997) (unpublished order under Supreme Court Rule 23). Our supreme court denied defendant's petition for leave to appeal on October 1, 1997. On April 26, 2001, defendant filed a pro se petition seeking relief pursuant to the Post-Conviction Hearing Act. 725 ILCS 5/122--1 et seq. (West 2000). The trial court appointed counsel for defendant, and an amended petition was filed. In his amended petition, defendant asserted his armed violence sentence should be vacated because Public Act 88--680, which amended the sentencing provisions for armed violence, had been held unconstitutional in People v. Cervantes, 189 Ill. 2d 80, 723 N.E.2d 265 (1999). Defendant further asserted that the late filing of his post-conviction petition was not due to his culpable negligence because Public Act 88--680 was not declared unconstitutional until after the deadline for filing his petition had passed.
The trial court granted the State's motion to dismiss defendant's petition, finding it was not timely filed.
On appeal, defendant contends the trial court erred in dismissing his post-conviction petition as untimely because the armed violence sentencing statute was declared unconstitutional after the deadline for filing his petition had passed.
Under the Post-Conviction Hearing Act, proceedings must be commenced within:
"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 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).
Lack of culpable negligence is difficult to establish. People v. Burris, 315 Ill. App. 3d 615, 734 N.E.2d 161 (2000). However, the delay in filing a post-conviction petition may be excused when the petition is based on the issuance of a new case which changes the law applicable to the defendant's claim. See People v. Lee, 326 Ill. App. 3d 882, 762 N.E.2d 18 (2001); People v. Hernandez, 296 Ill. App. 3d 349, 694 N.E.2d 1082 (1998).
We generally will not disturb a trial court's determination as to whether a delay was a result of the defendant's culpable negligence unless that determination is manifestly erroneous. People v. Caballero, 179 Ill. 2d 205, 688 N.E.2d 658 (1997). However, the trial court's decision in this case is not based upon fact-finding or a credibility determination. Instead, the issue is whether the trial court correctly applied the law to the established facts. Therefore, the correct standard of review in this case is de novo. See Branson v. Department of Revenue, 168 Ill. 2d 247, 659 N.E.2d 961 (1995) ...