No. 01--CF--2955 Honorable Kathryn E. Creswell,Judge, Presiding. Appeal from the Circuit Court OF ILLINOIS, of Du Page County.
The opinion of the court was delivered by: Justice Bowman
JUSTICE BOWMAN delivered the opinion of the court Defendant, Willon B. Wallace, appeals from the second-stage dismissal of his post-conviction petition. Defendant argues that the trial court erred in dismissing the petition as untimely. We affirm.
In January 2002, defendant was charged with four counts of home invasion (720 ILCS 5/12--11(a)(2), (a)(3) (West 2002)); two counts of armed robbery (720 ILCS 5/18--2 (West 2002)); aggravated unlawful restraint (720 ILCS 5/10--3.1(a) (West 2002)); and residential burglary (720 ILCS 5/19--3 (West 2002)). In September 2002, defendant pleaded guilty to home invasion (720 ILCS 5/12--11(a)(3) (West 2002)), and the State nol-prossed the remaining charges. The trial court sentenced defendant to 21 years' imprisonment with a 15-year add-on as required by section 12--11(c) of the Criminal Code of 1961 (Code) (720 ILCS 5/12--11(c) (West 2002)).
Defendant subsequently filed a motion to withdraw his guilty plea, which the trial court denied. On appeal, defendant argued that his sentence must be reduced to 21 years because section 12--11(c) of the Code violated the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, ÃéÂ§11). This court initially agreed. People v. Wallace, No. 2--03--0308 (2004) (unpublished order under Supreme Court Rule 23). However, we later vacated our order pursuant to our supreme court's direction and reconsidered the case in light of People v. Sharpe, 216 Ill. 2d 481 (2005). As a result, on January 13, 2006, we affirmed the trial court's imposition of a 36-year sentence. People v. Wallace, No. 2--03--0308 (2006) (unpublished order under Supreme Court Rule 23).
In October 2006, defendant filed a motion for leave to file a late post-conviction petition as well as a pro se post-conviction petition. The proof of service on the documents states that they were placed in the United States mail on October 3, 2006, though the documents were notarized on October 10, 2006. The papers are file-stamped October 27, 2006.*fn1 On December 19, 2006, the trial court summarily dismissed the petition as untimely. On appeal, this court reversed. We held that the trial court erred in dismissing the petition based on timeliness during the first stage of post-conviction proceedings. Since the 90-day period for summarily dismissing the petition had passed, we remanded the cause for second-stage proceedings. People v. Wallace, No. 2--07--0131 (2008) (unpublished order under Supreme Court Rule 23).
On remand, the trial court appointed counsel to represent defendant. Counsel filed an amended post-conviction petition on March 17, 2009. The amended petition stated that defendant's original petition was filed late, but it argued that defendant was excused from the statutory time limit because the late filing was due not to his culpable negligence but, rather, to prison law library closures. The State filed a motion to dismiss, arguing that the library was open on enough days for defendant to have timely prepared and filed his post-conviction petition. The trial court granted the motion to dismiss on July 10, 2009, and defendant timely appealed.
On appeal, defendant argues that he filed his post-conviction petition within the statutory time limit, so the issue of culpable negligence was irrelevant. We review the dismissal of a post-conviction petition without an evidentiary hearing de novo, which is the same standard that we apply in construing the language of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2006)). People v. Harris, 224 Ill. 2d 115, 123 (2007). The primary rule of statutory construction is to ascertain and give effect to the legislature's intent, which is best determined by the statutory language's plain and ordinary meaning. People v. Jamison, 229 Ill. 2d 184, 188 (2008).
The applicable time limits for a post-conviction petition are the ones that were in effect when the defendant filed the petition. Harris, 224 Ill. 2d at 125 n.1. The Act's time limits are not a jurisdictional bar, but rather act as a statute of limitations that can be raised, waived, or forfeited by the State. People v. Stoecker, 384 Ill. App. 3d 289, 291 (2008). Here, the Act provided the following deadlines*fn2 for a defendant in a non-capital case to file a petition:
"When a defendant has a sentence other than death, no proceedings under this Article shall be commenced more than 6 months after the conclusion of proceedings in the United States Supreme Court, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence. If a petition for certiorari is not filed, no proceedings under this Article shall be commenced more than 6 months from the date for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence. If a defendant does not file a direct appeal, the post-conviction petition shall be filed no later than 3 years from the date of conviction, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.
This limitation does not apply to a petition advancing a claim of actual innocence." (Emphasis added.) 725 ILCS 5/122--1(c) (West 2006).
Thus, section 122--1(c) provides three possible methods for calculating the deadline for filing a post-conviction petition. Under the first method, the petition is due six months after United States Supreme Court proceedings have concluded. Such proceedings did not take place here, so this method does not apply. The third method applies to cases where the defendant did not file a direct appeal, which is not the situation here. Thus, the second method necessarily applies, under which defendant was required to file his petition within "6 months from the date for filing a certiorari petition." 725 ILCS 5/122--1(c) (West 2006). The parties have not cited, nor has our research revealed, any authority analyzing this language.
As previously described, this court initially issued a judgment in defendant's direct appeal in 2004, but we vacated that decision pursuant to our supreme court's order. Thus, our 2004 decision cannot serve as the starting point for calculating the applicable deadline. Rather, the starting point would be January 13, 2006, when we reinstated defendant's 36-year sentence. Under the version of Supreme Court Rule 315(b) in effect at that time, defendant had 21 days from the entry of the judgment to file a petition for leave to appeal, or if he filed an affidavit of intent within the 21-day period, he would have had 35 days from the date of the judgment.*fn3 210 Ill. 2d R. 315(b). Defendant argues that he therefore had 35 days to file a petition for leave to appeal, though he did not file an affidavit of intent within 21 days of the judgment. We note that cases have applied both the 21-day period and the 35-day period in similar situations without discussing why one was more appropriate than the other.*fn4 Compare People v. Mitchell, 296 Ill. App. 3d 930, 932 (1998) (applying 35-day period as hypothetical due date for filing a petition for ...