People v. Gerow

Decision Date11 February 2009
Docket NumberNo. 1-07-3018.,1-07-3018.
Citation903 N.E.2d 770
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Daniel GEROW, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Richard A. Devine, State's Atty., Cook County, James E. Fitzgerald, Allan J. Spellberg, Anthony M. O'Brien, Chicago, for Plaintiff-Appellant.

Patricia Unsinn, State Appellate Defender, Katherine M. Donahoe, Asst. Appellate Defender, Chicago, for Defendant-Appellee.

Presiding Justice MURPHY delivered the opinion of the court:

On April 5, 2007, defendant filed a postconviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)), requesting a three-year reduction in his sentence in accordance with People v. Whitfield, 217 Ill.2d 177, 298 Ill.Dec. 545, 840 N.E.2d 658 (2005). The petition was filed 5 years after defendant's conviction and 27 months after the 3-year timely filing window closed for postconviction petitions established by section 122-1(c) of the Act. 725 ILCS 5/122-1(c) (West 2004). On September 28, 2007, the circuit court denied the State's motion to dismiss and granted defendant's petition, modifying his sentence pursuant to Whitfield. The State did not have the opportunity to answer the petition and did not file a motion to reconsider. The State filed a certificate of impairment and appeals the trial court's order.


On December 18, 2001, defendant entered a plea agreement on charges of predatory criminal sexual assault of a child under section 12-14.1 of the Criminal Code of 1961. 720 ILCS 5/12-14.1(a)(1) (West 2000). In exchange for the guilty plea, defendant received a 10-year sentence in the Illinois Department of Corrections. At the time the plea bargain was entered, the defendant had not been properly admonished about the three-year mandatory supervised release (MSR) term that would be statutorily appended to the sentence. At the time the plea agreement was entered, defendant was serving a 46-month federal sentence in federal prison. On January 18, 2005, 37 months after the Illinois sentencing, defendant was released from federal custody and transferred to the Illinois Department of Corrections to complete the Illinois sentence. Defendant alleges that it was at the time of this transfer that he first learned about the additional MSR term to be added to his sentence.

On April 5, 2007, more than 26 months after learning about the MSR term and approximately 5 years after entering the plea agreement, defendant filed the postconviction petition. Defendant asserted that the decision in Whitfield required a 3-year reduction of his 10-year sentence to account for the MSR term that he was not admonished about requesting the sentence reduction. Defendant did not provide any explanation for his delay in filing his petition. Defendant attached a copy of the transcript of his plea and a copy of the Whitfield decision. No affidavits were attached to verify the petition or supply facts to excuse the delay in filing.

The petition survived the first-stage frivolity assessment and was considered by the trial court at the second stage. In response to defendant's petition, the State filed a motion to dismiss arguing, inter alia, that defendant was culpably negligent for failing to file his petition within three years of sentencing. On August 28, 2007, the State and counsel for defendant presented argument to the court on the State's motion to dismiss. The trial court took the matter under advisement to consider the parties' arguments and case law.

On September 28, 2007, the trial court stated that it had looked at the State's timeliness argument and thought about the issue. The trial court then stated that it might be an issue ripe for an appeal and then concluded that, as it was clear that it had failed to admonish defendant of the MSR period, the spirit of the finding in Whitfield compelled a reduction of defendant's sentence by three years. The State did not file a motion to reconsider. On October 12, 2007, the State filed a certificate of impairment and notice of appeal.

A. Post-Conviction Hearing Act and the Standard of Review

Under the Act, a petition must be verified by affidavit and filed within three years from the date of conviction. 725 ILCS 5/122-1(b), (c) (West 2004). If the petition is filed later than three years from the date of conviction, the petitioner must allege facts showing that the delay was not due to his culpable negligence. 725 ILCS 5/122-1(c) (West 2004). The petition then must set forth how the petitioner's constitutional rights were violated and attach affidavits, records or other supporting evidence. 725 ILCS 5/122-2 (West 2004).

In cases where the death penalty is not involved, adjudication of a postconviction petition follows a three-stage process. People v. Gaultney, 174 Ill.2d 410, 418, 221 Ill.Dec. 195, 675 N.E.2d 102 (1996). At the first stage of this process, the court is required to review the petition within 90 days of filing and docketing of the petition and determine whether it is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2004). The circuit court's review at this first stage is independent, as the Act does not permit any further pleadings from the defendant, or any motions, responsive pleadings, or other input from the State. Gaultney, 174 Ill.2d at 418, 221 Ill.Dec. 195, 675 N.E.2d 102.

If the petition survives the first stage, the defendant moves to the second stage. At the second stage, counsel must consult with the defendant, examine the record, and amend the petition, if necessary, to ensure that the defendant's contentions are adequately presented. People v. Pendleton, 223 Ill.2d 458, 471-72, 308 Ill.Dec. 434, 861 N.E.2d 999 (2006). Within 30 days of the docketing of an order allowing the petition to proceed, the State may move to dismiss the petition pending before the trial court. Pendleton, 223 Ill.2d at 472, 308 Ill.Dec. 434, 861 N.E.2d 999. At the second stage, "all well-pleaded facts that are not positively rebutted by the trial record are to be taken as true." Pendleton, 223 Ill.2d at 473, 308 Ill.Dec. 434, 861 N.E.2d 999. If a motion to dismiss is denied, the State must file an answer to the petition within 20 days after denial. 725 ILCS 5/122-5 (West 2004). In the third stage, the trial court then may receive evidentiary proof via affidavits, depositions, testimony, or other evidence, and may order the petitioner brought before the court. 725 ILCS 5/122-6 (West 2004).

On appeal, the standard by which second-stage dismissals of postconviction petitions are reviewed is de novo. Whitfield, 217 Ill.2d at 182, 298 Ill.Dec. 545, 840 N.E.2d 658. This case involves a petition at the second stage. 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, 227 Ill.Dec. 965, 688 N.E.2d 658 (1997). However, 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, 273 Ill. Dec. 623, 789 N.E.2d 797 (2003). Here, the trial court made no findings of fact regarding the timeliness issue, and thus our review is de novo. People v. Ramirez, 361 Ill.App.3d 450, 452, 297 Ill.Dec. 331, 837 N.E.2d 111 (2005).

B. Timeliness Issue

The parties agree that defendant was not properly admonished about his MSR term at the time of sentencing. A defendant who has not been admonished about MSR terms before entering a plea bargain has suffered a substantial violation of constitutional rights because he does not receive the benefit of his plea bargain. Whitfield, 217 Ill.2d at 201, 298 Ill.Dec. 545, 840 N.E.2d 658. This violation can entitle a defendant to postconviction relief. Whitfield, 217 Ill.2d at 202, 298 Ill.Dec. 545, 840 N.E.2d 658. However, the question of remedy and whether defendant was admonished is clear and not at issue here. The question on appeal is whether defendant's delay after learning about the violation of his constitutional rights requires dismissal of the petition.

As noted above, if the three-year window for filing a postconviction petition expires, a defendant must allege facts that show the late filing is not due to his culpable negligence. 725 ILCS 5/122-1(c) (West 2004). If the defendant fails to properly allege such facts and the State moves to dismiss the postconviction petition at the second stage, the trial court is directed to dismiss the petition as untimely barring amendment by the defendant. People v. Perkins, 229 Ill.2d 34, 43, 321 Ill.Dec. 676, 890 N.E.2d 398 (2008). Here, defendant filed the postconviction petition over five years after reaching the plea agreement and more than two years after the three-year filing period. Therefore, the State concludes that to withstand dismissal pursuant to the Act, defendant must allege facts showing that his delay in filing a petition for postconviction relief is not due to his culpable negligence.

Defendant first argues that the State procedurally forfeited the claim that the 27-month delay constituted culpable negligence. Defendant claims that the State cannot raise the timeliness issue here on appeal because it was not raised below at the trial court. However, defendant also claims that in rendering its decision after continuing the matter to consider all arguments, the trial court specifically noted and rejected the timeliness issue. We agree with the State that its arguments on appeal were sufficiently raised below. In its motion to dismiss the defendant's postconviction petition, the State addressed the timeliness issue specifically in its final argument titled:

"The Rule Announced in Whitfield does not Apply Retroactively Where This Case Was not on Collateral Review at the Time of the Decision and Where,...

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