Find Legal Information

THIRD DIVISION

May 15, 2002

No. 1-01-1003

JUSTICE WOLFSON delivered the opinion of the court:

In 1995, Clarence Gardner was convicted of first degreemurder and sentenced to 35 years in prison. We affirmed hisconviction and sentence on direct appeal in 1996. People v.Gardner, 282 Ill. App. 3d 209, 668 N.E.2d 125 (1996). InDecember 2000, Gardner filed a post-conviction petition, whichthe trial court denied as untimely. The trial court also foundhis petition frivolous and without merit. Gardner appeals thetrial court's summary dismissal, contending: (1) the delay infiling the petition was not due to his culpable negligence; and(2) under People v. Strain, 194 Ill. 2d 467, 742 N.E.2d 315(2000), he was denied his right to a fair trial by the trialcourt's refusal to ask questions concerning gang bias during voirdire. We reverse and remand for further proceedings.

FACTS

Gardner was convicted under a theory of accountability forthe shooting death of Joseph Waites, Jr. The murder was theresult of gang rivalry and much of the evidence at trial focusedon Gardner's affiliation with the Gangster Disciples street gang. The facts of the murder are set out in our opinion on directappeal. See Gardner, 282 Ill. App. 3d at 211-13.

During a pretrial conference, defendant sought to have thetrial court ask the following questions during voir dire:

"1. Have you ever known anyone who was in a gang?(If answer is yes, ask follow up questions.)

a. Do you think that someone who is in agang is necessarily a criminal?

b. Do you understand that it is not a crimejust to join a gang?

c. Do you understand that one member of agang is not legally responsible for the actions ofother gang members just because they are in thesame gang?

d. Would you be able to put aside anyfeelings you may have about gangs, and give thedefendant a fair trial based on the evidence?" (Emphasis added.)

At the hearing, the trial court discussed the questions withdefense counsel:

"THE COURT: *** Now, do you want me to ask aquestion of the jury - - well, I'll ask if you have aquestion of the jury which you want asked, I will askit. I could ask a question something on the order ofyou - - do you have any connection with gangs or with -- if there were any evidence of gang membership wouldthat influence your outcome or your verdict one way orthe other.

[DEFENSE COUNSEL]: We would like you to asksomething. And in fact, given that we didn't knowuntil today that we were going to be before you anddidn't know how you did voir dire, we had preparedcertain questions we were going to tender to the courtwhich include questions of that character. Theyinclude other questions, as well.

THE COURT: All right. On the proposed questions,I will ask this question. 'Have you or any member ofyour immediate family ever had any direct involvementwith a street gang.' I'm not going to ask questions A,B, C, and D. All right. I'll follow up on thatquestion. And if they answer yes, I'll see what itis."

During voir dire, the trial court first asked, "Have you orany member of your immediate family had any direct involvementwith a street gang?" No prospective juror said he or she had anydirect involvement with a gang. Next, the court asked, "Have youor any member of your family had any indirect involvement with astreet gang?" One juror answered "yes."

The following exchange took place between the trial courtand the juror who answered he had had indirect involvement with astreet gang:

"Q: You said you had some indirect involvementwith street gangs or [sic] member of your immediatefamily?

A: I grew up in *** Pilsen street area, alsoLittle Village area. *** I have five brothers. Indirectly we were involved with one gang or anotherindirectly during our youth.

Q: Is there anything about that that would preventyou from giving both sides a fair trial?

A: No, sir."

This juror eventually was excused for cause on the State'smotion. The motion was based on the juror's answer to adifferent question. The court did not ask any other questionsconcerning gang bias.

PROCEDURAL FACTS

After he was convicted and sentenced, defendant raisedseveral issues on direct appeal. One of the issues raised wasthe same one he raises here: the trial court erred in failing toask more questions surrounding gang bias during voir dire. Ondirect appeal we affirmed the trial court and found no error. Wefound, without extended discussion, the trial court's questionswere sufficient to address the possibility of juror bias.

Defendant filed a petition for leave to appeal to thesupreme court. The supreme court denied defendant's petition onOctober 2, 1996. People v. Gardner, 168 Ill. 2d 606, 671 N.E.2d736 (1996).

Defendant next filed a petition for writ of habeas corpus inthe Northern District Court of Illinois. Defendant again raisedthe voir dire issue. The District Court denied defendant'spetition. A Seventh Circuit panel reversed the lower court'sdecision, finding, in part, that the trial court erred inlimiting voir dire. Gardner v. Barnett, 175 F.3d 580 (1999). Onpetition for rehearing en banc, the Seventh Circuit vacated itsopinion and affirmed the lower court's denial of defendant'shabeas corpus petition. Gardner v. Barnett, 199 F.3d 915 (7thCir. 1999).

Defendant filed a petition for post-conviction relief inDecember 2001, six weeks after the Illinois Supreme Court decidedPeople v. Strain, 194 Ill. 2d 467, 742 N.E.2d 315 (2000) -- wheregang-related testimony is "pervasive," the failure to askquestions surrounding gang bias during voir dire amounts toreversible error.

Defendant recognized his petition was untimely, but said:

"[Defendant] has not been culpably negligent inpursuing his rights. Rather, [defendant] timelypresented his contention on direct appeal. [Defendant]brings this petition now because last month, in anothermatter, the Illinois Supreme Court clarified that[defendant] has been correct all along in hiscontention that his Illinois constitutional rights wereviolated by the trial court's refusal to permit voirdire concerning street gang bias. [Citing People v.Strain in a footnote.] It is on the basis of thatclarification that [defendant] seeks this post-conviction relief. [Defendant] could not have soughtthis post-conviction relief any earlier because theSupreme Court's clarification had not issued; he bringsthis petition approximately six weeks after theclarification."

The trial court summarily dismissed defendant's petition,finding it untimely. The court found defendant could not "escapethe fact that he was culpably negligent in filing the ***petition beyond the prescribed time period" because the Straincourt did not indicate its holding applied retroactively. Italso found the Strain issue barred by res judicata because it wasdecided on direct appeal.

DECISION

TIMELINESS OF PETITION

Defendant contends the trial court erred in finding hispetition untimely. Because he raised the voir dire issue ondirect appeal, defendant claims he would have been barred fromraising the issue in a post-conviction petition before Strain wasdecided by the supreme court.

The Post-Conviction Hearing Act (Act)(725 ILCS 5/122-1 etseq. (West 1998)) provides a three-stage process for adjudicationof post-conviction petitions. People v. Frieberg, 305 Ill. App.3d 840, 846, 713 N.E.2d 210 (1999). During the first stage thetrial court determines, without any input from the State orfurther pleadings from the defendant, whether the petition isfrivolous or patently without merit. Frieberg, 305 Ill. App. 3dat 847. At this first stage, the trial court must accept as trueall facts pleaded in the petition, unless the trial recordpositively rebuts these pleadings. People v. Coleman, 183 Ill.2d 366, 385, 701 N.E.2d 1063 (1998).

We review the summary dismissal of a post-convictionpetition de novo. People v. Simms, 192 Ill. 2d 348, 360, 736N.E.2d 1092 (2000).

Section 122-1(c) of the Act sets out a time limitation forpost-conviction relief. This section states, in pertinent part:

"(c) No proceedings under this Article shall becommenced more than 6 months after the denial of apetition for leave to appeal or the date for filingsuch a petition if none is filed or more than 45 daysafter the defendant files his or her brief in theappeal of the sentence before the Illinois SupremeCourt *** or 3 years from the date of conviction,whichever is sooner, unless the petitioner allegesfacts showing that the delay was not due to his or herculpable negligence." 725 ILCS 5/122-1(c)(West 1998).

Here, defendant was sentenced on March 24, 1995. Hispetition for leave to appeal was denied by the supreme court onOctober 2, 1996. The deadline for filing a timelypost-conviction petition under the Act would have been six monthslater, April 2, 1996. Defendant's petition was tardy by morethan five years.

However, defendant raises an interesting question: given thechange in the law represented by the Strain decision, can histardiness be excused?

In the only supreme court case in which this issue wasraised, People v. Jones, 191 Ill. 2d 194, 730 N.E.2d 26 (2000),the defendant's second, untimely post-conviction petition allegedhe was denied due process by the trial court's failure to conducta fitness hearing after it became aware the defendant was takingpsychotropic medication. The trial court summarily dismissed thedefendant's petition as untimely.

On appeal, the defendant argued his late filing should beexcused because the claims raised in the second petition werepredicated on the supreme court's decision in a case filed justtwo months before defendant filed his late petition. The supremecourt found it was not necessary to address this issue becausethe petition was procedurally barred by the rules governingsuccessive petitions. Jones, 191 Ill. 2d at 199.

In People v. Hernandez, 296 Ill. App. 3d 349, 694 N.E.2d1082 (1998), the defendant filed a post-conviction petition morethan four years after he was sentenced. The State filed a motionto strike the petition, arguing it was untimely. The trial courtconducted a hearing, and ruled the defendant's failure to file atimely petition was not due to his culpable negligence because ofthe "evolving nature" of the law on the issue he raised (whethera tax conditioned on commission of a crime violates the ban ondouble jeopardy). The appellate court affirmed:

"As petitioner points out, our supreme court didnot issue an opinion addressing this issue untilFebruary 1996 *** From these facts, we cannot say thatthe trial court manifestly erred in finding thatpetitioner had shown that the delay in filing thepetition was not due to his culpable negligence." Hernandez, 296 Ill. App. 3d at 352.

In Hernandez, the trial court's ruling was reviewed using a"manifest error" standard because the petition had reached thesecond stage of post-conviction proceedings and a hearing washeld. Here, we review the trial court's summary dismissal of thepetition de novo. Simms, 192 Ill. 2d at 360.

Showing a lack of "culpable negligence" has been notoriouslydifficult for defendants. See People v. Scullark, 325 Ill. App.3d 876, 883, 759 N.E.2d 565 (2001) (lack of culpable negligencestandard difficult to overcome). In Scullark, the defendantclaimed his tardy filing was not due to his culpable negligencebecause he was placed in segregation in prison and had no accessto legal materials during the period leading up to the filingdeadline. This court defined "culpable negligence" for the firsttime in Scullark:

"*** [T]he Act does not merely refer to'negligence' but to 'culpable negligence' and the word'culpable' must be held to mean something. [Cite.] Thedictionary defines 'culpable' as 'responsible for wrongor error; blameworthy.' [Cite.]

Thus, we conclude that by defining the standard asa lack of 'culpable negligence,' the legislatureintended to hold petitioners to a lower degree of carethan mere negligence. In other words, to be 'culpablynegligent,' a petitioner would need to be more thanmerely negligent." Scullark, 325 Ill. App. 3d at 884.

The Scullark court concluded that "culpable negligence" was" 'more than the failure to use ordinary care' " or " 'negligenceof a gross and flagrant character.' " Scullark, 325 Ill. App. 3dat 885, quoting Holway v. Ames, 60 A. 897, 898 (1905) and Ross v.Baker, 632 So. 2d 224, 226 (1994).

When applied to the facts of this case, the Scullarkdefinition makes it difficult to find defendant's failure to filea timely petition was due to his "culpable negligence." Asdefendant points out, he pursued the gang bias voir dire issue ondirect appeal, in a petition for leave to appeal the decision ondirect appeal, and before the federal court in a habeas corpusproceeding. His argument was rejected in each of these venues. Given that defendant raised the issue on direct appeal, defendantcould not have argued it again in a post-conviction petitionbefore the supreme court issued its decision in Strain because itwould have been barred by res judicata. See People v. Whitehead,169 Ill. 2d 355, 371, 662 N.E.2d 1304 (1996). We do not see howdefendant's failure to raise the issue yet again, in apost-conviction petition that would have been doomed to fail pre-Strain, constitutes "negligence of a gross and flagrantcharacter." We find the trial court erred in rejecting thepetition as untimely.

In so deciding, we do not intend to extend our lack ofculpable negligence finding beyond the facts of this case and theimportant right that is at stake -- the right of a defendant to"selection of an impartial panel of jurors, free from bias andprejudice." Strain, 194 Ill. 2d at 481.

RETROACTIVITY OF STRAIN

Defendant also contends the trial court erred in finding hispetition was frivolous and without merit. The trial court'sruling was premised on its finding that Strain could not beretroactively applied. The State agrees, contending Strainannounced a new rule which cannot be retroactively applied in apost-conviction proceeding. We disagree.

Decisions which announce "new rules" are not generallyapplied retroactively to cases pending on collateral review. People v. Moore, 177 Ill. 2d 421, 430, 686 N.E.2d 587 (1997). "[A] case announces a 'new rule' when it breaks new ground orimposes a new obligation on the state or federal government." Moore, 177 Ill. 2d at 430-31 (adopting the reasoning set out inTeague v. Lane, 489 U.S. 288, 301, 103 L. Ed. 2d 334, 109 S. Ct.1060 (1989)). If the result is not dictated by precedentexisting at the time the defendant's conviction becomes final,the case announces a "new rule." Moore, 177 Ill. 2d at 431. However, where a case simply applies a well-establishedconstitutional principle to govern a case which is closelyanalogous to those previously considered, it does not announce a"new rule" and it may apply to cases pending on collateralreview. Moore, 177 Ill. 2d at 431.

In Strain, the defendant appealed a first degree murderconviction, contending the trial court erred in refusing to askthe jury venire two questions he submitted concerning gang bias. At Strain's trial, the court asked each prospective juror"whether the juror, any member of the juror's family or a closefriend of the juror had ever been involved in a gang." Strain,194 Ill. 2d at 470. The trial court would not allow defensecounsel to ask whether the prospective jurors would finddefendant less believable if they learned that defendant belongedto a gang or whether the prospective jurors would finddefendant's membership in a gang made it more likely than notthat defendant was guilty of a gang shooting. Strain, 194 Ill.2d at 471.

The supreme court reversed the defendant's conviction andremanded for a new trial, finding the trial court erred inrefusing to ask the supplemental questions:

"Throughout its opening statement and closingargument, the State reminded the jurors of theimportance of gang testimony at trial. The jury heardtestimony from numerous police officers assigned togang units, police detectives and gang members, allcontending that a gang war was in effect between theGangster Disciples and the Black Disciples; that PerryAvenue was the dividing line between the two gangs; andthat defendant, intent on obtaining revenge against theGangster Disciples, made forays into Perry Avenue inhis capacity as a police informant, who gaveinformation leading to the arrest of members of theGangster Disciples, and as the shooter with the limpand the automatic weapon, who, eventually, shot Dow. Given this list of witnesses, the importance of gangtestimony at trial, and the prejudice which may attachto such testimony, the trial court should havequestioned the prospective jurors to determine whetherthey harbored any gang bias or prejudice." Strain, 194Ill. 2d at 479.

The supreme court premised its decision on Supreme CourtRule 431 (177 Ill. 2d R. 431), which outlines the procedure thetrial court is to follow during voir dire, and on case lawdiscussing the purpose of voir dire. Strain, 194 Ill. 2d at 467(purpose of voir dire is to ascertain information regarding biasand prejudice). The supreme court noted it had "recognized thatstreet gangs are regarded with considerable disfavor by othersegments of our society" in prior opinions. Strain, 194 Ill. 2dat 477, citing People v. Gonzalez, 142 Ill. 2d 481, 489, 568N.E.2d 864 (1991). It referred to supreme court cases andopinions issued by this court acknowledging "there may be strongprejudice against street gangs." Strain, 194 Ill. 2d at 477,citing People v. Patterson, 154 Ill. 2d 414, 458, 610 N.E.2d 16(1992); People v. Smith, 141 Ill. 2d 40, 58, 565 N.E.2d 900(1990); People v. Pogue, 312 Ill. App. 3d 719, 727, 724 N.E.2d525 (1999); People v. Jimenez, 284 Ill. App. 3d 908, 912, 672N.E.2d 914 (1996); People v. Martin, 271 Ill. App. 3d 346, 355,648 N.E.2d 992 (1995).

The court's conclusion that Strain was "denied an informedand intelligent basis on which to assert challenges for cause orto exercise peremptory challenges" was based on "constitutionalsafeguards" granted the accused by Article I, sections 8 and 13,of the Illinois Constitution (Ill. Const. 1970, art. I,