THE PEOPLE OF THE STATE OF ILLINOIS, Aрpellee, v. STANLEY BOCLAIR, Appellant. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOE McCAIN, Appellee. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. EARNEST JOHNSON, Appellee.
No. 89388, No. 89471, No. 89534
Supreme Court of Illinois
August 29, 2002
Rehearing denied December 2, 2002
202 Ill. 2d 89
JUSTICE KILBRIDE
The majority‘s decision in this case is contrary to both recent and long-established precedent of this court and, with due respect, is profoundly ill-advised. I therefore dissent from the court‘s denial of rehearing.
JUSTICE FREEMAN joins in this dissent.
THOMAS, J., joined by FITZGERALD, J., also specially concurring.
Joel T. Pelz, Jeffrey T. Shaw and Clark C. Johnson, of Jenner & Block, L.L.C., of Chicago, for appellant.
James E. Ryan, Attorney General, of Springfield, and Robert Haida, State‘s Attorney, of Belleville (Joel D. Bertocchi, Solicitor General, William L. Browers and Anne S. Bagby, Assistant Attorneys General, of Chicago, and Norbert J. Goetten, Stephen E. Norris and Gerry R. Arnold, of the Office of the State‘s Attorneys Appellate Prosecutor, of Mt. Vernon, of counsel), for the People.
Robert Agostinelli, Deputy Defender, and Donna K. Kelly and Thomas A. Karalis, Assistant Defenders, of the Office of the State Appellate Defender, of Ottawa, for appellee.
James E. Ryan, Attorney General, of Springfield, and Jeffrey Farris, State‘s Attorney, of Cairo (Joel D. Bertocchi, Solicitor General, William L. Browers and Anne S. Bagby, Assistant Attorneys General, of Chicago, and Norbert J. Goetten, Stephen E. Norris and Gerry R. Arnold, of the Office of the State‘s Attorneys Appellate Prosecutor, of Mt. Vernon, of counsel), for the People.
JUSTICE KILBRIDE delivered the opinion of the court:
The defendants in these three consolidated cases, Stanley Boclair, Joe McCain, and Earnest Johnson, were separately convicted of various unrelated crimes and are currently incarcerated. Their convictions were affirmed on direct review. Subsequently, each defendant filed a petition for post-conviction relief. The circuit court summarily dismissed each post-conviction petition. All three defendants appealed.
In Boclair, 312 Ill. App. 3d 346, the Fourth District affirmed the dismissal. In McCain, 312 Ill. App. 3d 529, the Fifth District reversed and held that the circuit court should not dismiss a petition as untimely or on waiver or res judicata grounds at the first stage of a post-conviction proceeding. Similarly, in Johnson, 312 Ill. App. 3d 532, the Fifth District reversed and held that the circuit court should not dismiss a petition as untimely without first providing the State with an opportunity to waive the procedural defect.
We granted leave to appeal primarily to determine whether the circuit court can summarily dismiss a defendant‘s post-conviction petition at the first stage of post-conviction proceedings as untimely. Additionally, we consider whether
Boclair was convicted of murder and conspiracy to commit murder and was sentenced to death. On direct appeal, we vacated Boclair‘s death sentence but affirmed his convictions. People v. Boclair, 129 Ill. 2d 458 (1989). In November 1991, defendant was resentenced to natural life in prison. In October 1992, the circuit court summarily dismissed defendant‘s pro se post-conviction petition and the appellate court affirmed. People v. Boclair, 246 Ill. App. 3d 1119 (1993) (unpublished order under Supreme Court Rule 23). We subsequently denied Boclair‘s petition for leave to appeal. People v. Boclair, 152 Ill. 2d 562 (1993). In August 1998, defendant submitted a supplemental petition for post-conviction and post-judgment relief alleging that investigators obtained “newly discovered evidence” while pursuing a federal habeas corpus challenge. In November 1998, the circuit court summarily dismissed defendant‘s supplemental petition as “patently without merit.” The circuit court did not address the timeliness requirement. The appellate court affirmed, finding that Boclair‘s petition was untimely and that Boclair failed even to purport that he was not culpably negligent. Boclair, 312 Ill. App. 3d 346.
McCain was convicted of two counts of attempted murder and three counts of aggravated assault in February 1989. After sentencing, McCain appealed and the appellate court affirmed. People v. McCain, 207 Ill. App. 3d 1123 (1991) (unpublished order under Supreme Court Rule 23). We denied defendant‘s petition for leave to appeal. People v. McCain, 139 Ill. 2d 601 (1991). In August 1997, defendant filed a petition seeking post-conviction relief under the Act. The circuit court dismissed defendant‘s petition in October 1997, finding that defendant‘s petition was not timely filed, that the defendant was culpably negligent in not filing it on time, and that defendant failed to allege a constitutional violation that was not addressed on direct appeal or otherwise waived.
Johnson was convicted of murder and robbery. He appealed and the appellate court reversed. People v. Johnson, 138 Ill. App. 3d 980 (1985). On remand, defendant was again convicted. He appealed and the appellate court affirmed his conviction but remanded for resentencing. People v. Johnson, 173 Ill. App. 3d 998 (1988). In March 1998, Johnson filed a petition for post-conviction relief. Johnson contended that his failure to seek timely post-conviction relief was not due to his own culpable negligence. Johnson based his petition in large part on the recent discovery of new evidence negating his conviction. The circuit court summarily dismissed the petition, finding that it was clearly filed beyond the statutory time limitation and was therefore meritless. The circuit court further found that Johnson failed to show that his delay in filing was not due to his own culpable negligence. The appellate court reversed and held that the circuit court may not dismiss a petition as untimely without first providing the State with an opportunity to waive the procedural defect. Johnson, 312 Ill. App. 3d 532.
Boclair filed a petition for leave to appeal the Fourth District‘s decision. Similarly, the State sought leave to appeal from the Fifth District‘s decisions. We granted the parties’ respective petitions for leave to appeal and consolidated their cases.
II. ANALYSIS
On appeal to this court, defendants collectively argue that (1) the circuit courts erred in summarily dismissing their post-conviction petitions as untimely; (2)
A. Timeliness of Defendants’ Petitions
McCain and Johnson first contend that the circuit courts erred by summarily denying their post-conviction petitions as untimely during stage one of the post-conviction proceeding process. Boclair similarly argues that the appellate court, in affirming summary dismissal, improperly deemed his petition untimely. We consider this issue de novo. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998). For the reasons that follow, we agree with defendants.
Our decision in People v. Wright, 189 Ill. 2d 1 (1999), is generally instructive on this issue. There, we considered whether, in an appeаl from the dismissal of a post-conviction petition, the State may challenge the petition as untimely. Wright, 189 Ill. 2d at 10-11. We held that the time requirement in
“(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, defendant‘s petition survived the first stage of the post-conviction proceedings. At the second stage, the circuit court granted the State‘s motion to dismiss. On appeal, the defendant contended that the circuit court erred in granting the State‘s motion. The State responded, in part, by claiming, for the first time, that defendant‘s petition was untimely and that the circuit court lacked jurisdiction over the matter.
“[T]he 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 ofsection 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. [Citations.] A safety valve that allows an unlimited time in which to file a post-conviction petition cannot bе 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.
Consequently, because the State did not raise the statute of limitation issue in its second-stage motion to dismiss, the argument was forfeited on appeal. Wright, 189 Ill. 2d at 11.
We further noted that to allow the State to raise a timeliness objection on appeal would permit the State in all cases to raise an “affirmative defense that the defendant may [have been] able to avoid by amending his petition.” Wright, 189 Ill. 2d at 11. We further cautioned that we were “not limiting the [circuit] court‘s ability, during the court‘s initial review of noncapital petitions [citation], to dismiss the petition as untimely.” We also briefly referred to the court‘s “duty” to do so under
Some appellate court panels have interpreted this language in Wright as setting forth a “clear directive”
To the extent that our opinion in Wright may be read as holding the contrary to be true, we now expressly overturn that portion of the Wright decision.
The Act provides a three-stage process for the adjudication of post-conviction petitions. In the first stage, the circuit court determines whether the post-conviction petition is “frivolous or is patently without merit.”
To survive dismissal at this stage, the petition must only present “the gist of a constitutional claim.” Gault-
Under a plain reading of
To accept the argument that the circuit court has the authority to dismiss a petition pursuant to
Further, time is not an inherent element of the right to bring a post-conviction petition. Wright, 189 Ill. 2d at 10-11. For that reason, time limitations in the Act should be considered as an affirmative defense and can be raised, waived, or forfeited, by the State. See Wright, 189 Ill. 2d at 11-12. If an untimely petition demonstrates that a defendant suffered a deprivation of constitutional magnitude, a dutiful prosecutor may waive that proce-
Moreover, when a circuit court determines whether a defendant is culpably negligent in filing his petition late, the circuit court makes an assessment of the defendant‘s credibility. See McCain, 312 Ill. App. 3d at 531. At this initial stage of the proceedings, however, the court should only determine whether the petition alleges constitutional deprivations. The process at the summary review stage measures a petition‘s substantive virtue rather than its procedural compliance. See Johnson, 312 Ill. App. 3d at 534. In determining an issue of credibility, the circuit court necessarily exceeds the boundary set by
Finally, a defendant‘s claim of actual innocence cannot be reviewed when a circuit court enters a summary dismissal sua sponte, because the State does not have the opportunity to review the claim. The end result is that the State‘s prerogative to proceed on the merits of the petition despite procedural flaws is usurped by the circuit court.
Claims of actual innocence may be raised in a manner other than in a post-conviction petition, including in a
In sum, we conclude that the matter of untimeliness should be left for the State to assert during the second stage of the post-conviction proceedings. Therefore, the lower courts improperly deemed untimely defendants’ respective post-conviction petitions.
Defendants also argue that
As a threshold matter, we observe that defendants failed to raise this issue below. Nonetheless, a party may challenge the constitutionality of a statute at any time. People v. Wagener, 196 Ill. 2d 269, 279 (2001). A statute challenged as unconstitutional enjoys a presumption of constitutionality. Tully v. Edgar, 171 Ill. 2d 297, 304 (1996). If we reasonably can, we must construe a statute as constitutional and valid. Lee v. Nationwide Cassel, L.P., 174 Ill. 2d 540, 549 (1996). We will deem a legislative act unconstitutional when it is so vague, indefinite and uncertain that the courts are unable, by accepted rules of construction, to determine with any reasonable degree of precision the legislature‘s intent. Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc., 118 Ill. 2d 389, 402 (1987), quoting Mayhew v. Nelson, 346 Ill. 381, 387 (1931).
We have found statutes unconstitutionally vague where their ” ‘terms are so ill-defined that the ultimate decision as to [their] meaning rests on the opinions and whims of the trier of fact rather than any objective criteria or facts.’ ” Stern v. Norwest Mortgage, Inc., 179 Ill. 2d 160, 168 (1997), quoting People v. Burpo, 164 Ill. 2d 261, 265-66 (1995). Mathematical certainty in the language is, however, not required. People v. Warren, 173 Ill. 2d 348, 356 (1996). If a statute can be made more definite by a reasonable construction, the court must give the statute that interpretation. People v. Lang, 113 Ill. 2d 407, 455 (1986). A statute will not be rendered unconstitutionally vague merely because one could imagine hypotheticals that question the meaning of certain terms. People v. Izzo, 195 Ill. 2d 109, 113 (2001); In re R.C., 195 Ill. 2d 291, 299 (2001); Schiller Park Colonial Inn, Inc. v. Berz, 63 Ill. 2d 499, 513 (1976).
“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.”
725 ILCS 5/122—1(c) (West 2000).
Defendants first argue that
The argument that a petitioner must have some familiarity with supreme court rules falls well short of a valid attack on
It may be true that
Defendants also support their argument that the deadlines are ambiguous by pointing to a conflict between the districts of our appellate court on the issue of when a sentence is final. Defendants refer to the disagreement between the Fourth District‘s opinion in People v. Ivy, 313 Ill. App. 3d 1011 (2000), and the Second District‘s opinion in People v. Hager, 314 Ill. App. 3d 951 (2000). We granted Hager‘s petition for leave to appeal and that cause is currently pending in this court. People v. Hager, No. 90115. Defendants argue that pro se litigants cannot be expected to understand a statute that appellate court panels cannot consistently discern. Again, we reject defendants’ contention on this point. The fact that a statute might be susceptible of misapplication or varying interpretations does not necessarily make it unconstitutional. Stern v. Norwest Mortgage, Inc., 179 Ill. 2d 160, 168 (1997); Stein v. Howlett, 52 Ill. 2d 570, 580 (1972).
Finally, defendants argue that no decision has elucidated the meaning of “culpable negligence” or set standards for how to establish its absence. Since the statute and case law provide no guidance as to what a petitioner must do to satisfy this standard, the standard is unconstitutionally vague. Again, we disagree.
We conclude that the phrase “culpable negligence” is not unconstitutionally vague. The absence of statutory definitions of a few terms does not render a statute void
Our courts have interpreted the “culpable negligence” phrase consistently with these definitions. In People v. Wilson, 143 Ill. 2d 236, 248 (1991), this court impliedly equated culpable negligence with recklessness. We approvingly cited an opinion of the highest court of the State of New York describing culpable negligence as a ” ‘conscious choice of a course of action, in disregard of the consequences’ ” that might follow. Wilson, 143 Ill. 2d at 248, quoting People v. Decina, 2 N.Y.2d 133, 140 (1956).
The culpable negligence phrase also appears in several state statutes and court rules (e.g.,
For example, under
Likewise, other jurisdictions have defined “culpable negligence” in similar contexts. For example, in Holway v. Ames, 100 Me. 208, 60 A. 897 (1905), the Supreme Judicial Court of Maine defined “culpable neglect” in an analogous context as “less than gross carelessness, but more than the failure to use ordinary care.” Holway, 100 Me. at 211. In other contexts, other courts have defined culpable negligence as something more than mere neglect or more than a mere failure to use ordinary care. E.g., Ross v. Baker, 632 So. 2d 224, 226 (Fla. App. 1994) (holding that “[c]ulpable negligence is negligence of a gross and flagrant character which evinces a reckless disregard for the safety of others“); State v. Giordano, 138 N.H. 90, 95, 635 A.2d 482, 484 (1993) (stating that “[c]ulpable negligence is something more than ordinary negligence, mere neglect, or the failure to use ordinary care—it is negligence that is censorious, faulty or blameable“).
C. Single Subject Challenge
Finally, defendants argue that Public Act 83-942, eff. November 23, 1983, amending the Post-Conviction Hearing Act, violates the single subject rule of the Illinois Constitution (
We again note that defendants failed to raise this issue in the courts below. Nonetheless, constitutional challenges to a statute may be raised at any time, and we will consider the merits of defendants’ claim. Wagener, 196 Ill. 2d at 279. As noted previously, a statute challenged as unconstitutional enjoys a presumption of constitutionality. Tully, 171 Ill. 2d at 304. The single subject rule mandates that “[b]ills, except bills for appropriations and for the codification, revision or rearrangement of laws, shall be confined to one subject.”
In this context, courts must liberally construe the term “subject” in favor of upholding thе legislation. People v. Reedy, 186 Ill. 2d 1, 8-9 (1999); People v. Duni-
The dispositive question is whether they relate to a single subject. Premier Property Management, Inc. v. Chavez, 191 Ill. 2d 101, 112-14 (2000). A determination of whether a public act runs afoul of the single subject rule necessitates a two-step analysis. First, we must determine whether the act, on its face, involves a legitimate single subject. People v. Sypien, 198 Ill. 2d 334, 339 (2001). Second, we must discern whether the various provisions within an act all relate to the proper subject at issue. Sypien, 198 Ill. 2d at 339.
Considering the first tier of the analysis, the title of Public Act 83-942 indicates that it relates to matters of criminal justice and correctional facilities. Defendants base their argument in large part on this title and argue that criminal justice and correctional facilities are two separate subjects and therefore cannot be addressed in one act. We disagree.
First, we reject defendants’ heavy reliance on Public Act 83-942‘s title to support their claim. In Malchow, 193 Ill. 2d at 428-29, we noted that an act‘s title is not necessarily dispositive of its content or its relationship to a single subject. Otherwise, nothing would be left of the single subject rule beyond the creativity of legislative drafters to make titles of acts as broad as possible. People v. Pitts, 295 Ill. App. 3d 182, 189 (1998). Even if we were to focus our analysis on Public Act 83-942‘s title, “An Act in relation to criminal justice and correctional facilities,” we would be inclined to reject defendants’ argument on this point. In Malchow, 193 Ill. 2d at 428-29, we reviewed Public Act 89-8, eff. March 21, 1995, and its virtually identical title to that of Public Act 83-942: “An Act in relation to criminal and correctional matters.” We concluded in Malchow that Public Act 89-8 was not so broad as to violate the single subject rule.
Here, looking beyond the title, we conclude that, on its face, Public Act 83-942 relates to a single subject: the criminal justice system. Public Act 83-942 contains five substantive sections and amends several different statutes. As we more fully examine in step two of our analysis, section 1 of Public Act 83-942 pertains to substantive criminal law matters. Section 2 generally addresses administrative aspects of the correctional system pertaining to construction of correctional facilities. Sections 3, 4, and 5 also relate to the building and maintenance of correctional facilities. As previously noted, the subject of criminal justice and correctional facilities, or, more succinctly, the criminal justice system, is one that we have already deemed legitimate for single subject purposes. Malchow, 193 Ill. 2d at 428-29. We find no reason to depart from that holding today. Therefore, with regard to step one, we find that Public Act 83-942 involves a single, facially legitimate subject.
With respect to the second tier, we conclude that a substantive analysis of Public Act 83-942 indicates that each provision relates to the proper subject of the criminal justice system. Section 1 broadened the definition of “public official” in section 12-9 of the Criminal Code, and made it a crime to threaten a public official. Pub. Act 83-942, § 1, eff. November 23, 1983, amending
Section 2 implemented amendments to the Unified Code of Corrections by (1) expanding the powers and duties of the Department of Corrections (Corrections) to authorize the Department of Central Management Services (Central Management) to accept bids for the construction, remodeling, or conversion of a structure to serve as a correctional facility (Pub. Act 83-942, § 2, eff. November 23, 1983, amending
Section 3 of Public Act 83-942 amеnds section 11-74-2 of the Illinois Municipal Code by expanding the definition of “industrial project” to include “construction, remodeling or conversion of a structure to be leased to the Illinois Department of Corrections for the purposes of its serving as a correctional institution or facility pursuant to *** the [Unified Code].” (Emphasis added.) Pub. Act 83-942, § 3, eff. November 23, 1983, adding
Section 4 of Public Act 83-942 implements a similar amendment to section 2 of the Industrial Building Revenue Bond Act requiring bidding on prison projects. (Emphasis added.) Pub. Act 83-942, § 4, eff. November 23, 1983, adding
Section 5 of Public Act 83-942 amends section 67.02 of the Civil Administrative Code, expanding the powers and duties of Central Management to include entering “into an agreement with a municipality or county to construct, remodel or convert a structure for the purposes of its serving as a correctional institution.” (Emphasis added.) Pub. Act 83-942, § 5, eff. November 23, 1983, amending
We acknowledge that these sections do not relate directly to one another in the narrow sense. The dispositive question is, however, not whether amendments relate to each other; rather, the issue is whether they relate to a single subject. Arangold, 187 Ill. 2d at 356; Chavez, 191 Ill. 2d at 112-14.
We hold that Public Act 83-942 satisfies that requirement. Section 1 addresses substantive criminal law and section 2 addresses administrative aspects of the
In Malchow, we similarly concluded that criminal and correctional matters constituted one subject for purposes of the single subject rule. There, we examined a public act far more broad and sweeping than the one at issue here. The amendments in that case altered over a dozen seemingly unrelated statutes including the Medical Practice Act of 1987, the Code of Civil Procedure, and the Civil Administrative Code. Upon closer inspection, the amendments were indeed related to the single subject of criminal and correctional law. On that basis, we held that Malchow failed to meet his substantial burden of demonstrating that Public Act 89-8‘s amendments had no natural and logical connection. Malchow, 193 Ill. 2d at 428-29. We make the same finding in this case. We conclude that Public Act 83-942 does not violate the Illinois Constitution‘s single subject rule.
III. CONCLUSION
We find that McCain‘s and Johnson‘s respective post-conviction petitions were improperly summarily dismissed as untimely. We therefore affirm the appellate court‘s judgments in McCain and Johnson. We further find that the appellate court improperly relied on timing issues when it affirmed the circuit court‘s dismissal in Boclair. We therefore reverse the appellate court‘s judg-
We further find that section 122-1(c) of the Post-Conviction Hearing Act is not unconstitutionally vague. Finally, we find that Public Act 83-942 does not violate the single subject rule.
No. 89388—Reversed and remanded.
No. 89471—Affirmed.
No. 89534—Affirmed.
JUSTICE FREEMAN, specially concurring:
I agree with the thoughts expressed by Justice McMorrow аnd join in her separate opinion. However, I write separately to note some concerns that I have with respect to the Post-Conviction Hearing Act.
The appeals in this consolidated case arise from the fallout from this court‘s opinion in People v. Wright, 189 Ill. 2d 1 (1999). In Wright, this court was asked to determine whether section 122-1 of the Post-Conviction Hearing Act (Act) (
Today‘s opinion settles the confusion wrought by Wright. We know now, with certainty, that the time provisions contained in section 122-1 constitute an ordinary statute of limitations that can only be raised by the State and not by the circuit court sua sponte. In so holding, the court reaffirms one of the linchpins to the analysis contained in Wright—that time is not an inherent element of the right to bring a post-conviction petition. 202 Ill. 2d at 102. I disagreed with that principle in Wright and continue to do so today. As I noted in my dissent in Wright, the General Assembly has, over the years, shortened the time within which a post-conviction petition may be brought, absent the lack of culpable negligence. At one time, the Act allowed for the filing of a petition up to 20 years after the rendition of a final judgment in a criminal proceeding. Subsequently, the legislature reduced the time period to 10 years. As of January 1, 1996, the General Assembly again amended the section to require that the petition be filed within 45 days of the appellant‘s brief on direct appeal or three years from the date of conviction, whichever is sooner. In light of the direction the General Assembly has taken in decreasing the time period in which a post-conviction petition may be filed, I cannot agree that time is not an element to this legislatively created relief.
The court today relies on the plain language of section 122-2.1 to hold that if “the legislature intended for a trial judge to sua sponte dismiss a petition as being untimely, it would have so provided in section 122-2.1(a)(2) of the Act.” 202 Ill. 2d at 100-01. Thus, because timeliness is not listed in section 122-2.1, the court reasons that the legislature did not intend for timeliness to be assessed during the summary dismissal stage. In my view, a petition that is filed outside the time provi-
Despite these views, I concur in today‘s opinion for several reasons. First, I believe that today‘s result follows from Wright. See 202 Ill. 2d at 131 (McMorrow, J., specially concurring, joined by Freeman, J.). Although I disagreed with the holding in Wright, it is clear to me that this court will not revisit the issue and that stare decisis applies. In light of the fact that I have registered my disagreement previously, I will recognize this portion of Wright as the law and follow it, particularly now that the holding in Wright has been clarified. See People v. Barrow, 195 Ill. 2d 506, 542-43 (2001) (Freeman, J., concurring). Second, and perhaps more importantly, with the rendition of this opinion as well as Wright, I believe that a written record has been laid down by this court and that the matter should now be taken up by the General Assembly.
The questions in this case and in others concerning the procedural aspects of the Act need the attention of our legislature. In my opinion, the fact that the time provision is contained in the very first section of the Act seems to indicate that the legislature deems it to be a threshold inquiry made either before or concurrent with the “frivolous” and “patently without merit” determinations required by section 2.1. As such, I believe that the better course to follow in such cases is to require that the petitioner show the timeliness of his or her post-conviction action. However, this court has held that the
As I stated earlier, the court today, consistent with Wright, holds that the matter of timeliness is an affirmative defense that the State must raise or waive. The court defends its statutory interpretation by noting that “[i]f an untimely petition demonstrates that a defendant suffered a deprivation of constitutional magnitude, a dutiful prosecutor may waive that procedural defect during the second stage of the post-conviction proceedings.” 202 Ill. 2d at 101-02. I find this language troubling on several levels. My years on this court lead me to conclude that the State tends to raise and litigate all of its defenses
Finally, I should also mention the culpable-negligence exception to the time provision. The court today appears to hold as it does because of a fear that claims of actual innocence may go unheard if they are not timely. See 202 Ill. 2d at 102. I must point out that the culpable-negligence exception is not grounded in terms of “actual innocence.” Nor is the exception met due to the meritoriousness of the claims. On the contrary, the inquiry surrounding whether a petitioner‘s delay in filing was caused by his or her culpable negligence has nothing to do with the merits of the claims petitioner asserts. Rather, the inquiry is grounded upon whether the petitioner is at fault for not raising the matter within the time period set by the legislature. While some of the circumstances surrounding claims of actual innocence may meet this requirement, some may not. Thus, I believe it unwise for the court to equate, in any manner, the culpable-negligence requirement of section 122-1 with claims of actual innocence. Indeed, the General Assembly may wish to reconsider the phrasing of the safety valve of the Act in order to expressly accommodate claims of actual innocence that arise past the meager time limitations that the Act currently provides.
JUSTICE MCMORROW, also specially concurring:
The majority holds that a post-conviction petition which is untimely filed and which fails to allege facts which show that the delay in filing was not due to the petitioner‘s “culpable negligence” (
I
In People v. Collins, 202 Ill. 2d 59 (2002), this court affirmed the circuit court‘s summary dismissal of a pro se defendant‘s post-conviction petition because the defendant failed to comply with the affidavit requirement set forth in section 122-2 of the Post-Conviction Hearing Act (Act) (
To satisfy the affidavit requirement of section 122-2, this court held, the defendant should have attached at least one additional affidavit in support of his post-conviction claim. This second affidavit was necessary, this court reasoned, to show “that the verified allegations are capable of objective or independent corroboration.” Collins, 202 Ill. 2d at 67. Therefore, the additional affidavit needed to come from someone other than the defendant. This court further held that, in the absence of a second affidavit, the defendant was required to “at least explain why such [objective or independent] evidence is unobtainable.” Collins, 202 Ill. 2d at 68. The defendant‘s failure to comply with this latter “pleading requirement,” by itself, warranted summary dismissal of his post-conviction petition. Collins, 202 Ill. 2d at 65, 68. This court emphasized in Collins that it was not deciding whether the defendant‘s petition alleged a constitutional deprivation. See Collins, 202 Ill. 2d at 69 (distinguishing People v. Edwards, 197 Ill. 2d 239 (2001)). Rather, the
II
In the case at bar, this court is asked to decide whether a post-conviction petition which has not been filed within the time limitations set forth in section 122-1 of the Post-Conviction Hearing Act (
“Section 122-2.1(a)(2) requires the circuit court to determine within 90 days of the filing of a post-conviction petition whether the petition is ‘frivolous or is patently without merit.’
725 ILCS 5/122-2.1(a)(2) (West 2000) . Importantly, we note that this section is silent regarding timeliness. Rather, timeliness is addressed elsewhere, in section 122-1(c), instructing defendants as to the time periods for filing petitions. If this court can ascertain legislative intent from the plain language of the statute itself, that intent must prevail. Barnett v. Zion Park District, 171 Ill. 2d 378 (1996). We will not depart from the plain language of the statute by reading into it exceptions, limitations, or conditions that conflict with the express legislative intent. Barnett, 171 Ill. 2d at 389.Under a plain reading of section 122-2.1(a)(2), the circuit court may dismiss a post-conviction petition at the initial stage only if the petition is deemed to be ‘frivolous or patently without merit,’ not if it is untimely filed. If the
legislature intended for a trial judge to sua sponte dismiss a petition as being untimely, it would have so provided in section 122-2.1(a)(2) of the Act. Instead, the legislature provided in section 122-5 that the State may file a motion to dismiss. [Citation.] By addressing timeliness and frivolousness in separate provisions of the Act, the legislature plainly intended to draw a distinction between these two flaws of post-conviction petitions.” 202 Ill. 2d at 100-01.
After reaching the above conclusions, the majority goes on to determine that the phrase “frivolous or *** patently without merit” refers only to the substance of the claim alleged in the petition, not any procedural requirements or limitations imposed by the Act. The majority notes:
“To accept the argument that the circuit court has the authority to dismiss [an untimely] petition pursuant to section 122-2.1(a)(2) of the Act we would have to hold, contrary to the language of the Act, that the phrasе ‘frivolous or *** patently without merit’ encompasses untimely petitions. We will not ignore the Act‘s language and adopt this interpretation. If a petition is untimely that does not necessarily mean that the petition lacks merit.” 202 Ill. 2d at 101.
The majority also explains that it would be improper for a circuit court to consider the timeliness of a post-conviction petition at the summary dismissal stage because such an inquiry might require the court to determine whether the petitioner had alleged facts showing a lack of “culpable negligence” which would excuse the tardy filing. See
“Moreover, when a circuit court determines whether a defendant is culpably negligent in filing his petition late, the circuit court makes an assessment of the defendant‘s
credibility. See McCain, 312 Ill. App. 3d at 531. At this initial stage of the proceedings, however, the court should only determine whether the petition alleges constitutional deprivations. The process at the summary review stage measures a petition‘s substantive virtue rather than its procedural compliance. See Johnson, 312 Ill. App. 3d at 534. In determining an issue of credibility, the circuit court necessarily exceeds the boundary set by section 122-2.1(a)(1).” (Emphasis added.) 202 Ill. 2d at 102.
Finally, the majority notes that it is inappropriate as a matter of policy for the circuit court to consider the timeliness of a post-conviction petition at the summary dismissal stage because to do so might result in the loss of a meritorious claim of actuаl innocence. As the majority explains:
“Claims of actual innocence may be raised in a manner other than in a post-conviction petition, including in a section 2-1401 motion.
735 ILCS 5/2-1401 (West 2000) . Nonetheless, to allow the circuit court to dismiss summarily post-conviction petitions for failure to present evidence of actual innocence in a timely manner could lead to a miscarriage of justice. Although our criminal justice system needs finality in criminal litigation and judgments, it should not come at the expense of justice and fairness.” 202 Ill. 2d at 102.
For the foregoing reasons, the majority concludes that matters of timeliness must “be left for the State to assert during the second stage of the post-conviction proceedings.” 202 Ill. 2d at 102. During the initial, summary dismissal stage of post-conviction proceedings, the majority holds, a circuit court may not consider whether a post-conviction petition has satisfied the procedural requirement of timeliness.
III
The majority opinion in this case conflicts with Collins at every significant point in its analysis. For example, this court‘s opinion in Collins states:
“Contrary to the clear mandate of section 122-2 of the Act,
defendant‘s petition was unsupported by ‘affidavits, records, or other evidence’ and offered no explanation for the absence of such documentation. This fact alone justifies the summary dismissal of defendant‘s petition.” (Emphasis added.) Collins, 202 Ill. 2d at 66.
The affidavit requirement that this court found dispositive in Collins was found in section 122-2 of the Act, not section 122-2.1, the section of the Act which authorizes summary dismissal. Pursuant to the majority opinion in the case at bar, a circuit court may not look to any section of the Act other than section 122-2.1 to determine whether a post-conviction petition is subject to summary dismissal. See 202 Ill. 2d at 100.
In addition, the majority opinion in the case at bar holds that the only inquiry the circuit court may make at the summary dismissal stage is whether the post-conviction petition “alleges constitutional deprivations.” 202 Ill. 2d at 102. In other words, under the majority‘s holding, the circuit court is limited at the summary dismissal stage to asking whether the petition states the ” ‘gist of a constitutional claim.’ ” 202 Ill. 2d at 99-100, 102, quoting People v. Gaultney, 174 Ill. 2d 410, 418 (1996). According to the majority opinion, matters of “procedural compliance” (202 Ill. 2d at 102) may not be considered in the initial stage of post-conviction review.
In contrast, this court in Collins did not consider whether the defendant‘s petition successfully alleged a constitutional deprivation by stating the gist of a constitutional claim. Instead, the court concerned itself solely with whether the defendant complied with the affidavit requirement of section 122-2. In contrast to the case at bar, Collins holds that the circuit court should consider whether a pro se defendant has complied with the Act‘s procedural requirements at the initial stage of post-conviction review. Collins holds that a pro se defendant‘s failure to explain the absence of a second affidavit is sufficient reason, standing alone, to summarily
This court‘s holding in Collins also conflicts with the policy concerns expressed by the majority in the instant case. As noted, in Collins, this court held that a pro se post-conviction petition should be summarily dismissed if it fails to comply with one of the pleading requirements set forth in section 122-2 of the Act. Section 122-2 provides, in full:
“The petition shall identify the proceeding in which the petitioner was convicted, give the date of the rendition of the final judgment complained of, and clearly set forth the respects in which petitioner‘s constitutional rights were violated. The petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same arе not attached. The petition shall identify any previous proceedings that the petitioner may have taken to secure relief from his conviction. Argument and citations and discussion of authorities shall be omitted from the petition.”
725 ILCS 5/122-2 (West 2000) .
As this court explained in Collins, the defendant in that case failed to satisfy section 122-2‘s requirement that he “at least explain” why a second affidavit was not attached to his petition. Collins, 202 Ill. 2d at 68. Therefore, this court held, his petition was properly dismissed at the summary review stage. Collins, 202 Ill. 2d at 68. Notably, in reaching this conclusion, this court chose not to provide the defendant with the opportunity to amend his post-conviction petition with an explanation for why an additional affidavit was unavailable. Our case law would permit such an amendment. See People v. Watson, 187 Ill. 2d 448 (1999). Nevertheless, this court held that the defendant‘s petition should be finally dismissed.
This court‘s decision not to permit any amendment of the defendant‘s post-conviction petition in Collins is of
The majority today reaches a contrary result. In the case at bar, the majority holds that it would be a “miscarriage of justice” for a meritorious claim of actual innocence to evade judicial review because of a procedural deficiency in the post-conviction petition. According to the majority, allowing a claim of actual innocence to be lost because of a procedural deficiency would be contrary to principles of “justice and fairness.” 202 Ill. 2d at 102.
In sum:
- This court in Collins held that, in determining whether a pro se post-conviction petition is subject to summary dismissal, the circuit court should look beyond section 122-2.1(a)(2) of the Act and consider whether the petition has complied with the pleading requirements set forth in section 122-2. The majority opinion in the case at bar holds that the circuit court may not consider sections of the Act other than section 122-2.1(a)(2).
- This court in Collins upheld the summary dismissal of the defendant‘s post-conviction petition without considering whether the defendant‘s petition stated the gist of a constitutional claim. The majority opinion in this case holds that the circuit court may dismiss a post-conviction petition at the initial stage of review only if the petition fails to state the gist of a constitutional claim.
This court in Collins held that a technical pleading deficiency in a pro se post-conviction petition warrants its summary dismissal. The majority opinion in the case at bar holds that, at the summary dismissal stage, the circuit court should not consider whether the petition is in “procedural compliance.” 202 Ill. 2d at 102. - This court in Collins held that the language of the Act requires strict procedural compliance from pro se post-conviction petitioners at the summary dismissal stage. The majority opinion in the instant case holds that such compliance may not be required at the initial stage of post-conviction review because to do so could result in “a miscarriage of justice.” 202 Ill. 2d at 102.
This court‘s opinion in Collins and the majority opinion in this case are in direct and irreconcilable conflict. Given this conflict, it appears that the majority opinion in the case at bar, as the later issued of the two opinions, has overruled this court‘s decision in Collins sub silentio. The majority‘s decision to overrule Collins is not, of itself, error. However, I do believe that the majority has seriously erred by not citing Collins or explaining the effect that the instant holding has on that decision.1 As a result of the majority opinion in this case, the bench and bar of this state will be confronted with two opinions from this court, issued within six months of each other, whose holdings and reasoning with respect to the summary dismissal of post-conviction petitions are diametrically opposed. The inevitable result of allowing these two opinions to stand side-by-side will be confusion in our lower courts. Indeed, the present case itself illustrates the problems that are bound to occur. In the case at bar, this court is asked to explain the meaning and scope of our holding in People v. Wright, 189 Ill. 2d 1 (1999). That opinion, as was noted at the time of its issuance, contained conflicting statements regarding the
Justice Thomas attempts to reconcile the positions taken by this court in Collins and the case at bar. See 202 Ill. 2d at 141-43 (Thomas, J., specially concurring, joined by Fitzgerald, J.). Notably absent from Justice Thomas’ analysis, however, is any discussion of the relevant holding of the majority opinion in this case. The principal issue presented in the instant case is whether the circuit court may summarily dismiss a post-conviction petition as frivolous or patently without merit if the petition is untimely filed and if the petition offers no explanation for the tardy filing. Stated otherwise, the question presented is whether an untimely post-conviction petition may be deemed frivolous or patently without merit. The majority opinion answers this question “no.” Why? Because, the majority explains, the definitions of the
terms “frivolous” and “patently without merit” do not include any of the Act‘s requirements, such as timeliness, which are set forth in sections of the Act outside
“At [the] initial stage of the [post-conviction] proceedings, however, the court should only determine whether the petition alleges constitutional deprivations.” (Emphasis added.) 202 Ill. 2d at 102.
“Only” means only. Thus, under the majority holding in this case, the circuit courts are instructed that, at thе summary dismissal stage, they need not and should not consider whether the post-conviction petition is timely filed. Nor should they consider whether affidavits are attached to the petition. Nor should they consider whether any of the requirements set forth in
This court‘s opinion in Collins, however, stands in stark contrast to the principles regarding summary dismissal adopted by the majority opinion in this case. According to Collins, a frivolous or meritless petition is not defined solely as one which fails to state the gist of a constitutional claim. Instead, under Collins, a frivolous or meritless petition is also defined as one which fails to meet the pleading requirements set forth in
According to the case at bar, a frivolous or meritless petition means only one thing—a petition which fails to state the gist of a constitutional claim. Thus, in this case, any pleading requirements set forth in the Act are not relevant at the summary dismissal stage. Collins, on the other hand, holds that a frivolous or meritless petition means more than one thing. It also means a petition which fails to meet the pleading requirements of
Also strikingly absent from Justice Thomas’ analysis is any recognition of the dramatically different policy positions taken in Collins and the majority opinion in this case. As noted, Collins takes an extremely strict view of the pleading requirements set forth in
The majority opinion in this case, on the other hand, offers a liberal construction of the time limitations set forth in
Surely, a post-conviction petition which is filed years too late and which offers no explanation for the delay is as deficient, or more deficient, than one which fails to list the date of сonviction or to explain the absence of an affidavit. Why then are these latter deficiencies treated with such draconian fervor in Collins, while the former are liberally excused in the case at bar? Why is the concern that a meritorious claim of actual innocence might escape judicial review a dispositive factor in the majority‘s analysis in the case at bar while that same concern appears nowhere in Collins? No explanation has been offered for the extreme disparity in policy concerns and statutory interpretation between the two cases.
Justice Thomas’ special concurrence in this case addresses none of the issues noted above. Instead, Justice Thomas focuses solely on the notions of substance and procedure and determines that Collins and the majority opinion in this case may be reconciled on the basis of
“[S]ection 122-2 makes clear that the petitioner who is unable to obtain the necessary ‘affidavits, records, or other evidence’ must at least explain why such evidence is unobtainable. In this case, defendant is asking to be excused not only from
section 122-2‘s evidentiary requirements but also fromsection 122-2‘s pleading requirements. Nothing in the Act authorizes such a comprehensive departure.” (Emphases in original.) Collins, 202 Ill. 2d at 68.
According to this court‘s opinion in Collins, which was authored by Justice Thomas, the failure to explain why an affidavit is not attached to the petition is a pleading deficiency. It is not a substantive defect. In light of the above, how can it possibly be stated that the failure to
Furthermore, Justice Thomas’ determination that all of the pleading requirements contained in
“At this initial stage of the proceedings, however, the court should only determine whether the petition alleges constitutional deprivations. The process at the summary review stage measures a petitiоn‘s substantive virtue rather than its procedural compliance.” 202 Ill. 2d at 102.
Again, according to the majority in this case, at the summary dismissal stage, the circuit court must only consider whether the petition alleges a constitutional deprivation. No other inquiry is permitted. In the view of the majority, whether the petition alleges a constitutional deprivation is the measure of the petition‘s “substantive virtue.” 202 Ill. 2d at 102. The majority opinion in this case has thus defined the “substance” of a post-conviction petition as that portion of the petition which attempts to allege a constitutional deprivation, i.e., to state the gist of a constitutional claim.
The affidavit requirement discussed in Collins is not a “substantive” component of a post-conviction petition under the logic of the majority opinion in the case at bar. Whether a petition contains an explanation for the absence of an affidavit simply has no bearing on the question of whether the allegations of the petition state the gist of a constitutional claim. The two cases cannot, therefore, be reconciled under notions of substance and procedure, and Justice Thomas’ assertion to the contrary is in error.
The only authority which Justice Thomas cites in
The position taken by Justice Thomas in his special concurrence also leads to questionable results. According to Justice Thomas, all the pleading requirements contained in
The circuit court judge who is forced to deal with Collins and the case at bar is presented with a dilemma. Confronted with a post-conviction petition alleging a claim of ineffective assistance of counsel for failing to file an appeal, and without an additional affidavit attached, what should the court do? Should the judge follow Collins’ instructions to summarily dismiss the petition, or should the judge follow the instructions of the majority opinion in this case and “only determine whether the petition alleges constitutional deprivations“? 202 Ill. 2d at 102. Should the judge invoke this court‘s holding in Collins that the failure to explain the absence of an affidavit is simply a pleading deficiency, or should the judge give effect to the statement of the author of that opinion which has been offered in this case that the failure to explain the absence is an “essential substantive component[]” of the petition? 202 Ill. 2d at 141 (Thomas, J., specially concurring, joined by Fitzgerald, J.). Should the circuit court follow the holding of the majority in this case, since it is the later issued opinion, or should the court follow Collins, since it specifically rules on the af-
Moreover, what of the consequences after the circuit court rules? Some circuit judges, relying on Collins, will summarily dismiss post-conviction petitions which lack an additional affidavit. On appeal, members of the defense bar will, with justification, point to our holding in this case and argue that the circuit courts should only be addressing whether the petition states the gist of a constitutional claim and should not be considering the affidavit requirement. Some appellate panels will agree with this argument. Others will nоt. As a result, conflicting opinions will arise and will continue until this court grants leave to appeal in order to resolve the conflict. Time and judicial resources will be expended needlessly. Nothing will be gained.
The majority opinion in the case at bar holds that the process of summary dismissal addresses only one issue, i.e., whether the petition states the gist of a constitutional claim. Collins holds that the summary dismissal process addresses more than one issue, i.e., whether the petition states the gist of a constitutional claim or whether the petition meets any of the pleading requirements contained in the Act. Whatever one thinks of the merits of these approaches to the process of summary dismissal, it cannot be said that they are compatible or can logically exist at the same time. Either the circuit court‘s inquiry at the summary dismissal stage should be limited solely to whether the petition states the gist of constitutional claim or it should not be so limited. The court cannot have it both ways.
The petition for rehearing filed by the defendant in Collins has been pending in this court at the same time this opinion has been under advisement. If the court
IV
Although I disagree with the majority‘s failure to discuss the effect of its decision on Collins, I agree with the conclusion the majority reaches on the merits. Addressing the defendants’ arguments in the instant appeal, the majority first examines this cоurt‘s decision in People v. Wright, 189 Ill. 2d 1 (1999). In Wright, this court was asked to decide whether the post-conviction time limitations set forth in
“[A] petitioner whose untimely petition is dismissed for lack of jurisdiction could return to the circuit court and attempt to take advantage of the ‘safety valve’ by filing a new petition which contains the requisite allegations concerning the lack of culpable negligence. Such a successive petition would not be barred by the doctrine of res judicata because a dismissal for lack of jurisdiction does not cоnstitute an adjudication on the merits. Under this approach, the action would proceed in a way that is consistent with the language of the Act (the petitioner must allege and establish his or her lack of culpable negligence for the delay as required under the Act), and the State has not been allowed to ‘trump’ the truly nonculpably negligent petitioner from the opportunity to seek collateral review under the Act.” Wright, 189 Ill. 2d at 30 (Freeman, C.J., specially concurring, joined by McMorrow, J.).
The majority in Wright, however, held that, under the plain language of the Act, time was not an integral part of post-conviction relief and that the time limitations were best viewed as a statute of limitations. Wright, 189 Ill. 2d at 8. The court noted that, like other statues of limitations, the time limitations in the Act were an affirmative defense that were subject to waiver by the State. Wright, 189 Ill. 2d at 10-11. Thus, if the State failed to raise the issue of timeliness in the circuit court, it could not raise the issue for the first time on appeal. Wright, 189 Ill. 2d at 10-11. In sum, the court concluded that the post-conviction time limitations were an ordinary statute of limitations that should not “be treated differently [than] any other.” Wright, 189 Ill. 2d at 12.
After reaching the above conclusions, however, the
In the instant case, the majority acknowledges that this court‘s opinion in Wright contains conflicting statements regarding the nature of the post-conviction time limitations and that these statements have generated considerable confusion in our appellate court. See 202 Ill. 2d at 98-99. The majority today resolves the ambiguity in Wright by overruling that portion of the Wright opinion which holds that the circuit court may sua sponte dismiss an untimely petition. I agree with this result.
As Justice Freeman explained at length in his separate opinion in Wright, the clear and overriding holding of the Wright majority opinion is that the time limitations in the Act are “an affirmative matter to be raised by the State, and the State alone.” (Emphasis added.) Wright, 189 Ill. 2d at 33 (Freeman, C.J., specially concurring, joined by McMorrow, J.). As Justice Freeman stated, “I read [the majority opinion in Wright] as holding that
The Wright court‘s additional statements that the circuit court could raise the issues of timeliness and culpable negligence sua sponte are irreconcilable with the major holding of that case. See Wright, 189 Ill. 2d at 32-33 (Freeman, C.J., specially concurring, joined by McMorrow, J.). Although I joined Justice Freeman in dissenting from the Wright court‘s principal holding that issues pertaining to timeliness must be raised by the State, I accept the Wright court‘s holding as the law. Accordingly, because the fundamental holding of Wright is that the issues of timeliness and culpable negligence are an affirmative defense that can be raised only by the State, and because any rule which allows the circuit cоurt to raise these issues sua sponte is directly at odds with that holding, I agree that the portion of Wright which authorizes the circuit courts to sua sponte dismiss untimely petitions should be overruled. Wright holds that the post-conviction time limitations are an ordinary statute of limitations that should not “be treated differently [than] any other.” Wright, 189 Ill. 2d at 12. Wright dictates, therefore, that issues of timeliness may not be raised sua sponte by the circuit court at the summary dismissal stage of post-conviction proceedings.
In addition to the above, I note that by holding that the circuit court should not concern itself with matters of timeliness on first stage review, the majority in the case at bar has removed an issue from the circuit court‘s consideration during this stage, thereby reducing the burden placed on the circuit court. In this way, the rule adopted by the majority comports with this court‘s
JUSTICE FREEMAN joins in this special concurrence.
JUSTICE THOMAS, also specially concurring:
I must briefly respond to Justice McMorrow‘s exhaustive examination of the alleged conflict between today‘s opinion and this court‘s recent decision in People v. Collins, 202 Ill. 2d 59 (2002). The fact is that no such conflict exists, as, notwithstanding Justice McMorrow‘s repeated assertions,
“The petition shall identify the proceeding in which the petitioner was convicted, give the date of the rendition of the final judgment complained of, and clearly set forth the respects in which petitioner‘s constitutional rights were violated. The petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached. The petition shall identify any previous proceedings that the petitioner may have taken to secure relief from his conviction. Argument and citations and discussion of authorities shall be omitted from the petition.”
725 ILCS 5/122-2 (West 2000) .
That the foregoing provision is purely substantive not only is plain on its face but also underscored by its relationship to
“The proceeding shall be commenced by filing with the clerk of the court in which the conviction took place a petition (together with a copy thereof) verified by affidavit.”
725 ILCS 5/122-1(b) (West 2000) .
Surely, if a proceeding under the Act commences only upon the filing of a “petition,” then the Act must somewhere define what constitutes a “petition.” Otherwise, the filing of any scrap of paper might be deemed to commence a post-conviction proceeding. That definition is found in
And this is where Justice McMorrow‘s analysis falters. If a proceeding under the Act may be commenced only upon the filing of a “petition,” and
Significantly, there is nothing new in suggesting that compliance with the Act‘s substantive pleading requirements is the necessary first step in any proceeding under the Act. Morе than 50 years ago, this court explained:
“If the petition [alleges a substantial violation of constitutional rights], the trial court should ascertain whether it is supported by accompanying affidavits and if not, whether the absence of such affidavits is sufficiently explained and excused by the petitioner‘s own sworn statements. Where there are no supporting affidavits and their absence is neither explained nor excused, the trial court should either dismiss the petition or grant a further time within which such affidavits may be obtained.
A petition meeting these requirements, both as to substantial allegations of the denial of a constitutional right and as to affidavits, is sufficient to invoke the act.” People v. Jennings, 411 Ill. 21, 26 (1952).
Of course, the converse also is true: a petition that does
Thus, contrary to Justice McMorrow‘s thesis, there is nothing in the least bit incompatible between today‘s decision and Collins. Today, the court correctly holds that, in determining whether a post-conviction petition is frivolous or patently without merit, the trial court may not consider whether the petition suffers from a procedural defect such as untimeliness. In Collins, the court correctly held that, in determining whether a post-conviction petition is frivolous or patently without merit, the trial court may consider whether the proffered petition is in fact a “petition” as defined by the Act. In effect, then, these decisions are two sides of the same coin, emphatically agreeing that, “[t]he process at the summary review stage measures a petition‘s substantive virtue rather than its procedural compliance.” 202 Ill. 2d at 102.
JUSTICE FITZGERALD joins in this special concurrence.
(No. 90115.—
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBERT L. HAGER, Appellant. Opinion filed August 29, 2002.