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Docket No. 90115-Agenda 10-May 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 
ROBERT L. HAGER, Appellant.

Opinion filed August 29, 2002.

JUSTICE McMORROW delivered the opinion of the court:

The defendant, Robert L. Hager, filed a pro se post-convictionpetition in the circuit court of Kane County pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West2000)). The circuit court found defendant's petition to be "withoutmerit" and summarily dismissed the petition under section122-2.1(a)(2) of the Act (725 ILCS 5/122-2.1(a)(2) (West 2000)).The appellate court affirmed the circuit court's summary dismissalof defendant's post-conviction petition but on different grounds.The appellate court determined that defendant's petition was nottimely filed and, on that basis, affirmed the circuit court. 314 Ill.App. 3d 951. For the reasons that follow, we reverse the judgmentof the appellate court and remand the cause to that court for furtherproceedings.

BACKGROUND

On March 12, 1991, a jury convicted defendant of five countsof aggravated criminal sexual assault against two victims under 13years of age. See Ill. Rev. Stat. 1991, ch. 38, par. 12-14(b)(1) . OnDecember 19, 1991, defendant was sentenced by the circuit courtto two consecutive 40-year terms of imprisonment. Defendantappealed his convictions and sentence. On January 18, 1994, theappellate court affirmed defendant's convictions but remanded thecause to the circuit court for resentencing. People v. Hager, No.2-91-1477 (1994) (unpublished order under Supreme Court Rule23). Defendant did not file a petition for leave to appeal from thisdecision.

On April 15, 1995, the circuit court resentenced defendant onhis aggravated criminal sexual assault convictions. Defendant wassentenced to two consecutive 35-year terms of imprisonment.Defendant again appealed, arguing that the sentences wereexcessive. On February 21, 1997, the appellate court affirmeddefendant's sentences. People v. Hager, 2-95-0821 (1997)(unpublished order under Supreme Court Rule 23).

On October 17, 1997, defendant filed in the circuit court thepro se petition for post-conviction relief which is at issue in thisappeal. Defendant alleged in his petition that his right to dueprocess was denied because his "convictions resulted fromtestimony by a purported child sex abuse expert whomisrepresented her qualifications." Although the petition reflectsthat defendant's signature was notarized on September 26, 1997,the notice and proof of service sections of the petition are undated.Further, there is no postmarked envelope establishing whendefendant placed the petition in the mail. The petition was filedwith the circuit court on October 17, 1997. Thereafter, onDecember 11, 1997, the circuit court summarily dismisseddefendant's petition, finding it to be "without merit." See 725ILCS 5/122-2.1(a)(2) (West 2000) (authorizing the summarydismissal of a noncapital post-conviction petition which is"frivolous or is patently without merit").

The appellate court affirmed the dismissal of defendant'spost-conviction petition but not on the basis that the petition waspatently without merit. Instead, the appellate court determined thatdefendant's petition was not timely filed. In reaching thisconclusion, the appellate court examined the time limitations forfiling a post-conviction petition which are set forth in section122-1(c) of the Act (725 ILCS 5/122-1(c) (West 2000)). Section122-1(c) provides:

"(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 filing such apetition if none is filed or more than 45 days after thedefendant files his or her brief in the appeal of thesentence before the Illinois Supreme Court (or more than45 days after the deadline for the filing of the defendant'sbrief with the Illinois Supreme Court if no brief is filed)or 3 years from the date of conviction, whichever issooner, unless the petitioner alleges facts showing that thedelay was not due to his or her culpable negligence." 725ILCS 5/122-1(c) (West 2000).

Citing to People v. Reed, 302 Ill. App. 3d 1007, 1009 (1999),the appellate court first concluded that the 45-day time limitdescribed in section 122-1(c) applied only to cases which hadbeen directly appealed to the supreme court and, hence, was notrelevant to the question of the timeliness of defendant's petition.The appellate court then noted that, between the remaining twotime limits contained in section 122-1(c), i.e., the six-monthperiod or the three-year period, section 122-1(c) dictates that theperiod which results in the earliest date for filing the petition mustbe used. The court then compared the different periods.

The appellate court assumed, for purposes of its analysis, thatthe three-year limitations period would not have begun to run untildefendant's convictions were affirmed on appeal in 1997 becauseonly then would defendant's convictions have been final. 314 Ill.App. 3d at 953, citing People v. Ivy, 313 Ill. App. 3d 1011 (2000).The court next observed that there were two possible ways tocalculate the six-month time period set forth in section 122-1(c).The six-month period could have started to run either afterdefendant's first appeal, in 1994, or after defendant's secondappeal, in 1997. The appellate court reasoned that the deadlinewhich resulted from either of these two possibilities was soonerthan the deadline which resulted from applying the three-yearperiod. Accordingly, because section 122-1(c) dictates that theearliest date be used, the court set the three-year period aside.

The appellate court then held that the six-month limitationsperiod for defendant to file his petition for post-conviction reliefbegan to run following his first appeal, in 1994. The appellatecourt determined that it did not matter if defendant was nottechnically or finally "convicted" until February 1997, when theappellate court affirmed the sentences imposed following theremand. The appellate court recognized that the first appealresulted in the reversal of defendant's sentences and, therefore,that a post-conviction petition filed after the first appeal could nothave addressed any constitutional issues relating to defendant'ssentences. Nevertheless, the appellate court concluded thatdefendant could have raised nonsentencing issues, including theissue raised in this case, in a post-conviction petition while "thesentencing issue was being resolved in the trial court." 314 Ill.App. 3d at 954. Thus, according to the appellate court, a post-conviction petition, though limited to nonsentencing issues, couldhave been filed following the first appeal in 1994. After reachingthis conclusion, the appellate court reiterated that section 122-1(c)requires that the earliest deadline imposed by the variouslimitations periods be used. Because a post-conviction petitioncould have been filed after the first appeal in 1994, the appellatecourt determined that the six-month time limit began to run in thiscase at that time.

The appellate court held that the deadline for defendant'spost-conviction petition was six months following the date onwhich his petition for leave to appeal from the first appellatedecision was due. This deadline, according to the appellate court,was August 8, 1994. 314 Ill. App. 3d at 954. Defendant's post-conviction petition was filed in the circuit court on October 17,1997. Accordingly, the appellate court dismissed defendant'spetition on timeliness grounds. The appellate court did notconsider the circuit court's holding that defendant's petition was"without merit."

This court subsequently granted defendant's petition for leaveto appeal. See 177 Ill. 2d R. 315.

ANALYSIS

The principal question presented in this appeal is whether thesix-month limitations period described in section 122-1(c) of theAct began to run in this case after defendant's first appeal, in1994, or after his second appeal, in 1997. In our view, the six-month limitations period could not have started to run afterdefendant's sentences were vacated in the first appeal.

In People v. Woods, 193 Ill. 2d 483 (2000), this court heldthat, as used in the Post-Conviction Hearing Act, the word"conviction" is a term of art which means a final judgment thatincludes both a conviction and a sentence. Woods, 193 Ill. 2d at488. On January 18, 1994, the appellate court vacated defendant'ssentences. Therefore, on that date, defendant did not stand"convicted" for purposes of the Post-Conviction Hearing Act.

The appellate court's conclusion that it was irrelevant thatdefendant no longer had a "conviction" on January 18, 1994, isincorrect. As its name suggests, the Post-Conviction Hearing Actprovides a remedy only for those defendants who stand convicted.The relief afforded by the Act is limited to a "person imprisonedin the penitentiary who asserts that in the proceedings whichresulted in his or her conviction there was a substantial denial ofhis or her rights under the Constitution of the United States or ofthe State of Illinois or both." (Emphasis added.) 725 ILCS5/122-1(a) (West 2000). In other words, a defendant who is not"convicted" cannot file a post-conviction petition. Thus, even haddefendant wished to file a post-conviction petition following thefirst appeal, he could not have done so; he simply had no"conviction" to challenge. Because defendant had no "conviction"after the first appeal, the six-month period found in section122-1(c) could not have begun to run at that time. Afterdefendant's sentences were reversed by the appellate court inJanuary 1994, the limitations periods in section 122-1(c) did notbegin to run again until defendant was re-sentenced in the circuitcourt on April 15, 1995. Accordingly, the appellate court erred inholding that the six-month period began to run followingdefendant's first appeal.

Having concluded that the appellate court erred in itsapplication of the limitations period in section 122-1(c), we wouldordinarily remand this cause to that court with instructions todetermine the timeliness of defendant's post-conviction petition ina manner consistent with our holding in the case at bar. However,we may not instruct the appellate court to take that course ofaction here.

This court has recently held that the Act does not permit thesummary dismissal of a post-conviction petition during the firststage of post-conviction review on the ground that the petition isuntimely. People v. Boclair, Nos. 89388, 89471, 89534 cons., slipop. at 3-9 (August 29, 2002). The timeliness of the post-convictionpetition is a matter that is "left for the State to assert during thesecond stage of the post-conviction proceedings." Boclair, slip op.at 9. Therefore, on remand in this case, the appellate court may notconsider the timeliness of defendant's petition for post-convictionrelief. As defendant's post-conviction petition was summarilydismissed by the circuit court pursuant to section 122-2.1(a)(2) ofthe Act, the appellate court must limit its discussion todetermining whether, aside from its timeliness, defendant'spetition "is frivolous or is patently without merit" (725 ILCS5/122-2.1(a)(2) (West 2000)).

CONCLUSION

For the foregoing reasons, the judgment of the appellate courtis reversed. This cause is remanded to the appellate court todetermine whether the circuit court erred in summarily dismissingdefendant's post-conviction petition under section 122-2.1(a)(2)of the Act.

Appellate court judgment reversed;

cause remanded.