Appeal from the Circuit Court of Kane County. No. 95--CF--1399 Honorable Grant S. Wegner, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice O'malley
Modified Upon Denial of Rehearing October 14, 2005
On November 7, 1995, defendant Jose J. Ramirez entered a negotiated plea of guilty to armed violence. In exchange for his plea and his acceptance of a 122-year prison sentence, the State dismissed additional charges against defendant. At the time of his plea, the trial court admonished defendant that the minimum sentence for his conviction was 10 years. The 10-year minimum applied instead of the usual 6-year minimum for armed violence because Public Act 88--680, commonly known as the Safe Neighborhoods Act (Pub. Act 88--680, eff. January 1, 1995), increased the minimum sentences for offenses involving certain weapons, including the handgun defendant carried at the time of his offense. Compare 720 ILCS 5/33A--3(a) (West 1992) (preamendment version of armed violence statute classifying armed violence as a Class X felony) and 730 ILCS 5/5--8--1(a)(3) (West 1992) (sentence for Class X felony must be between 6 and 30 years unless otherwise specified in statute) with 720 ILCS 5/33A--3(a) (West 1994) (incorporating Safe Neighborhoods Act, effective January 1, 1995, and showing an increased minimum sentence for armed violence based on the category of weapon used). Four years after defendant pleaded guilty, the supreme court declared the Safe Neighborhoods Act to be unconstitutional (see People v. Cervantes, 189 Ill. 2d 80 (1999)). Both parties now agree that, after the striking of the Safe Neighborhoods Act, the law remained as it had been prior to Public Act 88--680, and the minimum sentence defendant faced was actually 6 years and not 10.
On May 27, 2003, defendant, through his retained counsel, filed a petition for post-conviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2002)). The trial court entered an order finding that the petition was not frivolous. The State filed a motion to dismiss the petition because, among other reasons, it was untimely. After a hearing, the trial court denied the State's motion and ordered the State to answer defendant's petition. On February 11, 2004, after another hearing, the trial court denied defendant's petition. Defendant timely appeals, and we affirm.
The Act provides a remedy for defendants who have suffered substantial violations of their constitutional rights. People v. Edwards, 197 Ill. 2d 239, 243-44 (2001). Under the Act, a post-conviction proceeding not involving the death penalty contains three stages. Edwards, 197 Ill. 2d at 244. At the first stage, the circuit court must independently review the post-conviction petition within 90 days of its filing and determine whether the petition should be dismissed because it is frivolous or is patently without merit. Edwards, 197 Ill. 2d at 244, quoting 725 ILCS 5/122--2.1(a)(2) (West 1998). To survive the first stage, a petition must state only the gist of a constitutional claim. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). A petition also survives the first stage if the trial court fails to make a finding that it is frivolous or without merit within 90 days, as required under section 122--2.1 of the Act. People v. Vasquez, 307 Ill. App. 3d 670, 672-73 (1999).
If the petition survives the first stage, the defendant moves on to the second stage under the Act, at which point an indigent defendant is appointed counsel. People v. Greer, 212 Ill. 2d 192, 203-04 (2004). At the second stage, the defendant's counsel may file an amended post-conviction petition and the State may file a motion to dismiss or an answer to the petition. Gaultney, 174 Ill. 2d at 418, citing 725 ILCS 5/122--5 (West 1992). If the trial court does not dismiss or deny the petition, the proceeding advances to the third and final stage, at which the trial court conducts an evidentiary hearing on the defendant's petition. Gaultney, 174 Ill. 2d at 418. Here, the petition was denied at the second stage.
The State argues that the trial court erred in denying its motion to dismiss defendant's petition as untimely. Defendant agrees that we must consider the timeliness of his petition on appeal. See People v. Johnson, 208 Ill. 2d 118, 128-38 (2003) (judgment may be upheld on any basis shown by the record, even if that basis was rejected by the trial court).
Section 122--1(c) of the Act provides that if no appeal is filed, "[n]o [post-conviction] proceedings *** shall be commenced more than *** 3 years from the date of [the petitioning defendant's] conviction, *** 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 2002). Defendant concedes that his post-conviction petition, which was filed almost eight years after his conviction, was not timely under the Act. However, he claims that the delay in filing was not due to his culpable negligence.
The phrase "culpable negligence" contemplates something greater than ordinary negligence and is akin to recklessness. People v. Rissley, 206 Ill. 2d 403, 420 (2003), quoting People v. Boclair, 202 Ill. 2d 89, 106-08 (2002). A trial court's findings of fact regarding whether a petition's untimeliness was due to culpable negligence will not be reversed unless manifestly erroneous (People v. Caballero, 179 Ill. 2d 205, 214 (1997)), but the trial court's ultimate conclusion as to whether the established facts demonstrate culpable negligence is reviewed de novo (People v. Wilburn, 338 Ill. App. 3d 1075, 1077 (2003)). Here, the trial court made no findings of fact regarding the timeliness issue, and thus our review is de novo.
Defendant argues that the lateness of his petition was not due to his culpable negligence because the basis for his petition, the Illinois Supreme Court's decision in Cervantes, did not arise until four years after his conviction. He thus asserts that he could not have filed his petition within the statutorily mandated three-year period after his conviction.
Defendant cites Wilburn as support for his argument that he was not culpably negligent. In Wilburn, the defendant filed a post-conviction petition, based on Cervantes, over 5 years after his original sentence was imposed and 16 months after Cervantes was decided. Wilburn, 338 Ill. App. 3d at 1076. The court held that the defendant was not culpably negligent in failing to file his petition before Cervantes was issued, because it would be unfair to require him to file his petition based on the change in law occasioned by Cervantes before that decision was even issued. Wilburn, 338 Ill. App. 3d at 1077.
The court in Wilburn also held that the defendant was not culpably negligent for not filing his post-conviction petition until 16 months after Cervantes was issued. Wilburn, 338 Ill. App. 3d at 1077, citing People v. Lee, 326 Ill. App. 3d 882 (2002) (no culpable negligence in a defendant's filing his petition two months after a Supreme Court decision changed the applicable law), and People v. Hernandez, 296 Ill. App. 3d 349 (1998) (no culpable negligence in a defendant's filing his petition 11 months after a change in the law).
We agree with defendant that, pursuant to Wilburn, he was not culpably negligent for failing to file his post-conviction petition during the period before Cervantes was decided. However, we must also consider whether defendant was culpably negligent based on the time period that elapsed between the decision in Cervantes, issued in December 1999, and the filing of his petition on May 27, 2003. See Wilburn, 338 Ill. App. 3d at 1077 (separately considering culpable negligence in delay in filing post-conviction petition for period before change of law and for period after change of law). We conclude that he was.
"A petitioner has the burden of establishing that a delay in filing his post-conviction petition was not due to his culpable negligence." People v. Mitchell, 296 Ill. App. 3d 930, 933 (1998). Defendant offers no reason for his delay in filing a petition until over 40 months after Cervantes was issued. See People v. Hampton, 349 Ill. App. 3d 824, 828 (2004) ...