People v. Van Hee

• Decision Date: 08 June 1999
• Docket Number: No. 2-98-0544.,2-98-0544.
• Citation: 238 Ill.Dec. 641,712 N.E.2d 363,305 Ill. App.3d 333
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth VAN HEE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

712 N.E.2d 363

305 Ill. App.3d 333

238 Ill.Dec. 641

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth VAN HEE, Defendant-Appellant.

No. 2-98-0544.

Appellate Court of Illinois, Second District.

June 8, 1999.

G. Joseph Weller, Deputy Defender, Darren E. Miller (Court-appointed), Office of the State Appellate Defender, Elgin, for Kenneth Van Hee.

Michael J. Waller, Lake County State's Attorney, Waukegan, Martin Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Martha M. Gillis, Evanston, for the People.

Presiding Justice BOWMAN delivered the opinion of the court:

Defendant, Kenneth Van Hee, was indicted on four counts of aggravated criminal sexual assault (720 ILCS 5/12-14(b)(1) (West 1994)). On January 23, 1995, defendant pleaded guilty to one count of aggravated criminal sexual assault, and the State nol-prossed the remaining counts. The trial court sentenced defendant to 20 years' imprisonment. On February 22, 1995, defendant filed a motion to reconsider sentence. There is no evidence in the record indicating that a hearing was held on the motion or that the trial court made a ruling on it. On March 18, 1998, defendant filed a motion for an extension of time to file a petition for postconviction relief, which the trial court denied. Defendant now appeals the denial of his motion. We affirm.

Preliminarily, defendant argues that he is not "time-barred" from pursuing a petition for postconviction relief because there was no final judgment in this case. Relying on People v. Izquierdo, 262 Ill.App.3d 558, 199 Ill. Dec. 912, 634 N.E.2d 1266 (1994), defendant maintains that his sentence is not final until the trial court rules on his motion to reconsider. He argues that the three-year time frame for filing a petition for postconviction relief has not been triggered because the trial court did not rule on his motion to reconsider.

In response, the State asserts that the trial court properly denied defendant's motion to extend. The State argues that the January 23, 1995, trial court order pronouncing defendant's sentence was a final order and that the limitations period for filing a petition for postconviction relief commenced at that time. Additionally, the State maintains that, although defendant filed a motion to reconsider sentence, he never set this motion for hearing and, therefore, the date of sentencing marked the beginning of the limitations period.

Contrary to defendant's assertion, in criminal cases, a judgment is considered final after defendant has been convicted and sentenced. People v. Woolsey, 139 Ill.2d 157, 161, 151 Ill.Dec. 309, 564 N.E.2d 764 (1990). Defendant's reliance on Izquierdo is misplaced. Unlike the motion to reconsider in this case, in Izquierdo the trial court ruled on defendant's motion to reconsider. Izquierdo, 262 Ill.App.3d at 561, 199 Ill.Dec. 912, 634 N.E.2d 1266. Local Rule 2.01(m) (19th Judicial Cir. Ct. R. 2.01(m) (eff. January 2, 1997)) provides that "[t]he burden of calling for hearing any motion previously filed is on the party making the motion." Thus, pursuant to Rule 2.01(m), defendant carried the burden to call for hearing his motion to reconsider.

Additionally, as the State properly notes, when no ruling has been made on a motion, the motion is presumed to have been abandoned absent circumstances indicating otherwise. People v. Kelley, 237 Ill.App.3d 829, 831, 178 Ill.Dec. 528, 604 N.E.2d 1051 (1992). There is no evidence in the record establishing that the trial court ruled on the motion to reconsider. Absent evidence to the contrary, we may presume that defendant abandoned his motion. The failure to obtain a ruling on a motion does not transform a final order into a nonfinal order. Because the motion was not adjudicated, the January 23, 1995, order entering defendant's guilty plea and sentencing him was a final judgment and marked the beginning of the limitations period for filing a postconviction petition.

Alternatively, defendant argues that if the trial court's order sentencing him constitutes a final order, his motion to extend should be granted because he has alleged facts demonstrating that the delay in filing a postconviction petition was not due to his culpable negligence. He asserts that his delay is excusable because he was denied access to the prison law library during a lockdown. He urges this court to adopt the reasoning in Justice Green's dissent in the fourth district case of People v. McClain, 292 Ill.App.3d 185, 226 Ill.Dec. 66, 684 N.E.2d 1062 (1997) (Green, J., dissenting), and the approach of the third district in People v. Mitchell, 296 Ill.App.3d 930, 231 Ill.Dec. 373, 696 N.E.2d 365 (1998), which recognized that some delay in filing a postconviction petition is excusable in certain instances where the petitioner is denied access to a law library due to a prison lockdown. Defendant also maintains that, during his incarceration, the limitations period for filing a postconviction petition changed. He argues that in light of this change his failure to sort through these "legal complexities" without access to a prison law library does not amount to culpable negligence.

The State replies that defendant has failed to make a substantial showing that the delay in filing his petition was not the result of his culpable negligence. The State relies on McClain as support for the proposition that the denial of access to a prison law library due to a lockdown does not excuse a petitioner's failure to timely file a postconviction petition. Additionally, the State argues that the defendant's mistaken belief as to the applicable limitations period does not abrogate compliance with the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(c) (West 1996)) and constitutes culpable negligence. The State maintains that defendant's petition was untimely under either limitations period.

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 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 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." (Emphasis added.) 725 ILCS 5/122-1(c) (West 1996).

The petitioner carries the burden of establishing that a delay in filing a postconviction petition was not the result of his culpable negligence. Mitchell, 296 Ill.App.3d at 933, 231 Ill.Dec. 373, 696 N.E.2d 365. To show the absence of culpable negligence, a petitioner must allege facts justifying the delay. People v. Bates, 124 Ill.2d 81, 88, 124 Ill.Dec. 407, 529 N.E.2d 227 (1988). The trial court's determination of whether the delay was due to a petitioner's culpable negligence will not be disturbed on review unless it is manifestly erroneous. People v. Caballero, 179 Ill.2d 205, 214, 227 Ill.Dec. 965, 688 N.E.2d 658 (1997).

The affidavit filed with petitioner's motion to extend indicated that defendant possessed little knowledge of the postconviction petition filing procedures. The Centralia Correctional Center had been on lockdown status for the last few months, and inmates were not allowed access to the law library during this time. As a result, defendant was unable to prepare a timely postconviction petition. Defendant averred that he just recently became aware of the three-year limitations period.

As the parties correctly note, there are two competing views in the appellate court on the issue of whether a prison lockdown, which denies a petitioner access to a law library, excuses his delay in filing a timely postconviction petition. In McClain, the fourth district, with Justice Green dissenting, concluded that a pro se petitioner filing a postconviction petition is only required to set forth the "`gist of a meritorious claim'" by pleading sufficient facts demonstrating the deprivation of a constitutional right. McClain, 292 Ill.App.3d at 189-90, 226...