People v. Faraone
Decision Date | 25 September 2000 |
Docket Number | No. 1-99-1046.,1-99-1046. |
Citation | 250 Ill.Dec. 355,316 Ill.App.3d 897,738 N.E.2d 571 |
Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Philip FARAONE, Defendant-Appellant. |
Court | United States Appellate Court of Illinois |
Michael J. Pelletier, Deputy Defender (Gordon H. Berry, of counsel), for Appellant.
Richard A. Devine, State's Attorney of Cook County (Renee Goldfarb, John J. Walters, Daniel J. Kollias, of counsel), for Appellee.
Defendant, Philip Faraone, appeals from the denial of his motion for extension of time to file a post conviction petition. We hold that the principles stated in People v. Coleman, 183 Ill.2d 366, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998), should apply to review of decisions on motions for extensions of time to file post-conviction petitions. Using these standards, we find that defendant failed to state sufficient facts to warrant an extension of time. Therefore, we affirm the trial court's decision.
The trial court, in a bench trial, found defendant guilty of murder and armed robbery. We affirmed the conviction and sentence. People v. Faraone, 291 Ill.App.3d 1115, 240 Ill.Dec. 282, 716 N.E.2d 876 (1997) (unpublished order under Supreme Court Rule 23). Our supreme court denied defendant's petition for leave to appeal on February 4, 1998.
By letter dated February 9, 1998, defendant's attorney informed him of the denial of the petition for leave to appeal. The attorney added that he was "reviewing the matter to determine whether there [was] a basis to proceed with a Post-Conviction Petition."
On September 10, 1998, defendant filed his motion for extension of time to file a postconviction petition. He alleged that, after he received his attorney's letter, he tried repeatedly to contact his attorney to discuss the postconviction petition. His attorney did not respond to the attempted contacts, so the attorney never told defendant that he had not filed the petition.
The trial court denied the motion for extension of time. Defendant filed this appeal pursuant to Supreme Court Rule 651(a). 134 Ill.2d R. 651(a).
Under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 1998)), a defendant must file his post-conviction petition within six months of the denial of his petition for leave to appeal his 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 1998). Defendant here filed his motion for extension of time more than seven months after our supreme court denied his petition for leave to appeal.
The parties note that appellate court decisions conflict on the applicable standard for reviewing decisions on motions for extensions of time to file postconviction petitions. The court applied de novo review in People v. Perry, 293 Ill.App.3d 113, 115, 227 Ill.Dec. 613, 687 N.E.2d 1095 (1997), but used a manifest error standard in People v. Mitchell, 296 Ill.App.3d 930, 933, 231 Ill.Dec. 373, 696 N.E.2d 365 (1998). Our supreme court, in People v. Caballero, 179 Ill.2d 205, 214, 227 Ill.Dec. 965, 688 N.E.2d 658 (1997), found that People v. Silagy, 116 Ill.2d 357, 365, 107 Ill.Dec. 677, 507 N.E.2d 830 (1987), established a manifest error standard of review for all aspects of postconviction proceedings. But the court subsequently, in Coleman, 183 Ill.2d at 383-84, 233 Ill.Dec. 789, 701 N.E.2d 1063, overruled that part of the holding of Silagy and established different standards of review for the several stages of postconviction proceedings.
The Coleman court observed that prior cases applied the deferential manifest error standard of review because "the post-conviction trial judge is able to observe and hear the witnesses at the evidentiary hearing and, therefore, occupies a []position of advantage in a search for the truth[] which []is infinitely superior to that of a tribunal where the sole guide is the printed record[]." Coleman, 183 Ill.2d at 384,233 Ill.Dec. 789,701 N.E.2d 1063. Because some stages of postconviction proceedings require no testimony, the court found that decisions at those stages do not warrant deferential review.
In People v. McClain, 292 Ill.App.3d 185, 188, 226 Ill.Dec. 66, 684 N.E.2d 1062 (1997), the appellate court held that the burden on a defendant moving for an extension of time to file a ...
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...Ill.Dec. 198, 723 N.E.2d 230. The closest the First District has come to a resolution of this issue is People v. Faraone, 316 Ill.App.3d 897, 250 Ill.Dec. 355, 738 N.E.2d 571 (2000), where the court held a motion for an extension of time to file a late post-conviction petition did not satis......
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...determinations were improperly made. Coleman, 183 Ill.2d at 385, 233 Ill.Dec. 789, 701 N.E.2d 1063; People v. Faraone, 316 Ill.App.3d 897, 899-900, 250 Ill.Dec. 355, 738 N.E.2d 571 (2000). More specifically, a comprehensive review of the evidence to determine the legal significance of the n......