People v. Walker

• Decision Date: 15 May 2002
• Docket Number: No. 1-00-0948.,1-00-0948.
• Citation: 331 Ill. App.3d 335,265 Ill.Dec. 387,772 N.E.2d 758
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George WALKER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

772 N.E.2d 758

331 Ill. App.3d 335

265 Ill.Dec. 387

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George WALKER, Defendant-Appellant.

No. 1-00-0948.

Appellate Court of Illinois, First District, Third Division.

May 15, 2002.

Rehearing Denied June 20, 2002.

As Amended Upon Denial of Rehearing June 26, 2002.

Michael Pelletier, State Appellate Defender, Christopher W. Buckley, Assistant Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney, County of Cook, Chicago (Renee Goldfarb, Alan J. Spellberg and Susan M. Caraher, of counsel), for Appellee.

MODIFIED ON DENIAL OF REHEARING

Justice CERDA delivered the opinion of the court:

Defendant, George Walker, whose convictions and sentences for aggravated criminal sexual assault were affirmed on direct appeal, appeals the order of the circuit court summarily dismissing his petition for relief filed under the Post Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1996)) as untimely. In his petition, defendant asserts various claims of ineffective assistance of trial counsel as well as a myriad of errors committed by the circuit court during the course of the trial proceedings. Defendant abandons those claims on appeal and, instead, challenges for the first time the constitutionality of his extended term and consecutive sentences entered on his criminal convictions in light of the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Because we find that Apprendi does not apply retroactively under the facts of this case, we affirm.

BACKGROUND

In separate jury trials held in late 1989, 88-CR-6383 and 88-CR-6384, defendant was convicted of one count each of aggravated criminal sexual assault (Ill.Rev.Stat. 1989, ch. 38, par. 12-14(c)). In case 88-CR-6384, defendant received an extended-term sentence of 60 years in prison pursuant to section 5-8-2(a) of the Unified Code of Corrections (Code) (Ill.Rev.Stat.1990, ch. 38, par. 1005-8-2(a)) upon the sentencing court's finding under section 5-5-3.2(b)(2) of the Code (Ill.Rev.Stat.1990, ch. 38, par. 1005-5-3.2(b)(2)) that defendant's criminal conduct was exceptionally brutal or heinous indicative of wanton cruelty. On direct appeal to this court, defendant's conviction and sentence were affirmed in an unpublished order (People v. Walker, No-89-2919 (March 31, 1995) (unpublished order pursuant to Supreme Court Rule 23)), and defendant thereafter did not seek further review.

Following his conviction in case 88-C6383, defendant was sentenced to an extended term of 60 years imprisonment pursuant to sections 5-8-2(a) and 5-5-3.2(b)(1) of the Code (Ill.Rev.Stat.1991, ch. 38, par. XXXX-XX-X.2(b)(l)) based upon his prior conviction in case 88-CR-6384. As provided by section 5-8-1(b) of the Code (Ill.Rev.Stat.1991, ch. 38, par. 1005-8-4(b)), defendant's sentence was ordered to run consecutively to the sentence imposed in his prior case. Defendant's conviction and sentences were subsequently affirmed by this court on direct appeal (People v. Walker, 253 Ill.App.3d 93, 192 Ill.Dec. 1, 624 N.E.2d 1353 (1993)), and defendant did not seek further review.

After exhausting his direct appeals, defendant petitioned pro se for post conviction relief in both cases on April 29, 1997. In his petitions, defendant raised numerous issues concerning the effectiveness of the legal representation he received and a myriad of rulings made by the circuit court during the course of his respective prosecutions. At some point thereafter, the State moved to dismiss defendant's petitions, contending they were time-barred under section 122-1 of the Act or, in the alternative, that the claims raised therein fail to show that a substantial constitutional violation occurred at either of defendant's trials.

The circuit court considered defendants' petitions at a hearing held on February 8, 2000. Upon consideration of the parties' respective positions, the circuit court summarily dismissed the petitions as time barred under the Act.

Defendant's timely appeal followed.

ANALYSIS

A proceeding under the Post Conviction Hearing Act is not an appeal of the underlying conviction but, rather, represents a collateral attack on the trial court proceedings in which the defendant attempts to establish constitutional violations that have not been, and could not have been, previously adjudicated. People v. Henderson, 171 Ill.2d 124, 131, 215 Ill. Dec. 147, 662 N.E.2d 1287, 1292 (1996). Section 122-1 of the Act sets forth the time limitations in which a defendant must seek post-conviction relief. The version of that provision in effect at the time defendant filed his petitions¹ reads in relevant part:

"No proceedings under this Article shall be commenced more that 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 (of 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 the delay was not due to his or her culpable negligence." 725 ILCS 5/122-1 (West 1996).

A circuit court's dismissal of a post-conviction petition without an evidentiary hearing is reviewed de novo. People v. Coleman, 183 Ill.2d 366, 388-89, 233 Ill. Dec. 789, 701 N.E.2d 1063, 1075 (1998).

Here, the three-year limitations period set forth in section 122-1 governs the time in which defendant was required to petition for relief under the Act. Defendant's conviction in case 88-CR-6384 became final on October 11, 1989, and his appeal from that matter was decided by this court on March 31, 1995. In case 88-CR-6383, defendant's conviction was final on May 16, 1990, and resolution of defendant's appeal by this court occurred on September 7, 1993.² Applying the applicable limitations period, defendant's respective post-conviction petitions were due no later than October 11, 1992, and May 16, 1993. Defendant's petitions were not filed until April 29, 1997, well beyond the applicable limitation period, and are therefore untimely.

Nonetheless, the Act enables defendant, who expressly concedes the untimeliness of his petitions, to maintain his request for relief provided he can show that the delay in filing was not due to his culpable negligence. 725 ILCS 5/122-l(c) (West 1998). In such instances, the defendant must support his assertion of no culpable negligence with allegations of specific fact showing why his tardiness should be excused. See Lopez, 317 Ill.App.3d at 1053, 251 Ill.Dec.; 608, 740 N.E.2d at 1184; see also People v. Van Hee, 305 Ill.App.3d 333, 336, 238 Ill.Dec. 641, 712 N.E.2d 363, 366 (1999) ("[t]o show the absence of culpable negligence, a petitioner must allege facts justifying the delay"); People v. McClain, 292 Ill.App.3d 185, 188, 226 Ill. Dec. 66, 684 N.E.2d 1062, 1064 (1997), overruled in part and on different grounds by People v. Woods, 193 Ill.2d 483, 250 Ill.Dec. 730, 739 N.E.2d 493 (2000) (to warrant an evidentiary hearing on the issue of whether the delay in filing for post-conviction relief was occasioned by culpable negligence, the defendant "must make a `substantial showing' by alleging facts demonstrating that to be the case"). Vague, conclusory allegations will not suffice. Lopez, 317 Ill.App.3d at 1054, 251 Ill.Dec. 608, 740 N.E.2d at 1184. The standard of review applied by this court when reviewing a circuit court's determination regarding a defendant's lack of culpable negligence was recently clarified by our supreme court in People v. Rissley, No. 82536 ___, Ill.2d ___, ___ Ill.Dec.___, ___ N.E.2d ___, 2001 WL 263090 (March 15, 2001). There, the court noted that, ordinarily, the circuit court's resolution of whether delay was occasioned by a defendant's culpable negligence will be disturbed on review only if that determination is manifestly erroneous. Rissley, slip op. at 6,___ Ill.2d at ___, ___ Ill.Dec. ___, ___ N.E.2d at, 2001 WL 263090. However, according to the court, when no evidentiary hearing is held or no fact-finding is conducted by the circuit court, the determination regarding culpable negligence turns solely on the legal sufficiency of the defendant's pleadings. Rissley, slip op. at 6,___ Ill.2d at ___, ___ Ill.Dec. ___, ___ N.E.2d at ___, 2001 WL 263090. The relevant inquiry thus becomes whether, taking the defendant's assertions concerning his lack of culpable negligence as true, the circuit court reached the correct legal conclusion. Rissley, slip op. at 6, — Ill.2d at ___, ___ Ill.Dec. ___, ___ N.E.2d at ___, 2001 WL 263090. Hence, the applicable standard of review is denovo. Rissley, slip op. at 6-7, ___ Ill.2d at ___, ___ Ill.Dec. ___, ___ N.E.2d at ___, 2001 WL 263090; see also People v. Perry, 293 Ill.App.3d 113, 227 Ill.Dec. 613, 687 N.E.2d 1095 (1997),overruled in part and on different grounds by People v. Woods, 193 Ill.2d 483, 250 Ill.Dec. 730, 739 N.E.2d 493 (2000). Accordingly, we will accept all well-pleaded factual allegations of defendant's petitions as true and determine whether those assertions are sufficient as a matter of law to demonstrate an absence of culpable negligence on defendant's part.

In an apparent attempt to explain his delay, defendant asserts in his petitions that he had been "abandoned" by his counsel following this court's resolution of his respective appeals, that he had insufficient personal funds to secure new counsel to prosecute a post-conviction petition on his behalf, and that while incarcerated, "the prison went on a two year lock-down at which time meaningful legal services were not provided and [an] inmate paralegal was forbidden to interview or to meet with [him] to formulate a defense and file such necessary papers with the...