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SECOND DIVISION
October 30, 2001

OPINION UPON DENIAL OF REHEARING

JUSTICE GORDON delivered the opinion of the court:

NATURE OF THE CASE

This appeal is from a summary dismissal of defendant(hereinafter "petitioner") Sherman Scullark's pro se post-conviction petition pursuant to section 122-2.1(a)(2) of thePost-Conviction Hearing Act (725 ILCS 5/122-2.1(a)(2)(West 1998)on the grounds that it was time barred and therefore did notrequire that the merits be addressed.

Substantively the petition alleges, inter alia, that at thetrial the State knowingly elicited perjured testimony from amaterial witness and that several of petitioner's co-defendantswho pled guilty have now stated that petitioner was not involvedin the crime. On appeal, petitioner argues that his failure tofile the petition in a timely manner was not due to his culpablenegligence and that his failure to include allegations that hewas not culpably negligent in his petition should not result inits dismissal. Additionally, in supplemental briefs petitionercontends that he is entitled to a new sentencing hearing based onthe supreme court's holding in Apprendi v. New Jersey, ___ U.S.___, 120 S.Ct. 2348 (2000).

BACKGROUND

In the underlying trial it was adduced that petitioner was ahigh ranking functionary of a street gang known as the"Conservative Vice Lords." He actively participated in thepunishment, which in the vernacular of the street, is referred toas a "violation," of a fellow gang member. The "violation"involved the restraining, beating, transporting and ultimatelykilling of the victim. On June 7, 1995, plaintiff was convictedof murder and aggravated kidnaping for which he was sentenced tonatural life imprisonment on August 29, 1995. The full factorsof the underlying trial are summarized in the non-published orderpursuant to Supreme Court Rule 23 entered by this court on May21, 1997, affirming the conviction and need not be restated here. See People v. Mathews and Scullark, Nos. 95-3207 & 95-4010(cons.) (1997) (unpublished order under Supreme Court Rule 23),appeal denied, 178 Ill. 2d 589, 699 N.E.2d 1035 (1998).

On January 16, 1999, petitioner filed a motion to extend thetime for filing his post-conviction petition. In that motion heaverred that between May 26, 1998, and November 25, 1998, he wasplaced in segregation and was deprived of his legal materials,including his then in-progress post-conviction petition. Themotion also averred that petitioner then had no access to theprison library because of a prison lock-down. On February 10,1999, the trial court denied petitioner's motion to extend thepetition's filing date. On February 11 petitioner was givenaccess to his legal materials and he proceeded to file his post-conviction petition on February 18. The petition did not on itsface contain any facts sufficient to explain its late filing. OnMarch 15, 1999, the trial court summarily dismissed the petitionon the grounds that it was time-barred.

Petitioner never attempted to amend his post-convictionpetition. However, on April 23, 1999, petitioner filed a motionto reconsider in which he alleged that prison officials hadmisplaced his legal papers and materials when they confiscatedthem and were unable to locate them until January 27, 1999, andthat petitioner first received access to those materials onFebruary 11, 1999. The motion to reconsider also alleged that onNovember 30, 1998, petitioner filed a grievance in an attempt tolocate his legal papers which were misplaced. On May 5, 1999,petitioner's motion to reconsider was denied. This appealfollowed.

ANALYSIS

The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.(West 1998)), provides for a three step process in whichpetitions for post- conviction relief are adjudicated. "Thefirst step requires the trial court to consider the petition todetermine whether it is frivolous or patently without merit. Ifit is, the petition is dismissed." People v. Hernandez, 283 Ill.App. 3d 312, 316, 669 N.E.2d 1326, 1329 (1996); 725 ILCS 5/122-2.1(a)(2)(West 1998). At this first stage of the process, thecourt evaluates the petition without further input from thepetitioner or any participation by the State. People v. Oury,259 Ill. App. 3d 663, 667-68, 631 N.E.2d 822, 825 (1994). Tosurvive stage one, the petition must only provide the gist of aconstitutional claim. People v. DeSavieu, 256 Ill. App. 3d 731,733, 628 N.E.2d 1117, 1119 (1993). The court may also dismissthe petition as untimely at the first stage. People v. Wright,189 Ill. 2d 1, 11, 723 N.E.2d 230, 237 (1999). The dismissal ofa petition pursuant to section 122-2.1(a)(2) is reviewed de novo. People v. Coleman, 183 Ill. 2d 366, 388, 701 N.E.2d 1063, 1075(1998).

"If the court determines at [the] first stage that thepetition is not frivolous or patently without merit,then at the second stage the court may appoint counselto represent an indigent defendant and counsel willhave the opportunity to amend the post-convictionpetition. The State may then move to dismiss thepetition. The third and final stage is an evidentiaryhearing if the court has not dismissed the petition onthe State's motion." People v. Hernandez, 283 Ill. App.3d 312, 316, 669 N.E.2d 1326, 1329 (1996).

The due date for the filing of a post-conviction petitionvaries depending on several factors. Where a petition for leaveto appeal to the Illinois Supreme Court is filed, thepetitioner's post-conviction petition is due either three yearsafter his conviction or six months after his petition for leaveto appeal is denied, whichever is sooner. 725 ILCS 5/122-1(c)(West 1998). However, the Post-Conviction Hearing Act provides a"safety valve" provision for petitioners who do not file in atimely manner. Under this "safety valve" provision, thepetitioner may be excused from failing to file in a timely mannerif he establishes that he was not culpably negligent in hisfailure to file on time. 725 ILCS 5/122-1(c)(West 1998).

Petitioner first argues that his failure to includeallegations in his petition that he was not culpably negligentshould not result in summary dismissal under section 122-2.1(a)(2). We agree.

We first note that the plain language of the Post-ConvictionHearing Act does not require that the allegations of a lack ofculpable negligence be in the petition. Rather, the statutestates that the deadlines given will apply "unless the petitioneralleges facts showing that the delay was not due to his or herculpable negligence." 725 ILCS 5/122-1(c)(West 1998). Whilesome courts have construed this to be a requirement that theallegations of lack of culpable negligence appear in the petitionitself, (People v. Caraballo, 304 Ill. App. 3d 288, 290-91, 710N.E.2d 560, 563 (1999), vacated by, 187 Ill. 2d 574, 722 N.E.2d1142 (2000)) others appear to offer a more flexible construction(People v. Bates, 124 Ill. 2d 81, 88, 529 N.E.2d 227, 230 (1988)(dismissal of petition as untimely upheld where the petition "wasnot accompanied by *** such allegations" (Emphasis added.));Caraballo, 304 Ill. App. 3d at 293, 710 N.E.2d at 564 (Homer, J.,dissenting) (stating that it is significant that the legislature"focused on the allegations of the petitioner as opposed to thoseof the petition")), indicating that the allegations of a lack ofculpable negligence need not actually appear in the petitionitself.

Moreover, even if it is necessary for the allegations to beincluded in the petition, petitioner need not allege a lack ofculpable negligence at the outset, as the petition may be lateramended to include such allegations. Wright, 189 Ill. 2d at 11,723 N.E.2d at 237. The Act provides that the "court may in itsdiscretion make such order as to amendment of the petition *** asshall be appropriate, just and reasonable and as is generallyprovided in civil cases." 725 ILCS 5/122-5 (West 1998). Generally, when a party asks to amend a complaint, leave to do sois freely given. "A circuit court abuses its discretion if itrefuses to allow a plaintiff to amend his complaint when a causeof action can be stated if the complaint is amended." Droen v.Wechsler, 271 Ill. App. 3d 332, 335, 648 N.E.2d 981, 984 (1995).

"[T]he trial court should exercise its discretionliberally in favor of allowing amendments if allowingthe amendment will further the ends of justice. [Citation.] The most important question is whetheramendment will be in furtherance of justice andamendment of defective pleadings should be permittedunless it is clear that the defect cannot be curedthereby. Any doubts should be resolved in favor ofallowing amendments." Cantrell v. Wendling, 249 Ill.App. 3d 1093, 1095, 620 N.E.2d 9, 11 (1993).

Our supreme court has recently so indicated that a post-conviction petition should not be dismissed for failure to allegea lack of culpable negligence in the failure to file in a timelymanner if the petitioner is able to amend his petition to includesuch allegations. In People v. Wright, 189 Ill. 2d 1, 11, 723N.E.2d 230, 237 (1999), our supreme court held that thelimitations period is not jurisdictional, but is analogous to astatute of limitations and is to be dealt with as an affirmativedefense by the State. Moreover, it may not be raised for thefirst time on appeal by the State because to do so would deprivethe petitioner of an opportunity to avoid dismissal by amendinghis petition. The court reasoned:

"By not raising this issue until the cause was onappeal, the State has effectively precluded defendantfrom seeking to amend his petition to allege factsdemonstrating that the late filing was not caused byhis culpable negligence. While we recognize thatsection 122-1 requires the defendant to allege thefacts demonstrating a lack of culpable negligence, wedo not believe that this requirement allows the Stateto wait until an appeal to raise an affirmative defensethat the defendant may be able to avoid by amending hispetition." Wright, 189 Ill. 2d at 11, 723 N.E.2d at230, 236.

Wright thus indicates that if the petition is unsuccessfuldue to a failure to include allegations of a lack of culpablenegligence, the petitioner must be given an opportunity to amend. The logical implication of this holding is that it is notstrictly necessary for the petitioner to plead a lack of culpablenegligence until the issue has been raised by the State (or bythe Court which may dismiss for lack of timeliness in the initialsummary hearing without the State's motion), at which point thepetitioner should be allowed to amend his petition.⁽¹⁾

In this case, however, petitioner did not ask to amend hispetition and no motion to amend or amended pleading was filed. However, petitioner did file a motion to reconsider whichcontained the allegations that he was free from culpable neglectin failing to file his petition in a timely manner. Specifically, the motion to reconsider alleged that he was placedin segregation from May 26, 1998, until November 25, 1998, andwas denied access to his legal materials, including his in-progress petition until February 11, 1999. Despite the labelgiven to it, we find that the court erred in not considering thismotion as it would consider a motion to amend the pleadings. Themotion to reconsider contained all of the factual allegationsnecessary to amend the petition. We do not believe thatpetitioner should be summarily deprived of his ability to pursuepost-conviction relief simply because he neglected to put thecorrect label on his motion. See People v. Stice, 168 Ill. App.3d 662, 664, 523 N.E.2d 1054, 1055 (1988) (document entitled"Motion to Dismiss" treated as a motion to suppress because the"court prefers to exalt substance over form").

Moreover, even if the motion to reconsider is not consideredto be a motion to amend, petitioner should still be permitted toamend his petition on remand because his motion forreconsideration alleged facts explaining why he was not culpablynegligent. The situation presented to the court in Ogle v.Hotto, 273 Ill. App. 3d 313, 652 N.E.2d 815 (1995), is closelyanalogous to the situation in the case at bar. In Ogle, theplaintiff's complaint for legal malpractice was filed after thelimitations period lapsed. The plaintiff's complaint failed toallege sufficient facts to show that the plaintiff's late filingwas attributable to a late discovery of her cause of action so asto come within the discovery rule. The court dismissed thecomplaint as time-barred and the plaintiff did not file a motionto amend the complaint. The plaintiff did, however, file amotion to reconsider which contained allegations sufficient tosatisfy the discovery rule. The court held that where theplaintiff for the first time alleges that the late filing of hisclaim was attributable to the late discovery of the action by wayof a motion to reconsider, the court is obligated to grant leaveto amend the complaint to so provide even though no formalrequest for such leave was made. The court then remanded thecase "to allow plaintiff an opportunity to amend her complaintand plead the discovery rule with more specificity." Ogle, 273Ill. App. 3d at 325, 652 N.E.2d at 823 (1995).

The case at bar is similar to Ogle in that the plaintifffailed to plead his lack of culpable negligence as an exceptionto a statute of limitations. His complaint was dismissedpursuant to the statute of limitations and he failed to ask forleave to amend but presented the facts supporting the exceptionfor the first time in a motion for reconsideration. Accordingly,if the reasons given in petitioner's motion to reconsider aresufficient we should, as in Ogle, remand this matter to permitthe petitioner to amend his petition. See 155 Ill. 2d R.366(a)(5) ("reviewing court may, in its discretion, and on suchterms as it deems just, *** enter any judgement and make anyorder that ought to have been given or made, and make any otherand further orders and grant any relief *** that the case mayrequire").

We must therefore next consider whether those allegations aspresented in his motion to reconsider are sufficient to establisha lack of culpable negligence so as to avoid summary dismissal ofhis petition on the ground that it was time-barred.

Petitioner next argues that because he was placed insegregation and his property including his in-progress petitionwas confiscated until after the petition was due, he was notculpably negligent in his late filing of that petition. Weagree.

The resolution of this issue turns on what is meant by theterm "culpable negligence" in section 122-1(c) of the Post-Conviction Hearing Act. Illinois courts have not preciselydefined the meaning of "culpable negligence" although it has beenobserved that the lack of culpable negligence is a difficultstandard for a petitioner to overcome. See People v. Davis, 312Ill. App. 3d 1117, 1119, 728 N.E.2d 778, 780 (2000) ("A review ofthe case law shows that freedom from culpable negligence is verydifficult to establish"), overruled on other grounds, People v.Rissley, No. 82536, slip op. at 11 (March 15, 2001); see, e.g.,People v. Montgomery, 45 Ill. 2d 94, 96, 256 N.E.2d 802, 803(1970) (petitioner culpably negligent even where court found thathis psychiatric reports "generally indicate a condition of mentaldisturbance"); People v. Lee, 292 Ill. App. 3d 941, 688 N.E.2d673 (1997) (incorrect advice of counsel regarding limitationsperiod insufficient to establish a lack of culpable negligence). However, this narrow application of the culpable negligencestandard has met significant criticism. See People v. Perry, 293Ill. App. 3d 113, 118, 687 N.E.2d 1095, 1098-99 (1997) (Zwick,J., dissenting) ("the courts have universally emasculated the'absence of culpable negligence' language in the statute ***[which] effectively nullifies the intent of the legislature asexpressed in the clear statutory language"); see also People v.McClain, 292 Ill. App. 3d. 185, 190-93, 684 N.E.2d 1062, 1065-67(1997) (Green, J., dissenting). Furthermore, our courts haveheld that even though the standard is high, it should not be sohigh as to eviscerate the provision of the Act allowing for latefiling where culpable negligence is not present. Davis, 312 Ill.App. 3d at 1119, 728 N.E.2d at 781 (reversing trial court'sfinding of culpable negligence and holding that the culpablenegligence standard "should not *** be so difficult as to renderthe provision a nullity").

Our analysis of the plain meaning of the term "culpablenegligence" is consistent with the holding in Davis that thestandard should not be impossibly high. While our courts havenot defined "culpable negligence," our courts have defined"negligence" in other contexts as "the failure to do somethingwhich a reasonably careful person would do, or doing somethingwhich a reasonably careful person would not do." Vinke v. ArtimTransportation System, Inc., 87 Ill. App. 3d 400, 406, 408 N.E.2d1112, 1117 (1980); accord Hack v. New York, Chicago & St. LouisRailroad Co., 27 Ill. App. 2d 206, 216, 169 N.E.2d 372, 376(1960); Black's Law Dictionary 1032 (6^th ed. 1990).

However, the Act does not merely refer to "negligence" butto "culpable negligence" and the word "culpable" must be held tomean something. People v. McClain, 292 Ill. App. 3d 185, 190, 684N.E.2d 1062, 1066 (1997) (Green, J., dissenting) ("No word in astatute should be deemed meaningless"); accord Collins v. Boardof Trustees of the Firemen's Annuity & Benefit Fund, 155 Ill. 2d103, 111, 610 N.E.2d 1250, 1253 (1993) ("no word or paragraph [ofa statute] should be interpreted so as to be renderedmeaningless"). The dictionary defines "culpable" as"[r]esponsible for wrong or error; blameworthy." The AmericanHeritage Dictionary 348 (1982); see also Collins, 155 Ill. 2d at111, 610 N.E.2d at 1253 (statutory language "is to be given itsplain or ordinary and popularly understood meaning").

Thus, we conclude that by defining the standard as a lack of"culpable negligence," the legislature intended to holdpetitioners to a lower degree of care than mere negligence. Inother words, to be "culpably negligent" a petitioner would needto be more than merely negligent. McClain, 292 Ill. App. 3d 185,190-91, 684 N.E.2d 1062, 1066 (Green, J., dissenting) ("In usingthe word 'culpable' as an antecedent to the word 'negligence' insection 122-1 of the Act, the General Assembly must have intendedto refer to a type of negligence that is quite severe").

Courts of other states which have defined "culpablenegligence" in similar contexts appear to have reached similarconclusions. In Holway v. Ames, 60 A. 897, 100 Me. 208 (Me.1905), the Supreme Judicial Court of Maine defined "culpableneglect" in an analogous context as "less than grosscarelessness, but more than the failure to use ordinary care." Holway, 60 A. at 898, 100 Me. 208.

The term "culpable negligence" has also been defined by manycourts in many other, less analogous contexts. However, thethread running through all of these definitions is that "culpableneglect" is something more than mere neglect or more than a merefailure to use ordinary care. See, e.g., Ross v. Baker, 632 So.2d 224, 226 (Fla. Dist. Ct. App. 1994) ("Culpable negligence isnegligence of a gross and flagrant character which evinces areckless disregard for the safety of others"), implied overrulingon other grounds, Stucki v. Hopkins, 691 So. 2d 560 (1997); Statev. Giordano, 635 A.2d 482, 484 (N.H. 1993) ("Culpable negligenceis something more than ordinary negligence, mere neglect, or thefailure to use ordinary care-it is negligence that is censorious,faulty or blameable"); 1 R. Rawle, Bouvier's Law Dictionary 736(3^rd rev. 1914) ("culpable neglect would seem to convey the ideaof neglect for which he was to blame as is ascribed to his owncarelessness, improvidence or folly").

In light of the preceding discussion of the meaning of"culpable negligence," it would seem that where a prisoner isprevented by the actions of prison authorities from filing hispetition on the last timely day, he is not culpably negligent. Where a prisoner is placed in segregation and such segregation isnot the foreseeable result of his own misconduct, it is as if thedeadline for the filing of the petitioner's petition was moved upto the date on which he was placed in segregation without warningor notice.⁽²⁾ A prisoner's failure to file on time can hardly beconsidered to be "more than the failure to use ordinary care"(Holway, 60 A. at 898, 100 Me. At 208), or "negligence of a grossand flagrant character" (Ross, 632 So. at 226), where he isprecluded from filing by the acts of his prison custodians. Thisis consistent with the prior statements of our court that "incases where the record contains evidence that the lock-downprevents a defendant from having a 'meaningful opportunity' toprepare a timely postconviction petition, the delay is not theresult of the defendant's culpable negligence." People v. VanHee, 305 Ill. App. 3d 333, 337, 712 N.E.2d 363, 367 (1999);accord Mitchell, 296 Ill. App. 3d at 933, 696 N.E.2d at 367; seealso Rissley, slip op. at 9 (citing Van Hee and Mitchell withapproval).

Thus, we hold that where a petitioner who has begun work ona post-conviction petition is placed in segregation through noforeseeable fault of his own or otherwise prevented from filinghis petition for a period of time until and including the lastday of the period in which he may timely file, his failure tofile in a timely manner is not culpable negligence. To holdotherwise would mean, for example, that a petitioner whocompleted a petition even several months before it was due andwas placed in segregation immediately after finishing thepetition but before he was able to file it and remained unable tofile it until after the deadline, would be culpably negligent. Under Van Hee, Mitchell and Davis, such a holding would be undulyharsh, flaunt the plain meaning of the term "culpable negligence"and set the standard for late filing so high as to "render theprovision a nullity" (Davis, 312 Ill. App. 3d. at 1119, 728N.E.2d at 780). Van Hee, 305 Ill. App. 3d at 337, 712 N.E.2d at367; Mitchell, 296 Ill. App. 3d at 933, 696 N.E.2d at 367.

In the case at bar, petitioner was placed in segregation byprison authorities on May 26, 1998, and had his petition andother property confiscated after he began work on his petition. He remained in segregation until November 25, 1998, well afterhis petition was due.⁽³⁾ Furthermore, petitioner's property,including the in-progress petition, was not returned to him untilFebruary 11, 1999, due to its being misplaced by prisonofficials. Because of his segregation status and because hisproperty was taken from him, petitioner was not able to file hispetition on any date after the date he was placed in segregation. Thus, the filing date for his petition was effectively movedforward to the day he was placed in segregation.

The cases cited by the State in opposition to this holdingare clearly distinguishable. In People v. Perry, 293 Ill. App.3d 113, 687 N.E.2d 1095 (1997), the court held that thepetitioner was culpably negligent in filing his petition late. The petitioner in Perry gave two reasons for his delay in filinghis petition: (1) the prison handbook stated that he had 10 yearsin which to file while the legislature had changed the period tothree years; and (2) that the fact that the prison was on "lock-down" restricted his access to the prison library. Perry, 293Ill. App. 3d at 116, 687 N.E.2d at 1097. The court rejected thefirst argument, stating that as the petitioner had not presentedevidence that the prison library did not contain accurateinformation regarding the time period for filing a petition hefailed to show that he was not provided with accurateinformation. The court also rejected the second argument becausethere were several month long periods when the prison was not on"lock-down" giving the petitioner ample time to prepare hispetition and to access the library.

Perry is distinguishable from the case at bar for tworeasons. First here, unlike in Perry, the effective change inthe deadline for filing did not occur because of a statutorychange. Prisoners (like other litigants) are held responsiblefor knowing the law (which is a matter of public record,accessible in a law library). It is quite another thing to holdthat a prisoner is nevertheless responsible, where hissegregation status is not the foreseeable result of his ownconduct, for knowing in advance the minds of prison officials asto when and how long he will be placed in segregation. Secondly,while petitioner in this case was not in segregation for theentire time before his petition was due, there is nothing inPerry to indicate that the prison was on lock-down on the datewhich the petition was due. Thus Perry does not present asituation where the deadline for the filing of the petition waseffectively advanced due to the "lock-down" or segregation statusof the prisoner. Rather, the issue in Perry was lack of accessto the law library due to "lock-down," which is not at issuehere.

People v. Mitchell, 296 Ill. App. 3d 930, 696 N.E.2d 365(1998), is also distinguishable. In Mitchell, the petitionerargued that he was not culpably negligent in filing his post-conviction petition 5