THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BRANDON CRAIGHEAD, Defendant-Appellee.
NO. 5-14-0468
APPELLATE COURT OF ILLINOIS FIFTH DISTRICT
September 11, 2015
2015 IL App (5th) 140468
NOTICE Decision filed 09/11/15. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
Appeal from the Circuit Court of St. Clair County.
No. 97-CF-430
Honorable John Baricevic, Judge, presiding.
OPINION
¶ 1 The State appeals from an order of the circuit court of St. Clair County granting the postconviction request of defendant, Brandon Craighead, for a new sentencing hearing. The issues raised in this appeal are: (1) whether defendant‘s postconviction petition was timely filed and (2) whether Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), retroactively applies to cases on collateral review. We affirm.
¶ 2 BACKGROUND
¶ 3 After a jury trial, defendant was convicted of two counts of first-degree murder for the April 17, 1997, murders of Martin and Judy Dotson. Defendant, age 16 at the time of the murders, was tried as an adult pursuant to
¶ 4 On October 4, 2004, defendant filed a pro se postconviction petition pursuant to the
¶ 5 The State filed a motion to dismiss on, inter alia, grounds of untimeliness, alleging the last day for defendant to file a postconviction petition was March 2, 2004. In response, defense counsel filed a motion to excuse late filing, alleging the late filing was not due to defendant‘s culpable negligence. After a hearing in January 2011, the trial court denied the State‘s motion to dismiss on grounds of untimeliness. The State did not file a motion to reconsider.
¶ 6 Defense counsel sought additional time to file a second amended petition and, later, a third amended petition, both without objection by the State. Both amended petitions incorporated Miller v. Alabama, which holds that a mandatory imposition of a life sentence without parole on a person under the age of 18 at the time of the offense violates the eighth amendment‘s prohibition against cruel and unusual punishment. Miller, 567 U.S. at ___, 132 S. Ct. at 2460. Defendant supplemented his petition with a copy of People v. Davis, 2014 IL 115595, 6 N.E.3d 709, which holds Miller applies retroactively to cases on collateral review.
¶ 7 The State filed a motion to dismiss defendant‘s third amended postconviction petition, alleging, inter alia, each of defendant‘s arguments was either refuted by or not supported by the record or by affidavit, and all claims were barred for a variety of procedural reasons. The State sought to preserve for appellate review the trial court‘s January 2011 hearing on timeliness and the retroactivity of Miller. The State acknowledged Davis, but asserted it was raising the retroactivity argument “in the likely event that this issue is decided by the United States Supreme Court, given the fact that other state high courts have ruled that Miller does not apply retroactively.”
¶ 8 The trial court held a hearing, and the issue of retroactivity of Miller advanced to the third stage, while the remaining issues remained at the second stage of postconviction proceedings. On August 28, 2014, the trial court entered an order finding defendant was entitled to a new sentencing hearing pursuant to Miller and Davis, but all other issues were either “waived” or “without merit.” The trial court also found the State preserved the timeliness issue for appeal. The State now appeals.
¶ 9 ANALYSIS
¶ 10 The first issue raised on appeal is whether defendant‘s postconviction petition was timely filed. The State argues the trial court should have dismissed defendant‘s postconviction petition as untimely where he failed to prove lack of culpable negligence for the late filing, and it raises five specific contentions as to why defendant failed to meet his burden of proving he lacked culpable negligence in the late filing. On the other hand, defendant insists the two issues raised by the State on appeal are intertwined. Defendant contends we are not confined to the trial court‘s precise ruling made on January 19, 2011, finding a lack of culpable negligence excused the delay and urges us to consider the overall circumstances, including significant changes in both state and federal law affecting defendant‘s initial petition, which remained pending in the trial court for nearly a decade. We agree with defendant and, therefore, consider both the timeliness issue and the issue of the retroactivity of Miller to cases on collateral review together.
¶ 12 The Act provides for up to three stages of postconviction proceedings. People v. Pendleton, 223 Ill. 2d 458, 471-72, 861 N.E.2d 999, 1007-08 (2006). At the first stage, the circuit court has 90 days to examine the petition and to determine, without input from the State, whether it is frivolous or patently without merit, and, if so, to summarily dismiss it.
¶ 13 The instant case presents a unique set of circumstances. In 2004, defendant filed a pro se postconviction petition. The first stage followed schedule in that within 90 days of the filing, the circuit court (1) found defendant raised the gist of a constitutional claim, (2) appointed counsel, and (3) ordered the petition amended. The proceedings then went awry, with continuances and failure to address the underlying issues presented in the petition, resulting in a 10-year second stage. However, during those 10 years, case law developed which further supported defendant‘s initial contention that his mandatory natural life sentence was unconstitutional because the sentencing judge was precluded from considering his status as a juvenile.
¶ 14 We point out that time is not an inherent element of the right to bring a postconviction petition and the time limitations provided in the Act are to be considered affirmative defenses that can be raised, waived, or forfeited by the State. People v. Boclair, 202 Ill. 2d 89, 101, 789 N.E.2d 734, 742 (2002). The State raised the issue of timeliness; therefore, defendant was required to allege “facts showing that the delay was not due to his *** culpable negligence.”
¶ 16 On June 25, 2012, Miller was decided. Defense counsel amended the petition by incorporating Miller. On July 1, 2014, approximately three months after our supreme court‘s decision in Davis, which recognized the “new substantive rule” established in Miller, and held it applies retroactively, defense counsel amended the petition by supplementing it with a copy of Davis. The circuit court conducted a hearing and entered a written order on August 28, 2014, ordering a new sentencing hearing. While we agree with the trial court that there is a lack of culpable negligence on the part of defendant which excuses the delay in filing, even assuming arguendo the circuit court incorrectly ruled on that issue on January 19, 2011, we cannot ignore defendant‘s new claim based upon Davis.
¶ 17 In general, a “claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.”
“Only one petition may be filed by a petitioner under this Article without leave of the court. Leave of court may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure. For purposes of this subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process.”
725 ILCS 5/122-1(f) (West 2012) .
Here, the new substantive rule proclaimed in Miller establishes cause because it was not available earlier to counsel. Prejudice is established because the new rule has been deemed by our supreme court to apply retroactively. Davis, 2014 IL 115595, ¶ 42, 6 N.E.3d 709. Therefore, we agree with defendant that even if the trial court erred in its January 19, 2011, ruling and the trial court should have dismissed defendant‘s postconviction petition as untimely filed, defendant‘s third amended petition nevertheless warrants relief as a successive petition.
¶ 18 In Davis our supreme court firmly established that Miller applies retroactively to cases on collateral review. Nevertheless, the State asks us to hold our decision in this case in abeyance because the United
¶ 19 Where our supreme court has declared the law on any point, it alone can modify or overrule its previous opinion, and the appellate districts are bound to follow such decision. Agricultural Transportation Ass‘n v. Carpentier, 2 Ill. 2d 19, 27, 116 N.E.2d 863, 867 (1953). Our supreme court‘s decision in Davis is clear, and it is binding on us. Accordingly, defendant is entitled to a new sentencing hearing.
¶ 20 For the foregoing reasons, we hereby affirm the judgment of the circuit court of St. Clair County and remand for a new sentencing hearing pursuant to Miller and Davis.
¶ 21 Affirmed and remanded.
Opinion Filed: September 11, 2015
Justices: Honorable Richard P. Goldenhersh, J. Honorable Thomas M. Welch, J., and Honorable Melissa A. Chapman, J., Concur
Attorneys for Appellant: Hon. Brendan F. Kelly, State‘s Attorney, St. Clair County Courthouse, 10 Public Square, Belleville, IL 62220, Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Jennifer Camden, Staff Attorney, Office of the State‘s Attorneys Appellate Prosecutor, 730 East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
Attorneys for Appellee: Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy Defender, Alexander G. Muntges, Assistant Appellate Defender, Office of the State Appellate Defender, Fifth Judicial District, 909 Water Tower Circle, Mt. Vernon, IL 62864