People v. Lopez

• Decision Date: 06 December 2000
• Docket Number: No. 1-99-1653.,1-99-1653.
• Citation: 740 N.E.2d 1179,317 Ill. App.3d 1047,251 Ill.Dec. 608
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Allen LOPEZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

740 N.E.2d 1179

317 Ill. App.3d 1047

251 Ill.Dec. 608

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Allen LOPEZ, Defendant-Appellant.

No. 1-99-1653.

Appellate Court of Illinois, First District, Third Division.

December 6, 2000.

Rita A. Fry, Public Defender of Cook County, Chicago (Denise R. Avant, of counsel), for Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Janet Powers Doyle, Sharese Shields, Alan J. Spellberg and Michele Grimaldi Stein, of counsel), for Appellee.

Justice WOLFSON delivered the opinion of the court:

The other appellate districts are evenly divided on the issue we address in this case: Can a trial court summarily dismiss a post-conviction petition where it finds the defendant failed to allege sufficient facts showing an untimely filing was not due to the defendant's culpable negligence? We join those courts that have held the answer is yes.

Following a jury trial, defendant Allen Lopez was convicted of first degree murder and sentenced to 32 years in prison. We affirmed his conviction and sentence on direct appeal. People v. Lopez, No. 1-94-2736 (1996) (unpublished order pursuant to Supreme Court Rule 23). Defendant subsequently filed a pro se petition for post-conviction relief which the trial court summarily dismissed after finding it was not filed within the statutorily prescribed time period. In fact, it was eighteen months late.

On appeal, defendant concedes his petition was not timely filed, but contends the trial court erred in dismissing his petition since he had alleged the late filing was not due to his culpable negligence.

The threshold inquiry is whether a post-conviction petition can be summarily dismissed solely on the ground of untimeliness as it was in this case. This question has not yet been answered by the First District.

The conflict among the districts derives from different interpretations of the supreme court's decision in People v. Wright, 189 Ill.2d 1, 243 Ill.Dec. 198, 723 N.E.2d 230 (1999), which held the time provision in section 122-1(c) of the Post Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)) operates as a statute of limitations rather than a jurisdictional bar.

The Act provides a three-stage process for adjudication of post-conviction petitions. People v. Frieberg, 305 Ill. App.3d 840, 846, 238 Ill.Dec. 964, 713 N.E.2d 210 (1999). During the first stage the trial court determines, without any input from the State or further pleadings from the defendant, whether the petition is frivolous or patently without merit. Frieberg, 305 Ill.App.3d at 847, 238 Ill.Dec. 964,713 N.E.2d 210. If the petition survives this stage, the court may appoint counsel to represent an indigent defendant, and counsel will have an opportunity to amend the petition. Frieberg, 305 Ill.App.3d at 847,238 Ill.Dec. 964,713 N.E.2d 210. The State then may file a motion to dismiss the petition. Frieberg, 305 Ill.App.3d at 847,238 Ill.Dec. 964,713 N.E.2d 210. If the State does not file a motion to dismiss or if the trial court denies the State's motion, the trial court will proceed to the third stage and conduct an evidentiary hearing on the merits of the petition. Frieberg, 305 Ill.App.3d at 847,238 Ill.Dec. 964,713 N.E.2d 210.

Section 122-1(c) of the Act sets out a time limitation for post-conviction relief. This section states, in pertinent part:

"(c) No proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or more than 45 days after the defendant files his or her brief in the appeal of the sentence before the Illinois Supreme Court * * * or 3 years from the date of conviction, whichever is sooner, 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).

In Wright, the defendant's petition for post-conviction relief survived the first stage of the proceedings. At the second stage, the trial court granted the State's motion to dismiss the petition. On appeal, the defendant contended the trial court erred in granting the State's motion. The State responded, in part, by claiming defendant's petition was untimely and the trial court therefore lacked jurisdiction over the matter. The supreme court disagreed:

"A review of the time limitation found in section 122-1 reveals that it has more in common with statutes of limitations than it does with statutes conferring jurisdiction. The plain language of section 122-1 demonstrates that time is not an integral part of the remedy. In fact, if a petitioner can demonstrate that the late filing was not due to his culpable negligence, there is no time limit within which a petitioner must file his post conviction petition. [Citation.] A safety valve that allows an unlimited time in which to file a post conviction petition cannot be reconciled with a concept that makes time a condition of the liability or with a position that time is an inherent element of the right created. As a lack of culpable negligence permits the filing of a post-conviction petition regardless of the length of time that has passed, a lack of culpable negligence—not time— is the inherent element." Wright, 189 Ill.2d at 8, 243 Ill.Dec. 198, 723 N.E.2d 230.

Because the State did not raise the statute of limitations argument in its motion to dismiss at the second stage, the supreme court found it had waived the issue for purposes of appeal. Wright, 189 Ill.2d at 11, 243 Ill.Dec. 198, 723 N.E.2d 230. However, the court went on to say:

"In reaching this conclusion, we caution that we are not limiting the trial court's ability, during the court's initial review of noncapital petitions [citation] to dismiss the petition as untimely. The import of our decision is simply that matters relating to the timeliness of a defendant's petition should first be considered in the trial court, either upon a motion by the State or pursuant to the duty imposed upon the trial court by section 122-2.1(a)(2)." Wright, 189 Ill.2d at 11-12, 243 Ill.Dec. 198, 723 N.E.2d 230.

Section 122-2.1(a)(2) of the Act is the statutory provision for summary dismissal at the first stage of the proceedings. 725 ILCS 5/122-2.1(a)(2) (West 1998).

Despite this language, the Fifth District has held the trial court cannot dismiss a post-conviction petition as untimely during first stage proceedings. People v. Whitford, 314 Ill.App.3d 335, 247 Ill.Dec. 594,732 N.E.2d 649 (2000); People v. Hill, 313 Ill.App.3d 362, 246 Ill.Dec. 148, 729 N.E.2d 521 (2000); People v. Johnson, 312 Ill. App.3d 532, 245 Ill.Dec. 324, 727 N.E.2d 1058 (2000),appeal allowed 189 Ill.2d 694, 248 Ill.Dec. 605, 734 N.E.2d 896 (2000); People v. McCain, 312 Ill.App.3d 529, 531, 245 Ill.Dec. 130, 727 N.E.2d 383 (2000),appeal allowed 189 Ill.2d 696, 248 Ill.Dec. 605, 734 N.E.2d 896 (2000). The Fifth District relied on the supreme court's characterization of the Act's time provision as a statute of limitations, finding untimeliness is an affirmative defense that can be considered only if raised by the State. In Johnson, the court said:

"It follows that those who initially review pro se petitions to determine whether they are frivolous or patently without merit should refrain from summary dismissal based solely upon a tardy filing date. The question of the petition's untimeliness should await a responsive pleading from the State." Johnson, 312 Ill.App.3d at 533, 245 Ill. Dec. 324, 727 N.E.2d 1058.

It appears that the Third District lines up with the Fifth District. In People v. Arias, 309 Ill.App.3d 595, 597, 243 Ill.Dec. 91, 722 N.E.2d 1160 (1999), the court took Wright to mean the failure of the State to raise timeliness of the petition at the first stage waives the issue, since the time limitations in the Act should be considered an affirmative defense. Wright, of course, said no such thing. It said the trial court is free to consider untimeliness of the petition during its initial review, "either upon a motion by the State or pursuant to the duty imposed upon the trial court by section 122-2.1(a)(2)." (Emphasis Added). Wright, 189 Ill.2d at 11-12, 243 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 satisfy the defendant's burden of showing absence of culpable negligence. Faraone, 316 Ill.App.3d 897, 250 Ill.Dec. 355, 738 N.E.2d 571.

The Second and Fourth Districts have held the trial court can summarily dismiss a defendant's post-conviction petition where it finds the defendant failed to allege sufficient facts showing the untimely filing was not due to defendant's culpable negligence. People v. Carroll, 317 Ill. App.3d 408, 251 Ill.Dec. 83, 739 N.E.2d 1016 (2000); People v. Harden, 316 Ill. App.3d 695, 249 Ill.Dec. 916, 737 N.E.2d 306 (2000); People v. Boclair, 312 Ill. App.3d 346, 244 Ill.Dec. 855, 726 N.E.2d 1166 (2000), appeal allowed 189 Ill.2d 690, 248 Ill.Dec. 604, 734 N.E.2d 895 (2000); People v. Huffman, 315 Ill.App.3d 611, 248 Ill.Dec. 551, 734 N.E.2d 479 (2000).

In Carroll, the Fourth District rejected defendant's contention that the trial court may not dismiss a post-conviction petition as untimely during first stage review, and went on to find "it is improper for a trial court to entertain argument or otherwise receive input from the State during the first phase of proceedings on a post-conviction petition." Carroll, 317 Ill.App.3d at 409, 251 Ill.Dec. 83, 739 N.E.2d 1016. In Harden, the court found Wright made it "abundantly clear" that the trial court may dismiss a post-conviction petition as untimely during its initial review. Harden, 316 Ill.App.3d at 697, 249 Ill.Dec. 916, 737 N.E.2d 306. Boclair held the State did not...