2021 IL App (2d) 191031
Ill. App. Ct.2021Background
- In 2009 Nicole Abusharif was convicted of first-degree murder and sentenced to 50 years in prison; her direct appeal was affirmed.
- On December 31, 2017, while incarcerated, she filed a pro se petition under 735 ILCS 5/2-1401(b-5) (added Jan. 1, 2016) seeking resentencing based on evidence she had been a victim of intimate-partner domestic violence related to her participation in the offense.
- Appointed counsel amended the petition and submitted an affidavit in which Abusharif averred she had been physically and emotionally abused by the victim/intimate partner.
- The State moved to dismiss, arguing the petition was untimely under the two-year limitations period in 735 ILCS 5/2-1401(c) (no applicable tolling) and that Abusharif failed to allege that her participation was related to the abuse.
- The trial court granted the State’s motion, finding the petition untimely; the appellate court affirmed, holding Abusharif was not under a legal disability that tolled the limitations period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Abusharif was under a "legal disability" that tolled the 2-year limitations under 2-1401(c) | The State: no legal disability; limitations ran and petition is untimely | Abusharif: she was under a legal disability until 2-1401(b-5) became effective (Jan 1, 2016), so limitations tolled | Court held no; absence of a statute/amendment is not a legal disability and would nullify §2-1401(c)’s limits |
| Whether the mailbox rule made the filing timely | The State: mailbox rule does not apply to §2-1401 petitions | Abusharif: mailbox rule applies to incarcerated filers, so her Dec 31, 2017 mailing was within two years of Jan 1, 2016 | Court did not reach merits because timeliness failed on legal-disability ground |
| Whether the petition and affidavit satisfied §2-1401(b-5)’s substantive elements | The State: affidavit failed to aver that participation was related to domestic abuse | Abusharif: affidavit and amendments sufficiently alleged domestic-violence mitigation connected to conduct | Court did not decide because petition dismissed as untimely |
Key Cases Cited
- People v. Haynes, 192 Ill.2d 437 (2000) (purpose and scope of §2-1401 relief)
- Gibbs v. Madison County Sheriff's Department, 326 Ill. App. 3d 473 (statutory interpretation principles)
- Fisher v. Waldrop, 221 Ill.2d 102 (presumption against absurd or unjust statutory results)
- In re Doe, 301 Ill. App. 3d 123 (legal disability limited to incompetence, mental disorder, or minority)
- In re Adoption of Rayborn, 32 Ill. App. 3d 913 (same)
- Morgan v. People, 16 Ill.2d 374 (same)
- In re Marriage of Vanek, 247 Ill. App. 3d 377 (discussing legal disability in light of federal law change)
- McCarty v. McCarty, 453 U.S. 210 (federal precedent barring action distinguished from mere absence of statute)
- State Farm Fire & Casualty Co. v. Yapejian, 152 Ill.2d 533 (appellate districts' decisions not binding on each other)