People v. Harrison
| Decision Date | 16 September 1975 |
| Docket Number | No. 61237,61237 |
| Citation | 32 Ill.App.3d 641,336 N.E.2d 143 |
| Parties | PEOPLE of the State of Illinois, Respondent-Appellee, v. Alonzo HARRISON a/k/a Alphonzo Harrison, Petitioner-Appellant. |
| Court | United States Appellate Court of Illinois |
Paul Bradley, State Appellate Defender, Chicago, for petitioner-appellant.
Bernard Carey, State's Atty., Cook County, for respondent-appellee.
Before DOWNING, P.J., and STAMOS and LEIGHTON, JJ.
Alonzo Harrison a/k/a Alphonzo Harrison, petitioner, was convicted on March 12, 1959, upon his plea of guilty of the crime of assault with attempt to commit robbery. He was sentenced to a term of one to three years. Petitioner did not appeal that conviction.
On August 26, 1974, petitioner filed a Pro se post-conviction petition in which he alleged that his plea of guilty was involuntary in that it was based upon an unfulfilled promise by appointed counsel and the Assistant State's Attorney that if he entered a plea of guilty he would receive probation or a suspended sentence. Attached to the petition was petitioner's affidavit in which he set out the factual circumstances underlying this allegation. The State filed a motion to dismiss the Pro se post-conviction petition on the ground that it was barred by the five year statute of limitations. An additional affidavit was subsequently filed in which petitioner stated that he had not previously filed a post-conviction petition and that he was not advised that he could appeal and knew nothing about appellate procedures. On October 22, 1974, upon motion of the State, the trial court dismissed the Pro se post-conviction petition without an evidentiary hearing.
Petitioner wished to appeal the dismissal of his Pro se post-conviction petition and the State Appellate Defender was appointed to represent him. After examining the record, the State Appellate Defender has filed a motion in this court for leave to withdraw as appellate counsel. The motion is supported by a brief pursuant to the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. The brief states that the only possible argument which could be raised on appeal is that the trial court erred in granting the State's motion to dismiss the Pro se post-conviction petition without an evidentiary hearing. The brief concludes that an appeal on this issue would be wholly frivolous and without merit. Petitioner was mailed copies of the motion and brief on May 27, 1975. He was informed that he had until July 26, 1975, to file any additional points he might choose in support of his appeal. Petitioner has not responded.
However, after filing a notice of appeal but prior to this court's letter, petitioner filed a 'Petition in Error or Docketing Statement.' We have chosen to consider this document as a response to this court.
The motion and brief of the State Appellate Defender state that the only possible argument which could be raised on appeal is that petitioner's Pro se post-conviction petition was improperly dismissed by the trial court without an evidentiary hearing. Petitioner was originally convicted on March 12, 1959. At that time the Illinois Post-Conviction Hearing Act provided for a five year statute of limitations unless facts were alleged showing that the delay was not due to petitioner's culpable negligence (Ill.Rev.Stat.1959, ch. 38, par. 826). This section of the Act providing for a five year statute of limitations was amended in 1965 to extend the period to twenty years (Ill.Rev.Stat.1965, ch. 38, par. 122--1). However, this amendment does not apply retroactively. People v. Thomas, 45 Ill.2d 68, 256 N.E.2d 794; People v. Reed, 42 Ill.2d 169, 246 N.E.2d 238.
In the case at bar, petitioner did not file his post-conviction petition until 15 years after his conviction. Petitioner clearly did not file his petition within the applicable statute of limitations and his affidavit stating that he was not advised of his right to appeal, did not know that he could appeal and had no money for an attorney was insufficient to demonstrate a lack of culpable negligence. (People v. Diefenbaugh, 40 Ill.2d 73,...
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People v. Walker
...to retain legal counsel to pursue a petition is insufficient to establish a lack of culpable negligence); People v. Harrison, 32 Ill.App.3d 641, 643, 336 N.E.2d 143, 145 (1975) (same). The law expects defendants wishing to obtain post-conviction relief to familiarize themselves with the Act......
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...has the burden to show that the delay in filing a post-conviction petition was not due to his culpable negligence. People v. Harrison (1975), 32 Ill.App.3d 641, 336 N.E.2d 143. In People v. Reed (1969), 42 Ill.2d 169, 246 N.E.2d 238, the Illinois Supreme Court held that the petition was not......
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...least in part, to his own mental illness. People v. Montgomery, 45 Ill.2d 94, 256 N.E.2d 802 (1970). See also People v. Harrison, 32 Ill.App.3d 641, 336 N.E.2d 143 (1st Dist.1975). Although we are not aware of the grounds Petitioner might raise to show a lack of culpable negligence in faili......
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...of the timely disposition of his direct appeal, he need only have alleged facts justifying the delay in filing. People v. Harrison, 32 Ill.App.3d 641, 336 N.E.2d 143 (1975). In the present case, defendant has alleged Moreover, it appears that the flat three-year statute of limitations that ......