People v. Parham

• Decision Date: 30 January 2001
• Docket Number: No. 2-99-0994.,2-99-0994.
• Citation: 743 N.E.2d 697,318 Ill.App.3d 818,252 Ill.Dec. 829
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Oscar PARHAM, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

743 N.E.2d 697

318 Ill.App.3d 818

252 Ill.Dec. 829

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Oscar PARHAM, Defendant-Appellant.

No. 2-99-0994.

Appellate Court of Illinois, Second District.

January 30, 2001.

Dennis M. Doherty, Chicago, for Oscar Parham.

Michael J. Waller, Lake County State's Attorney, Waukegan, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Paul Benjamin Linton, Northbrook, for the People.

Justice O'MALLEY delivered the opinion of the court:

Defendant, Oscar Parham, presently serving a term of natural life in prison for murder, appeals the trial court's summary dismissal of his petition brought under the PostConviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)). Defendant's direct appeal was unsuccessful, and his first postconviction petition was dismissed without a hearing. We affirm.

BACKGROUND

Following a jury trial, defendant was convicted of two counts of first-degree murder and sentenced to life imprisonment. In the trial court, defendant, by counsel, filed the postconviction petition at issue here. Before the State's right to respond to the petition under the Act was triggered, the trial court filed a written order and opinion dismissing the petition without a hearing because it was "frivolous and patently without merit because not timely filed." The court noted that defendant was convicted eight years before he filed the petition and he did not attempt to demonstrate that the delay in filing was not due to his "culpable negligence." Accordingly, the court found that the petition was untimely under section 122-1(c) of the Act (725 ILCS 5/122-1(c) (West 1998)).

In this timely appeal, defendant argues that the trial court's dismissal of his petition as untimely was erroneous because "limitations is an affirmative defense, not at issue until raised by the [S]tate in a responsive pleading," and that the State waived its timeliness objection by not responding to his petition in the trial court. Defendant's other claims will be dealt with in an unpublished portion of this decision pursuant to Supreme Court Rule 23 (166 Ill.2d R. 23). For the reasons provided below, we affirm the trial court's summary dismissal of defendant's postconviction petition.

ANALYSIS

Section 122-1(c) of the Act provides:

"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 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 more than 45 days after the deadline for the filing of the defendant's brief with the Illinois Supreme Court if no brief is filed) 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).

The petitioner has the burden of establishing that a delay in filing a postconviction petition was not due to his culpable negligence. See People v. Van Hee, 305 Ill. App.3d 333, 336, 238 Ill.Dec. 641, 712 N.E.2d 363 (1999).

Section 122-2.1(a) of the Act requires the trial court to review a petition and file an order within 90 days after the petition is filed and docketed ("initial review"). 725 ILCS 5/122-2.1(a) (West 1998). Section 122-2.1(a)(2) provides that, if the petitioner is under a sentence of imprisonment and the court finds that the petition is frivolous or patently without merit, then the court may enter a written order stating so, supported by findings of fact and conclusions of law. 725 ILCS 5/122-2.1 (a)(2) (West 1998). If the court does not dismiss the petition, then it shall order that the petition be docketed for further consideration. 725 ILCS 5/122-2.1(b) (West 1998). The State must respond within 30 days or such further time as the court may set. 725 ILCS 5/122-5 (West 1998). The State is not permitted to respond to the petition during its initial review by the trial court; at this stage "the circuit court considers the petition independently, without any input from either side." People v. Gaultney, 174 Ill.2d 410, 418, 221 Ill.Dec. 195, 675 N.E.2d 102 (1996). Appellate review of a trial court's summary dismissal of a postconviction petition is de novo. See People v. Coleman, 183 Ill.2d 366, 388, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998).

The trial court dismissed defendant's petition during its initial review, before the State had the opportunity to respond. The trial court based its dismissal partly on its finding that the petition was untimely under section 122-1(c) of the Act. Although it had no occasion to raise a timeliness objection to the petition in the trial court, the State asks us to affirm the trial court's sua sponte finding of untimeliness. Defendant concedes that his petition is untimely, but he contends that the timeliness of his petition is not properly before this court. Defendant argues that the trial court had no authority to dismiss his petition as untimely in the absence of the State's motion to dismiss on that ground and that the State has waived its timeliness objection by not raising it in the trial court. Defendant cites People v. Wright, 189 Ill.2d 1, 243 Ill.Dec. 198, 723 N.E.2d 230 (1999), for the proposition that the time restriction in section 122-1(c) constitutes not a jurisdictional bar but a statute of limitations that the State must affirmatively plead or waive.

The State cites Wright for the opposite conclusion that a trial court has the authority to dismiss a petition as untimely during its initial review despite the fact that the State can never raise a timeliness objection during that initial review. We agree with the State's reading of Wright.

Unlike the petition under review here, the petition in Wright survived the initial review stage, giving the State the opportunity it did not have in this case to respond to the petition. Wright, 189 Ill.2d at 5, 243 Ill.Dec. 198, 723 N.E.2d 230. The State successfully sought to dismiss the petition, but not on timeliness grounds. Wright, 189 Ill.2d at 5, 11, 243 Ill.Dec. 198, 723 N.E.2d 230. On appeal, the defendant did not contend that the petition was timely but instead asserted that the State had waived its timeliness objection by not bringing it before the trial court. Wright, 189 Ill.2d at 10-11, 243 Ill.Dec. 198, 723 N.E.2d 230. The court agreed, holding that the time limit found in section 122-1(c) is a statute of limitations rather than a jurisdictional bar to a court's review of a petition and that the State had waived the timeliness objection by failing to bring it earlier. Wright, 189 Ill.2d at 10, 243 Ill. Dec. 198, 723 N.E.2d 230.

The court continued as follows:

"Here, although the facts support the conclusion that defendant did not file his petition within the time limits found in section 122-1, that section allows a defendant to file a petition outside the limitations period if the late filing is not due to the defendant's culpable negligence. [Citation]. By not raising this issue until the cause was on appeal, the State has effectively precluded defendant from seeking to amend his petition to allege facts demonstrating that the late filing was not caused by his culpable negligence. While we recognize that section 122-1 requires the defendant to allege facts demonstrating a lack of culpable negligence, we do not believe that this requirement allows the State to wait until an appeal to raise an affirmative defense that the defendant may be able to avoid by amending his petition." Wright, 189 Ill.2d at 11,243 Ill.Dec. 198,723 N.E.2d 230.

The court then added this proviso:

"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.

Simple or not, the foregoing Wright analysis prompted a strongly worded special concurrence that foreshadowed the confusion and disagreement that now exist among our appellate districts on how to construe Wright. See Wright, 189 Ill.2d at 19-40, 243 Ill.Dec. 198, 723 N.E.2d 230 (Freeman, J., specially concurring).

The First District held in People v. Lopez, 317 Ill.App.3d 1047, 1052, 740 N.E.2d 1179, 1183, 251 Ill.Dec. 608, 612 (2000), that the trial court may, during its initial review, "summarily dismiss an untimely petition as `frivolous' where the allegations, taken as true, do not show a lack of culpable negligence in failing to file a timely petition."

The Second District noted in People v. Huffman, 315 Ill.App.3d 611, 613, 248 Ill. Dec. 551, 734 N.E.2d 479 (2000), that the plain language of the Act requires the dismissal of an untimely petition unless the defendant alleges facts showing the delay was not occasioned by his culpable negligence.

The Third District in People v. Arias, 309 Ill.App.3d 595, 597, 243 Ill.Dec. 91, 722 N.E.2d 1160 (1999), held that if timeliness is not addressed by the trial court then it cannot be addressed in the appellate court.

The Fourth District in People v. Boclair, 312 Ill.App.3d 346, 350, 244 Ill.Dec. 855, 726 N.E.2d 1166 (2000), leave to appeal granted, 189 Ill.2d 690, 248 Ill.Dec. 604, 734 N.E.2d 895 (2000), held that the appellate court had a responsibility to address the timeliness issue even if the trial court had not. Later, in People v. Harden, 316 Ill.App.3d 695, 697-98, 249 Ill.Dec. 916, 737 N.E.2d 306 (2000), the Fourth District observed that Wright makes it a "abundantly clear" that the trial court may consider sua sponte the time...