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No. 3--02--0297

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

JUSTICE HOLDRIDGE delivered the Opinion of the court:

The defendant, DeWayne C. Wilburn, was convicted ofaggravated battery with a firearm and armed violence. 720 ILCS5/12--4.2; 33A--2 (West 1994). The trial court sentenceddefendant to 25 years' imprisonment on each offense, to be servedconsecutively. Defendant filed an amended postconvictionpetition, which was dismissed as untimely. Defendant appeals,contending the trial court erred in dismissing his petition. Wereverse the trial court's judgment, vacate defendant's sentenceon his armed violence conviction and remand for resentencing.

Defendant was convicted of aggravated battery with a firearmand armed violence based on an incident in which he shot thevictim in the leg with a handgun and robbed him of approximately$45 in cash. Defendant was sentenced on February 7, 1996, toconsecutive 25-year terms of imprisonment.

At that time, armed violence with a handgun was punishableby 15 to 30 years' imprisonment. 720 ILCS 5/33A--3(a) (West1996). The legislature enacted this sentencing provision byPublic Act 88--680 (Pub. Act 88--680, eff. January 1, 1995).Prior to the enactment of Public Act 88--680, the sentencingrange for armed violence with a handgun was 6 to 30 years'imprisonment. 720 ILCS 5/33A--3(a); 730 ILCS 5/5--8--1(a)(3)(West 1992).

Defendant's convictions were affirmed on appeal. People v.Wilburn, No. 3--96--0224 (1997) (unpublished order under SupremeCourt Rule 23). Our supreme court denied defendant's petitionfor leave to appeal on October 1, 1997. On April 26, 2001, defendant filed a pro se petition seekingrelief pursuant to the Post-Conviction Hearing Act. 725 ILCS5/122--1 et seq. (West 2000). The trial court appointed counselfor defendant, and an amended petition was filed. In his amendedpetition, defendant asserted his armed violence sentence shouldbe vacated because Public Act 88--680, which amended thesentencing provisions for armed violence, had been heldunconstitutional in People v. Cervantes, 189 Ill. 2d 80, 723N.E.2d 265 (1999). Defendant further asserted that the latefiling of his postconviction petition was not due to his culpablenegligence because Public Act 88--680 was not declaredunconstitutional until after the deadline for filing his petitionhad passed.

The trial court granted the State's motion to dismissdefendant's petition, finding it was not timely filed.

On appeal, defendant contends the trial court erred indismissing his postconviction petition as untimely because thearmed violence sentencing statute was declared unconstitutionalafter the deadline for filing his petition had passed.

Under the Post-Conviction Hearing Act, proceedings must becommenced within:

"6 months after the denial of a petition for leave toappeal or the date for filing such a petition if noneis filed *** 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) (West2000). Lack of culpable negligence is difficult to establish. People v. Burris, 315 Ill. App. 3d 615, 734 N.E.2d 161 (2000). However, the delay in filing a postconviction petition may beexcused when the petition is based on the issuance of a new casewhich changes the law applicable to the defendant's claim. SeePeople v. Lee, 326 Ill. App. 3d 882, 762 N.E.2d 18 (2001); Peoplev. Hernandez, 296 Ill. App. 3d 349, 694 N.E.2d 1082 (1998).

We generally will not disturb a trial court's determinationas to whether a delay was a result of the defendant's culpablenegligence unless that determination is manifestly erroneous. People v. Caballero, 179 Ill. 2d 205, 688 N.E.2d 658 (1997). However, the trial court's decision in this case is not basedupon fact-finding or a credibility determination. Instead, theissue is whether the trial court correctly applied the law to theestablished facts. Therefore, the correct standard of review inthis case is de novo. See Branson v. Department of Revenue, 168Ill. 2d 247, 659 N.E.2d 961 (1995) (issues of fact are revieweddeferentially while questions of law are reviewed de novo);People v. Woods, 306 Ill. App. 3d 1144, 715 N.E.2d 1218 (1999).

It is undisputed that defendant's petition was not filedwithin the time limits set forth in the Act. Defendant assertshe was not culpably negligent in filing the petition after thestatutory time limit had expired.

Initially, we find defendant was not culpably negligent infailing to file his petition prior to the Cervantes decisionbecause his substantive claim was established by that decision. We conclude it would be unfair to require defendant to file hispetition based on the change in law occasioned by Cervantesbefore that decision was even issued.

However, defendant did not file his postconviction petitionuntil April 26, 2001, approximately 16 months after the Cervantesdecision was issued. In a similar case, this court held adefendant was not culpably negligent in filing his postconvictionpetition two months after the Supreme Court issued a decisionwhich established his claim. See Lee, 326 Ill. App. 3d 882, 762N.E.2d 18 (defendant filed a postconviction petition contestingthe constitutionality of his extended-term sentence following thedecision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d435, 120 S. Ct. 2348 (2000)). Additionally, the Second DistrictAppellate Court has held that a trial court did not err infinding a defendant was not culpably negligent in filing hispostconviction petition approximately 11 months after a change inthe law established his claim. Hernandez, 296 Ill. App. 3d 349,694 N.E.2d 1082 (defendant filed his postconviction petition 11months after our supreme court issued an opinion clarifying thelaw in the area of double jeopardy).

In sum, we conclude defendant was not culpably negligent infiling his petition 16 months after his claim was established inCervantes. Accordingly, the trial court erred in dismissingdefendant's petition as untimely.

Ordinarily, we would remand this matter to the trial courtfor a hearing at the third stage of postconviction proceedings. However, this matter does not present any factual dispute whichrequires an evidentiary hearing. Our supreme court has held thatPublic Act 88--680 violates the single subject rule of theIllinois Constitution and, therefore, is void. Cervantes, 189Ill. 2d 80, 723 N.E.2d 265. Defendant is entitled to beresentenced in accordance with the sentencing scheme in placeprior to the enactment of Public Act 88--680. See People v.Ruiz, 312 Ill. App. 3d 49, 726 N.E.2d 704 (2000) (when anunconstitutional amendment to a statute is enacted, the law priorto the adoption of the amendment remains in force). Therefore,we vacate defendant's sentence for armed violence and remand thematter to the trial court to resentence defendant under the priorversion of the sentencing statute. We make this ruling pursuantto our supervisory authority under Illinois Supreme Court Rule615(b)(2). 134 Ill. 2d R. 615(b)(2).

CONCLUSION

For the foregoing reasons, we reverse the judgment of theRock Island County circuit court dismissing defendant'spostconviction petition, vacate defendant's armed violencesentence and remand the matter to the trial court for resentencing.

Reversed; sentence vacated and cause remanded.

MCDADE, P. J., and SLATER, J., concur.