from the Circuit Court of Du Page County. No. 85-CF-707
Honorable Daniel P. Guerin, Judge, Presiding.
JUSTICE SPENCE delivered the judgment of the court, with
opinion. Justices Jorgensen and Schostok concurred in the
judgment and opinion.
1 Defendant, Daryl Simms, appeals from the trial court's
denial of his motion to reinstate a petition that he
previously filed under the Post-Conviction Hearing Act
(Postconviction Act) (725 ILCS 5/122-1 et seq. (West
2014)). The trial court ruled that the motion to reinstate
was time-barred as a matter of law because defendant filed it
more than one year after his postconviction petition was
voluntarily dismissed. We conclude that the trial court had
the discretion to grant the motion to reinstate if defendant
sufficiently pleaded that the delay was not due to his
culpable negligence. We therefore reverse and remand.
2 I. BACKGROUND
3 Following a bench trial, defendant was convicted of murder
(Ill. Rev. Stat. 1985, ch. 38, ¶ 9-1(a)), aggravated
criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, ¶
12-14(a)), criminal sexual assault (Ill. Rev. Stat. 1985, ch.
38, ¶ 12-13(a)), armed robbery (Ill. Rev. Stat. 1985,
ch. 38, ¶ 18-2), home invasion (Ill. Rev. Stat. 1985,
ch. 38, ¶ 12-11(a)), and residential burglary (Ill. Rev.
Stat. 1985, ch. 38, ¶ 19-3(a)). He was sentenced to
death. On direct appeal, the supreme court affirmed
defendant's convictions but remanded for resentencing
because the trial court had improperly allowed victim impact
statements during sentencing. People v. Simms, 121
Ill.2d 259, 275-76 (1988). On remand, defendant elected to be
sentenced by a jury, which found him eligible for the death
penalty. In the resulting appeal, the supreme court again
remanded the cause for resentencing, this time due to an
improper jury instruction. People v. Simms, 143
Ill.2d 154, 171-72 (1991). Defendant was resentenced to death
upon remand, and the supreme court affirmed on appeal.
People v. Simms, 168 Ill.2d 176, 182 (1995).
4 Defendant filed a postconviction petition on November 14,
1995. With the trial court's leave, he filed an amended
postconviction petition on May 21, 1997. The trial court
dismissed the amended petition without an evidentiary
hearing. On appeal, the supreme court affirmed the dismissal
of most of the claims but reversed the dismissal of claims
alleging perjury. People v. Simms, 192 Ill.2d 348,
392, 430 (2000). It remanded the cause for an evidentiary
5 In January 2003, as part of a mass commutation of death
sentences, then-Governor George Ryan commuted defendant's
death sentence to life imprisonment. At the time,
defendant's postconviction petition was still pending. On
July 7, 2004, defendant filed a pleading entitled
"Withdrawal of Claims" in which he expressed a
desire to withdraw the remaining postconviction claims.
Defendant stated that he was aware that, after withdrawing
the claims, no evidentiary hearing would take place.
Defendant further stated that he was withdrawing the claims
freely and voluntarily, after having consulted with his
postconviction counsel. The same day, the trial court entered
an order stating: "Petitioner wishing to withdraw Claims
III, IV and V of his Amended Petition, " those
"[c]laims *** are withdrawn [and] no further proceedings
remain pending in this court."
6 On October 18, 2011, defendant filed a petition under
section 2-1401 of the Code of Civil Procedure (Code) (735
ILCS 5/2-1401 (West 2010)), seeking reinstatement of his
postconviction petition. He argued that the July 7, 2004,
order disposing of his remaining postconviction claims was
void because: (1) the State coerced him into withdrawing his
petition, by stating that it would seek reinstatement of the
death penalty if he succeeded on his postconviction
challenge, (2) his postconviction counsel and the State
fraudulently concealed that the courts would likely decide
that the reimposition of the death penalty would be unlawful,
and (3) the procedure through which the withdrawal took place
was unlawful. The trial court granted the State's motion
to dismiss the section 2-1401 petition as untimely. On
appeal, the Office of the State Appellate Defender sought to
withdraw as counsel pursuant to Pennsylvania v.
Finley, 481 U.S. 551 (1987), and People v. Lee,
251 Ill.App.3d 63 (1993). We granted the motion to withdraw,
stating that (1) a due-process violation did not ipso
facto imply a void judgment and (2) no other exception
to section 2-1401's two-year limitations period applied.
People v. Simms, 2013 IL App (2d) 120204-U
¶¶ 11-14 (summary order).
7 On July 1, 2014, defendant filed a motion to reinstate his
postconviction petition; the trial court's ruling on that
motion is the subject of the instant appeal. As part of the
motion, defendant reasserted the postconviction claims that
the supreme court had determined merited an evidentiary
hearing. On July 22, 2014, the trial court ordered the State
to file a response to the motion and ordered defendant to
thereafter file a reply. The State argued in its response
that the trial court should deny defendant's motion
because under People v. English, 381 Ill.App.3d 906
(2008), and People v. Macri, 2011 IL App (2d)
100325, a postconviction petition could not be reinstated
more than one year after it was voluntarily withdrawn. In his
reply, defendant argued, inter alia, that his
situation was distinguishable from Macri because the
supreme court had remanded some of his postconviction claims
for an evidentiary hearing and because section 122-5 of the
Postconviction Act (725 ILCS 122-5 (West 2014)) allowed the
trial court to extend the time for filing pleadings.
8 On September 8, 2014, the trial court denied
defendant's motion to reinstate as untimely pursuant to
the cases cited by the State. The trial court denied
defendant's motion to reconsider on October 21, 2014.
This court granted defendant's motion for leave to file a
late notice of appeal.
9 II. ANALYSIS
10 On appeal, defendant contests the trial court's denial
of his motion to reinstate. As the trial court denied the
petition as untimely as a matter of law, we review its ruling
de novo. See English, 381 Ill.App.3d at
11 We begin by examining English and Macri,
the cases relied on by the trial court. In English,
the defendant was granted leave to voluntarily dismiss his
postconviction petition without prejudice. English,
381 Ill.App.3d at 907. He then sought to reinstate it within
one year, but the trial court denied his motion. Id.
On appeal, the court stated as follows. Section 122-5 of the
Postconviction Act (725 ILCS 5/122-5 (West 2004)) gives the
trial court the discretion to allow the voluntary withdrawal
of a postconviction petition at any time before judgment is
entered. English, 381 Ill.App.3d at 909. The
voluntary withdrawal of a postconviction petition is the
equivalent of a voluntary dismissal in a civil case.