Find Legal Information

SIXTH DIVISION

August 3, 2001

Defendant Jose Cruz appeals from an order of the circuit courtof Cook County summarily dismissing his pro se petition forpostconviction relief as untimely filed. Defendant contends thatat the summary dismissal stage of postconviction proceedings, thetrial court was not permitted to dismiss his petition on the basisof timeliness. He further asserts that he sufficiently demonstrated that his late filing was not due to his own culpablenegligence. In a supplementary brief, he asserts that no matterwhat our decision may be with respect to the filing of his post-conviction petition, the rule announced in Apprendi v. New Jersey,530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), applies tohis case.

Following a jury trial, defendant was found guilty of firstdegree murder, attempted first degree murder and aggravated batterywith a firearm. In January 1996, he was sentenced to consecutiveterms of 60 years and 30 years, respectively. These terms were torun consecutively to a 15-year sentence he received for a separateconviction under case number 93 CR 13478. His convictions andsentences were affirmed on direct appeal. People v. Cruz, 298 Ill.App. 3d 1150 (1998).

On June 2, 1999, defendant filed a pro se petition for post-conviction relief alleging that trial counsel failed toinvestigate two possible alibi witnesses, would not allow him to testifyat trial, failed to challenge six jurors for cause, failed toobject to prejudicial and inflammatory photographs introduced bythe State, failed to argue that the evidence was insufficient tosustain a conviction and failed to object to suggestive and taintedidentification testimony. He further alleged that appellate counsel was ineffective for not raising any of these issues. Defendantacknowledged that his petition was untimely filed, but assertedthat it was not due to his culpable negligence because he could nothave demonstrated that his appellate counsel was ineffective untilDecember 2, 1998, when his petition for leave to appeal was deniedby the supreme court. He also stated in the petition and withattached correspondence that he had paid an attorney $1,000 to filea postconviction petition, but the attorney waited until May 5,1999, to tell him that he would not proceed in the matter becausehe found the possibility "of a successful post-conviction relief isuncertain" based on the matters defendant had presented. Thisattorney left open the question of successful collateral proceedings if defendant could supply any other materials.

The trial court summarily dismissed his petition as untimelyfiled, specifically noting that under the Post-Conviction HearingAct (725 ILCS 5/122-1 et seq. (West 1998),, defendant had almost afull two months to timely file from the date the supreme courtdenied his petition until January 30, 1999, the date on which thepetition was due under the time limits set forth by statute.

Citing case law, defendant asserts that because the trialcourt was barred from engaging in any fact-finding at the summarydismissal stage, it could not make the factual determination ofwhether or not he was culpably negligent in the late filing of hispetition.

Section 122-1(c) of the Post-Conviction Hearing Act (Act) (725ILCS 5/122-1(c) (West 1998)) provides that no proceedings may becommenced "more than 6 months after the denial of a petition forleave to appeal or the date for filing such a petition if none isfiled or more than 45 days after the defendant files his or herbrief in the appeal of a sentence before the Illinois Supreme Court(or more than 45 days after the deadline for the filing of thedefendant's brief with the Illinois Supreme Court if no brief isfiled) or 3 years from the date of conviction, whichever issooner." A defendant who files after the applicable time periodhas expired must allege facts demonstrating that the delay was notdue to his culpable negligence. People v. Perry, 293 Ill. App. 3d113, 115 (1997); 725 ILCS 5/122-1(c) (West 1998).

Pursuant to section 122-1(c), defendant was required to filehis petition for postconviction relief no later than January 30,1999. Accordingly, he was also required to allege facts demonstrating that the delay was not due to his culpable negligence. People v. Perry, 293 Ill. App. 3d 113, 115 (1997); 725 ILCS 5/122-1(c) (West 1998).

Illinois courts have been divided as to whether a trial courtmay summarily dismiss a postconviction petition solely on thegrounds of untimeliness. This issue is currently being consideredby the supreme court in the following consolidated appeals from theFourth and Fifth Appellate Districts: People v. Johnson, 189 Ill.2d 694 (2000); People v. McCain, 189 Ill. 2d 696 (2000); and Peoplev. Boclair, 189 Ill. 2d 690 (2000). However, in the recentlydecided case of People v. Lopez, 317 Ill. App. 3d 1047, 1052-53(2000) this court held that the "unique language" found in the Act"makes it possible for a trial court to summarily dismiss anuntimely petition where the defendant has not sufficiently allegeda lack of culpable negligence." In Lopez, this court reversed thetrial court's dismissal of the petition because the trial courtfailed to discuss the defendant's allegations of lack of culpablenegligence and remanded for the trial court to make such adetermination. Lopez, 317 Ill. App. 3d at 1054. Here, unlike inLopez, the trial court did make the determination that defendantfailed to allege sufficient facts to show that he was not culpablynegligent.

Defendant asserts that the trial court's determination wasincorrect. He contends that because he had hired an attorney tofile a postconviction petition, he was entitled to rely on thatattorney and therefore was not at fault for failing to file hispetition before the due date. He directs our attention to the factthat the attorney did not inform him until after May 5, 1999, thathe found no basis for a postconviction petition and therefore wouldnot proceed in the matter. He also asserts that because appellatecounsel did not inform him that the supreme court denied hispetition on December 2, 1998, in all fairness, he should not beheld to the January 30, 1999, due date.

Initially, we note that neither the postconviction petitionnor its attached correspondence shows whether defendant retainedcounsel before January 30, 1999. Further, even if he had retainedcounsel before the due date, he has provided us with no authorityfor his contention that he was entitled to rely totally uponcounsel to timely file his petition thereby excusing any action onhis part during the appropriate time frame. In fact, recent caselaw clearly holds that the opposite is true. See People v.Rissley, No. 82536, slip op. at 11 (March 15, 2001) ("[r]eliance onadvice of counsel does not constitute a lack of 'culpablenegligence' sufficient to excuse an untimely filing of a postconviction petition").

He has also cited no authority to support his suggestion thatthe attorney was required to file a petition where the attorneyfound no basis to do so. Finally, we find that he has citednothing to support his contention that because he did not know thatthe supreme court had denied his petition for leave to appeal andtherefore did not know that appellate counsel was ineffective untilsometime after December 2, 1998, he should not be held to thestatutory limitation for filing his postconviction petition. Section 122-1(c) of the Act clearly states that the petition mustbe filed on whichever of the specified dates occurs sooner, whichin this case was the three years after his conviction. Accordingly, we find that the trial court properly determined thatdefendant failed to demonstrate that he was not culpably negligentin the late filing of his petition.

For these reasons, the order of the circuit court of CookCounty summarily dismissing defendant's petition for postconvictionrelief is affirmed.

Defendant asserts that even if we affirm the trial court'sdismissal of his postconviction petition, we must determine theimpact of Apprendi upon his consecutive sentences. However, oursupreme court has recently determined that the narrow issue thatwas under consideration in Apprendi does not apply to whether adefendant was properly sentenced to consecutive terms. People v.Wagener, 196 Ill. 2d 269, 279-80 (2001). Accordingly, we finddefendant's argument without merit.

Affirmed.

Campbell, P.J., and Gallagher, J., concur.