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22 June 2000

JUSTICE HOPKINS delivered the opinion of the court:

Larry Whitford (defendant) appeals from the trial court's summary dismissal of hispostconviction petition pursuant to section 122-2.1(a)(2) of the Post-Conviction Hearing Act(Act) (725 ILCS 5/122-2.1(a)(2) (West 1998)). Within the initial-review period, the trialcourt dismissed the petition as untimely without making any determination as to the meritof the petition. On appeal, defendant argues that the trial court improperly dismissed hispetition as untimely and that he is entitled to an evidentiary hearing because he alleged thegist of a meritorious claim of a constitutional violation. The pivotal issue in this case iswhether a postconviction petition that states the gist of a meritorious claim should besummarily dismissed by the trial court during the initial-review stage, solely on the basis ofthe petition's untimeliness. We hold that it should not, and we reverse the trial court'ssummary dismissal.

On June 16, 1975, defendant pled guilty to one count of murder in exchange for theState's agreement to dismiss a second count of murder and to recommend a sentence of 40to 90 years' imprisonment. On July 24, 1975, after a hearing on mitigation and aggravation,defendant was sentenced to 30 to 100 years' imprisonment. Defendant and his attorneyswere admonished according to Supreme Court Rule 605(b) (145 Ill. 2d R. 605(b)).

On August 18, 1975, defendant's trial attorneys attempted to file a notice of appeal.On August 21, 1975, the Madison County Circuit Clerk mailed a letter to defendant atMenard Correctional Center. The letter from the clerk informed defendant that his notice ofappeal was insufficient and that he would have to file a motion to withdraw his guilty plea,"pursuant to Supreme Court Rule 605, which went into effect July 1, 1975."

Also in the record is a letter, dated August 21, 1975, but not file-stamped, fromdefendant's attorneys to Honorable John Gitchoff, the judge who presided over defendant'sguilty plea and sentencing hearings. The letter to Judge Gitchoff stated in pertinent part asfollows:

"It is my position and the position of my co-counsel, Paul Riley, that we neednot move to withdraw our client's plea of guilty entered in the above-referenced causein order to appeal the sentence imposed by you upon out [sic] client. We construeSupreme Court Rule 604(d) as requiring a Motion in the trial court following a pleaof guilty only where the Defendant wishes to withdraw his plea of guilty and to attackthe plea's validity; we do not construe said rule as requiring a Motion be filed in thetrial Court where a Defendant desires to appeal only the sentence imposed followingthe plea of guilty. We, therefore, ask that our previously filed Notice of Appeal fromthe sentence imposed by you be placed on file with the Court and that you direct theClerk of the Court to take the same action upon the Notice of Appeal which he wouldhave taken prior to the Supreme Court's enactment of their Rule 604(d)."

The next entry of record is the following docket sheet notation: "Counsel grantedanother 10 day extension to state facts for withdraw[al] of guilty plea." There is noexplanation of this notation in the record; it is not clear if the parties appeared before thecourt or if the trial judge simply made the notation without any sort of hearing. There is nocorresponding notice or indication that defendant or his attorneys were mailed a copy of thisdocket sheet entry or otherwise advised of its content. Defendant's attorneys did not file amotion to withdraw defendant's guilty plea and did nothing else to perfect defendant's appeal. Hence, defendant's case was never the subject of a direct appeal to this court.

Between September 22, 1975, and May 28, 1976, defendant filed three pro sepetitions requesting copies of the reports of proceedings in his case. Each petition was file-stamped, but none were noted on the docket sheets of defendant's court file. The court didnot take any action on the first two petitions, but it denied the third petition without statinga reason for the denial.

Defendant filed petitions for writs of mandamus on April 22, 1977, and December 16,1977. Via each of these documents, defendant requested the trial court to order the MadisonCounty Circuit Clerk to prepare and deliver to defendant copies of the transcripts andcommon law record of his case. In the first petition for writ of mandamus, defendant allegedthat he needed the records to "perfect his redress before the higher reviewing courts, and toseek other statutory relief, because his constitutional rights [were substantially violated]." The trial court did not take any action on this petition.

In the second petition for writ of mandamus, defendant again stated that he neededthe records because his constitutional rights were substantially violated. Defendant alsoalleged that his failure to file a timely notice of appeal and his failure to file a timely motionto withdraw his guilty plea were not due to his culpable negligence but were caused by thefailures of his attorneys and the trial court. The trial court took no action on defendant'ssecond petition for writ of mandamus.

On May 3, 1978, defendant filed his fourth petition seeking a report of proceedings. On the same date, the trial court finally ordered that defendant receive a copy of thetranscripts in this case. On July 10, 1978, a letter from defendant was filed. The letter isaddressed to the Madison County Circuit Clerk and states that over 60 days had passed sincethe court ordered that defendant receive his transcripts but that defendant had not yetreceived them. On July 16, 1978, the record of the proceedings was filed.

Between July 1978 and October 1997, a period of over 19 years, defendant took noaction and filed nothing in the trial court.

On October 15, 1997, defendant filed a pro se postconviction petition. The petitionis 21 pages long and includes numerous attachments. In the petition, defendant allegesseveral constitutional violations. The State filed a motion to dismiss the postconvictionpetition as untimely filed. The date on which the motion to dismiss was filed is not clearbecause the file stamp is too faint to read and the motion is not listed on any of the docketsheets in our record. On October 27, 1997, the trial court entered an order that summarilydismissed the postconviction petition without an evidentiary hearing. The trial court did notmake a finding as to the merit of the petition but found only that it was filed too late and thatit did not show that the "extreme delay in filing was not due to [defendant's] culpablenegligence."

Defendant filed a timely appeal from the dismissal order.

Defendant argues that the trial court improperly dismissed his postconviction petitionas untimely. The State counters that the trial court properly determined that defendant wasculpably negligent and that the court properly dismissed the petition on that basis. After theparties filed their briefs with this court, but before oral argument, the Illinois Supreme Courtfiled an opinion, People v. Wright, 189 Ill. 2d 1 (1999), that speaks to this issue.

In Wright, the court determined that "the time limit found in section 122-1 is a statuteof limitations" and that a defendant's failure to timely file a postconviction petition does notdeprive the trial court of jurisdiction to consider the petition. Wright, 189 Ill. 2d at 10; 725ILCS 5/122-1 (West 1998). Since the time limit of section 122-1 of the Act is notjurisdictional, the court reasoned that the State can waive the timeliness issue if it fails toraise it in the trial court.

The court explained its decision:

"Here, although the facts support the conclusion that defendant did not file hispetition within the time limits found in section 122-1, that section allows a defendantto file a petition outside the limitations period if the late filing is not due to thedefendant's culpable negligence. [Citation.] By not raising this issue until the causewas on appeal, the State has effectively precluded defendant from seeking to amendhis petition to allege facts demonstrating that the late filing was not caused by hisculpable negligence. ***

In reaching this conclusion, we caution that we are not limiting the trial court'sability, during the court's initial review of noncapital petitions (see 725 ILCS 5/122-2.1(a)(2) (West 1998)), to dismiss the petition as untimely. The import of ourdecision is simply that matters relating to the timeliness of a defendant's petitionshould first be considered in the trial court, either upon a motion by the State orpursuant to the duty imposed upon the trial court by section 122-2.1(a)(2).

***

In sum, while we believe that a defendant should plead facts demonstrating hislack of culpable negligence, we see no reason that this statute of limitations should be treated differently from any other. Thus, if the State wishes to challenge thetimeliness of a defendant's petition, it should raise that argument first in the trialcourt, where any amendments can be made and factual disputes resolved." SeeWright, 189 Ill. 2d at 11.

At the oral argument of the case sub judice, the State argued that although the timelimitation of section 122-1 is not jurisdictional, defendant nevertheless has the burden toshow in his petition why he should be allowed to file his petition late. In other words, theState argues that the trial court had the authority to dismiss the petition in the initial,summary-review stage, without an evidentiary hearing, solely on the ground the petition wasuntimely filed and that defendant did not plead facts to show why he was not culpablynegligent in filing late.

Since the oral argument of this cause, this court has examined this issue in threeseparate cases. See People v. Hill, No. 5-97-1082 (May 2, 2000); People v. Johnson, 312Ill. App. 3d 532 (2000); People v. McCain, 312 Ill. App. 3d 529 (2000). In each of theabove-cited cases, this court held that the trial court went beyond its authority when itdismissed untimely postconviction petitions in the initial, summary-review stage solely dueto untimely filing, without a determination that the petitions were frivolous or patentlywithout merit. See Hill, slip op. at 2; Johnson, 312 Ill. App. 3d at 533; McCain, 312 Ill.App. 3d at 531.

Thus, three cases from this district contradict the State's argument that the trial court properly dismissed defendant's petition as untimely without considering its merit. Therationale for this rule is expressed similarly in each of the three cases.

In McCain, we reasoned that during the summary-review stage, the trial court isrequired to make an independent assessment of the merits of the petition, without engagingin any fact-finding, and the State has no opportunity to raise any arguments against thepetition. McCain, 312 Ill. App. 3d at 530. If the trial court dismisses the postconvictionpetition as untimely without finding that it is frivolous or patently without merit, the courtexceeds its "very limited" role of determining if the petition states the gist of a meritoriousclaim of a constitutional deprivation, and the court assumes "the adversarial role of theprosecutor." McCain, 312 Ill. App. 3d at 531.

In Johnson, we again emphasized the fallacy of the trial court usurping the State'sfunction of raising the issue of the seasonableness of the claim. Johnson, 312 Ill. App. 3dat 534. "The question of the petition's untimeliness should await a responsive pleading fromthe State." Johnson, 312 Ill. App. 3d at 533. We determined that if the petition makes aviable claim of a constitutional deprivation or alleges compelling facts to demonstrate thedefendant's actual innocence, the State could then choose to waive the timeliness issue in theinterests of justice, but only if the court had not already dismissed the petition on thatground. See Johnson, 312 Ill. App. 3d at 534-35.

In Hill, we again focused on the State's lack of opportunity to respond to thepostconviction petition in the initial, summary-review stage, and we cited People v.Gaultney, 174 Ill. 2d 410, 418 (1996). Hill, slip op. at 2. We also noted that the trial courtis "foreclosed from engaging in any fact-finding or any review of matters beyond theallegations of the petition," and we cited People v. Coleman, 183 Ill. 2d 366 (1998). Hill,slip op. at 2. Relying upon our earlier decision in McCain, we found that "[t]hedetermination of whether a petitioner is culpably negligent in filing a late postconvictionpetition is a factual finding," which is prohibited during the initial, summary-review stage. Hill, slip op. at 2.

In all three cases, we found that the trial court erred in dismissing the defendants'postconviction petitions in the initial, summary-review stage without finding that thepetitions were frivolous or patently without merit. In Hill, we ultimately affirmed thedismissal, however, based upon our finding that the petition was frivolous and patentlywithout merit. Hill, slip op. at 2. In McCain and Johnson, we reversed the trial court'sdismissal and remanded the cases for further consideration in accordance with the Act,because in each of those cases the defendant stated the gist of a meritorious claim of aconstitutional deprivation. McCain, 312 Ill. App. 3d at 531; Johnson, 312 Ill. App. 3d at532, 535.

In this case, we further refine the rules set forth in McCain, Johnson, and Hill in lightof the supreme court's dicta in Wright that the trial court is not prohibited from dismissingan untimely postconviction petition during the initial, summary-review stage. Wright, 189Ill. 2d at 11. We find that the portion of the decision in Wright wherein the court states thatthe trial court should be allowed to dismiss a postconviction petition as untimely within theinitial, summary-review stage is dicta, and hence not controlling, for at least four reasons.

First, the court refers specifically to the initial, summary-review stage and also to theState's responsibility to file a motion to dismiss the petition as untimely. If the State files amotion to dismiss within the initial, summary-review stage, the motion is "premature andimproper under the Act." Gaultney, 174 Ill. 2d at 419. In Gaultney, the court cited Peoplev. Oury, 259 Ill. App. 3d 663 (1994), in support of the proposition that the State is notallowed to file a motion to dismiss the postconviction petition during the initial, summary-review stage. Gaultney, 174 Ill. 2d at 419.

In Oury, the court described the initial review of a postconviction petition as follows:

"[T]he trial court is not to decide the petition on the merits; instead, without inputfrom the State or further pleadings from the defendant, the court simply determinesif the petition on its face is frivolous or patently without merit. [Citation.] ***

***

The initial review of the petition must be made alone by the court inops cosilii,that is, without input from the State or further pleadings from the petitioner.[Citations.] The court's examination of the petition and the entry of an appropriateorder within the initial period are mandatory, and a trial court's noncompliance withthe statute will render a dismissal void. [Citation.]" Oury, 259 Ill. App. 3d at 667-68.

In Oury, the court went on to find that during the initial, summary-review stage, thetrial court has two options: (1) it can dismiss the petition as frivolous and patently withoutmerit, making the order final and appealable, or (2) it can order it docketed for furtherconsideration as provided by other sections of the Act. Oury, 259 Ill. App. 3d at 668-69.

Therefore, the supreme court's statement that the trial court is not prohibited fromdismissing a petition during the initial-review stage is not supported by its previous decision,Gaultney, or by Oury, the case upon which Gaultney relies.

A second reason that we consider that portion of the decision to be dicta is that it isinconsistent with the rest of the reasoning in Wright. In Wright, the court clearly expressesthe rationale that if the State is allowed to wait to raise the timeliness issue until the appellatecourt reviews the case, then the defendant's right to request leave to amend the petition tostate facts to show his lack of culpable negligence would be foreclosed. Wright, 189 Ill. 2dat 12. By the same token, a defendant's right to request leave to amend to show lack ofculpable negligence is also restricted if the trial court dismisses the petition in the initial,summary-review stage, since neither the defendant nor the State can file any furtherpleadings during this stage, and as soon as the summary-dismissal order is filed, it is finaland appealable. See Oury, 259 Ill. App. 3d at 668-69.

Since the issue of culpable negligence is an issue of fact (see McCain, 312 Ill. App.3d at 531), if the trial court summarily dismisses the petition based solely upon itsuntimeliness, then there is no opportunity for the defendant to show that he lacked culpablenegligence. If the petition is meritless, the dismissal is, of course, proper on that basis, andthe trial court's decision should ultimately be affirmed by the court of review. See Hill, slipop. at 2. However, if the petition makes a viable claim of a constitutional deprivation oractual innocence, then a summary trial court dismissal due to untimeliness at a time whenthe defendant cannot attempt to correct his mistake is unjust and unreasonable. See Johnson,312 Ill. App. 3d at 533; McCain, 312 Ill. App. 3d at 531.

The apparent inconsistency between the dicta of Wright referring to summarydismissal due to untimeliness and the latter portion of Wright is further highlighted whereinthe court stated, "[W]e see no reason that this statute of limitations should be treateddifferently from any other." Wright, 189 Ill. 2d at 12. However, allowing the trial court tosua sponte raise and decide the issue of compliance with a statute of limitations, without anyinput from either party, and without any method by which to reconsider that decision in thetrial court, makes the limitation provision of the Act an anomaly. No other statute oflimitations is construed this way, and trial courts are not allowed to decide any other statute-of-limitations issue sua sponte without any input from either party. See Wright, 189 Ill. 2dat 11 (the limitations period of the Act is an affirmative defense that the State must raise inthe trial court or the issue will be deemed waived on appeal); Wright, 189 Ill. 2d at 32(Freeman, C.J., specially concurring) ("Under today's opinion, it appears that the court inthese situations cannot, sua sponte, raise the matter [of the petition's timeliness]").

Finally, the language in Wright that refers to summarily dismissing postconvictionpetitions due to untimeliness is contrary to the statutory scheme. The summary-dismissalstatute, section 122-2.1(a)(2) of the Act, instructs the trial court, within the first 90 days afterthe petition is filed, to examine the petition and determine if it is frivolous or patentlywithout merit and, if so, to dismiss the petition. A separate section of the Act, section 122-1(c), instructs the imprisoned defendant on the time periods within which he may file apostconviction petition and alerts that defendant that he will not be allowed to file outsidethose time periods unless he alleges "facts showing that the delay was not due to his ***culpable negligence." 725 ILCS 5/122-1(c) (West 1998). If the legislature intended for thesummary-dismissal period to include a timeliness determination, the legislature would havewritten the two sections together. Since the two sections are separate and refer to differentresponsibilities of different entities, it is not reasonable to combine them to give trial courtsthe authority to sua sponte determine a factual issue from which the defendant cannot askfor trial court reconsideration.

We see a compelling rationale for separating the two provisions and not combiningthem within the same statutory provision: the timeliness of a postconviction petition, if nota jurisdictional requirement, does not rise to the same level of significance as does thequestion of whether an imprisoned defendant has been denied his constitutional rights or is innocent. If a court has jurisdiction to consider an untimely postconviction petition, then thefocus of the court, within the initial, summary-review stage, must remain singularly andfaithfully upon whether the petition's allegations, liberally construed and taken as true,"sufficiently demonstrate a constitutional infirmity" that requires relief under the Act. Coleman, 183 Ill. 2d at 380-81.

Therefore, we continue to adhere to the reasoning set forth in our recent cases ofMcCain, Johnson, and Hill and find that the trial court in the case at bar erred by summarilydismissing defendant's postconviction petition solely because it was filed late. We nextconduct a plenary review of the petition, its supporting documents, and the trial court recordto determine if the petition states the gist of a meritorious claim of a constitutionaldeprivation. See Coleman, 183 Ill. 2d at 388.

In Coleman, the supreme court explained this standard of review as follows:

"Due to the elimination of all factual issues at the dismissal stage of a post-convictionproceeding, the question is, essentially, a legal one, which requires the reviewingcourt to make its own independent assessment of the allegations. Thus, a court ofreview should be free to substitute its own judgment for that of the circuit court inorder to formulate the legally correct answer. *** A court of review has the samecapability as does the circuit court in the first instance to look to the allegations andconstrue them liberally in favor of the petitioner and as set forth in light of the trialrecord." Coleman, 183 Ill. 2d at 388.

To survive dismissal at this stage, a petition need only present the gist of aconstitutional claim. See People v. Porter, 122 Ill. 2d 64, 74 (1988). This is a low threshold;a defendant need only present a modest amount of detail and need not make legal argumentsor cite to legal authority. See Gaultney, 174 Ill. 2d at 418; Porter, 122 Ill. 2d at 74. Thepetition must be supported by "affidavits, records, or other evidence supporting itsallegations" or the petition "shall state why the same are not attached." 725 ILCS 5/122-2(West 1998). If the circuit court does not dismiss the petition pursuant to section 122-2.1,it is then docketed for further consideration and, if the defendant is indigent, the court isrequired to appoint counsel. See Gaultney, 174 Ill. 2d at 418.

Thus, our review is essentially the same as that required of the trial court. We are toreview the allegations of the postconviction petition, construing them liberally, focusing onwhether the petition states the gist of a meritorious claim of constitutional deprivation. Apostconviction petitioner is not entitled to an evidentiary hearing as a matter of right, but thesupreme court has repeatedly stressed that a hearing is required whenever the petitionermakes a substantial showing of a violation of constitutional rights. See Coleman, 183 Ill. 2dat 381. "To accomplish this, the allegations in the petition must be supported by the recordin the case or by its accompanying affidavits." Coleman, 183 Ill. 2d at 381. When assessingthe sufficiency of the allegations, the trial court and the court of review are to consider thepetition in light of the entire record. See People v. Vunetich, 185 Ill. App. 3d 415, 419(1989).

In his postconviction petition, defendant describes his efforts after he pled guilty:

"I sought to utilize the Constitutional Rights that the Illinois Statutes, IllinoisConstitution[,] and the U.S. Constitution afforded every individual who was confinedin a penal institution. These rights consist of 'Right to Appeal,' 'Right to 2-1401Relief from Judgement,' Right to File a Motion to Withdraw a Guilty Plea,' 'Right toFile a Motion for Reduction of Sentence,' and[] 'Right To File a Post-ConvictionPetition.'"

Defendant further alleged that he was never afforded these rights, that the attorneys whorepresented him immediately after his conviction withdrew his notice of appeal and neverfiled a motion to withdraw his guilty plea, that the trial court never informed him about thesematters, and that he did not realize "that this had happened until 22 years later." Specifically,defendant alleged that he was "held in limbow [sic] by the trial court and the IneffectiveAssistance of Counsel about his rights to appeal and other constitutional violations."

In People v. Wilk, 124 Ill. 2d 93 (1988), the supreme court examined a factualsituation such as that alleged in defendant's postconviction petition. In Wilk, several caseswere consolidated; in each case, the defendant entered a guilty plea, did not file a motion towithdraw that guilty plea, and then filed a notice of appeal. Each case was dismissed onappeal for failure to file the requisite motion to withdraw the guilty plea prior to appeal,under Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)). The court defined the "centralissue" of the consolidated cases as "what should be the effect of counsel's failure to complywith Rule 604(d)." Wilk, 124 Ill. 2d at 102.

Most pertinent to the case at bar is the following passage:

"*** [A]n attorney who stands with his client in a criminal proceeding, hearsthe admonishments of the court required by Rule 605(b), and fails to adhere to Rule604(d) by moving to withdraw the plea prior to filing a notice of appeal has fallenshort of providing competent representation. *** Such assistance of counsel,coupled with the denial of appellate review, raises effective assistance of counselconstitutional questions. Furthermore, many of the grounds for withdrawal of guiltypleas, consideration of which is denied because of counsel's failure, themselves mayraise constitutional questions.

***

The appropriate remedy for these defendants lies in [the Act] [citation].Although the *** Act is not an alternative means for reviewing nonconstitutional issues [citation], a hearing on a petition under the Act is warranted if the petitionmakes a substantial showing that the petitioner's constitutional rights have beenviolated [citation]. The sixth amendment right to counsel encompasses the right toeffective assistance of counsel. [Citation.] The determination of whether or notdefendant has received effective assistance of counsel may involve consideration ofwhether counsel for the defendant has adequately presented certain nonconstitutionalissues." Wilk, 124 Ill. 2d at 105-07.

The court further determined that under facts such as in the instant case, i.e., wheredefendant's attorney failed to file the required motion to withdraw guilty plea, the pro sedefendant need only allege in his postconviction petition a violation of his sixth amendment(U.S. Const., amend. VI) right to the effective assistance of counsel, due to the attorney'sfailure to preserve appeal rights, and allege whatever grounds he would have had to withdrawhis guilty plea had a proper motion to withdraw been filed. See Wilk, 124 Ill. 2d at 107-08.

In the case at bar, the facts are even more compelling than in Wilk for finding thatdefendant made a sufficient showing of a constitutional deprivation, because in this casedefendant alleged not only that his attorney failed to file a motion to withdraw the guiltyplea, but also that his attorneys failed to perfect his appeal. Moreover, these deficiencies arefully corroborated by the record. Defendant also alleged numerous grounds upon which hisguilty plea should have been withdrawn. We do not comment on those grounds, however,since they are more properly the subject of a circuit court evidentiary hearing.

Thus, after reviewing the record and the postconviction petition, we hold thatdefendant has sufficiently stated the gist of a meritorious claim of constitutional magnitude;defendant is entitled to the appointment of counsel, who will be obligated to review therecord and file any amendments to the postconviction petition that he or she deems necessaryto adequately state defendant's postconviction claims. The State has the right to file anymotion to dismiss, and the cause would be then set before the trial court for a second-stagehearing.

For the reasons stated, we reverse the trial court's order dismissing defendant'spostconviction petition as untimely, we find defendant's petition states the gist of ameritorious claim to entitle defendant to the appointment of postconviction counsel and anevidentiary hearing, and we remand for further proceedings in compliance with the Act andin accordance with this opinion.