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Docket No. 82536-Agenda 1-September 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 
JEFFREY D. RISSLEY, Appellant.

Opinion filed June 19, 2003.

JUSTICE FREEMAN delivered the opinion of the court:

Defendant, Jeffrey Rissley, pled guilty in the circuit court of Bureau County to charges of aggravated kidnapping and murder. At his capital sentencing hearing, a jury found him eligible for the death penalty and further concluded that there were no mitigating factors sufficient to preclude imposition of the death penalty. Accordingly, the circuit court sentenced defendant to death on the charge of murder and to a term of 15 years' imprisonment on the charge of aggravated kidnapping. On direct appeal, this court affirmed defendant's convictions and sentence. People v. Rissley, 165 Ill. 2d 364 (1995). The United States Supreme Court denied certiorari. Rissley v. Illinois, 516 U.S. 992, 133 L. Ed. 2d 432, 116 S. Ct. 525 (1995).

Defendant thereafter filed a pro se petition for postconviction relief, which was later amended by his appointed counsel. The State moved to dismiss the petition. The circuit court granted the State's motion to dismiss in part, and the matter proceeded to an evidentiary hearing on the claims which had not been dismissed. At the conclusion of the hearing, the circuit court denied defendant postconviction relief, and defendant appealed to this court. 134 Ill. 2d R. 651.

On March 15, 2001, this court issued an opinion in which we affirmed the judgment of the circuit court, holding that defendant's late filing of his petition could not be excused under the culpable negligence exception contained in the Post-Conviction Hearing Act. Following the issuance of our decision, defendant filed a petition for rehearing, in which he argued that our opinion failed to define the term "culpable negligence" and therefore rendered the exception illusory. While defendant's petition was pending, this court took under advisement People v. Boclair, 202 Ill. 2d 89 (2002), a case in which the constitutionality of section 122-1 of the Post-Conviction Hearing Act was called into question on several levels. In light of this fact, we granted defendant rehearing and ordered the parties to file additional briefs. 155 Ill. 2d R. 367.

Subsequent to our granting of rehearing, then-governor George Ryan commuted defendant's death sentence to natural life imprisonment without possibility of parole or mandatory supervised relief. Defendant thereafter moved to dismiss his appeal. We denied the motion on April 4, 2003. As we will explain, the commutation renders moot the sentencing issues that defendant has raised in this appeal. We therefore will confine our discussion to the procedural issue raised by the State and the guilt-phase issues raised in the circuit court. Although we adhere to our original construction of the statute, and find that defendant's petition was untimely filed, we agree with defendant that our original opinion failed to provide a workable definition of the term "culpable negligence" so as to provide the necessary guidance to our lower courts.

BACKGROUND

This court previously detailed the facts surrounding the crimes for which defendant stands convicted in our opinion on direct appeal. Rissley, 165 Ill. 2d 364. Instead of repeating them here, we will note the pertinent facts from the original proceedings where necessary throughout the body of this opinion.

In October 1995, defendant filed a pro se postconviction petition pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 1994)). The circuit court subsequently appointed counsel to assist defendant, and counsel filed an amended petition on March 1, 1996. Defendant's pro se petition and the amended petition contained, in total, some 21 different claims, including a single claim in which it was argued that appellate counsel was ineffective for failing to incorporate and brief the 56 issues raised in the various postsentencing motions filed at the conclusion of the sentencing hearing. The amended petition also realleged each issue that had been raised in defendant's direct appeal. Taken together, the pleadings presented a wide variety of claims regarding the allegedly ineffective assistance of both defendant's trial and appellate counsel.

The State initially moved to dismiss the petition as time-barred, arguing that it was filed beyond the time required by section 122-1 of the Act. In response, defendant maintained that his petition had been timely filed. Defendant also argued, in the alternative, that if his petition were to be deemed untimely, the petition need not be dismissed because the delay in filing was not the result of defendant's culpable negligence, an exception provided for in section 122-1. Defendant contended that he had relied on the advice of his appellate counsel on direct appeal, who informed him that he had three years from the date of his sentencing to file a postconviction petition. Defendant submitted an affidavit from his appellate counsel in which counsel corroborated defendant's allegations regarding the advice counsel gave to defendant. After a hearing on the issue, the circuit court denied the State's motion to dismiss the petition.

The State thereafter filed a second motion to dismiss defendant's petitions. In this motion, the State argued that defendant's claims were barred by principles of res judicata and waiver. In addition, the State contended that defendant's claims failed to allege a substantial constitutional violation such that an evidentiary hearing was warranted. The circuit court heard arguments on the motion, and ultimately dismissed, without an evidentiary hearing, all but four of defendant's claims. Specifically, the court determined that under this court's precedent, an evidentiary hearing had to be held with respect to defendant's claims concerning his ingestion of psychotropic drugs and his failure to receive a fitness hearing. The court further ruled that a hearing was necessary with respect to defendant's allegations that his trial counsel, John Hedrich, had lied to him in conversations leading up to defendant's decision to plead guilty. According to defendant's allegations, Hedrich misrepresented to defendant that his co-counsel, J.D. Flood, and another attorney, Andrea Lyon, both concurred in the decision to plead guilty. Moreover, the court also found that defendant's allegations that Hedrich omitted certain facts from defendant's motion to vacate the guilty plea also necessitated an evidentiary hearing, as did defendant's claim that Hedrich labored under a conflict of interest.

The circuit court thereafter held an evidentiary hearing on each of the claims noted above. At the conclusion of the hearing, the circuit court denied postconviction relief, and defendant filed the instant appeal.

ANALYSIS

We begin first by noting the familiar principles regarding postconviction proceedings. A postconviction action is a collateral attack on a prior conviction and sentence. People v. Brisbon, 164 Ill. 2d 236, 242 (1995); People v. Free, 122 Ill. 2d 367, 377 (1988). As such, the remedy "is not a substitute for, or an addendum to, direct appeal." People v. Kokoraleis, 159 Ill. 2d 325, 328 (1994). The scope of the proceeding is limited to constitutional matters that have not been, nor could not have been, previously adjudicated. Any issues which could have been raised on direct appeal, but were not, are procedurally defaulted (People v. Ruiz, 132 Ill. 2d 1, 9 (1989)) and any issues which have previously been decided by a reviewing court are barred by the doctrine of res judicata (People v. Silagy, 116 Ill. 2d 357, 365 (1987)). In addition to these procedural bars, a defendant is not entitled to an evidentiary hearing unless the allegations set forth in the petition, as supported by the trial record or accompanying affidavits, make a substantial showing of a constitutional violation. People v. Coleman, 183 Ill. 2d 366, 381 (1998). In making that determination, all well-pleaded facts in the petition and affidavits are to be taken as true, but nonfactual and nonspecific assertions which merely amount to conclusions are not sufficient to require a hearing under the Act. Coleman, 183 Ill. 2d at 381. The dismissal of a postconviction petition is warranted only when the petition's allegations of fact-liberally construed in favor of the petitioner and in light of the original trial record-fail to make a substantial showing of a constitutional violation. Coleman, 183 Ill. 2d at 382. On appeal, the circuit court's decision to dismiss the petition without an evidentiary hearing is subject to plenary review. Coleman, 183 Ill. 2d at 388-89. Determinations, however, made by the circuit court subsequent to an evidentiary hearing will not be disturbed unless manifestly erroneous. People v. Morgan, 187 Ill. 2d 500, 528 (1999); People v. Towns, 182 Ill. 2d 491, 503 (1998).

I

Before we can address defendant's appellate contentions, we must first resolve the important threshold matter raised by the State, namely, whether the circuit court erred in failing to dismiss defendant's petition on timeliness grounds pursuant to section 122-1 of the Act (725 ILCS 5/122-1 (West 1994)). Defendant replies, as he did in the circuit court, that his petition was timely or, in the alternative, that the delay can be excused because it was not due to his culpable negligence. The dates pertinent to the parties' arguments are as follows: this court issued its opinion affirming defendant's conviction and sentence on March 30, 1995; defendant filed for a writ of certiorari in the United States Supreme Court on August 25, 1995; defendant instituted the instant postconviction action in early October 1995; and the Supreme Court denied defendant's petition for certiorari on November 27, 1995. Defendant, with the aid of counsel, subsequently filed an amended postconviction petition on March 1, 1996.

Timeliness of the October Petition

Around the time that defendant filed his postconviction petition, the legislature twice amended section 122-1 of the Act (725 ILCS 5/122-1 (West 1994)), which governed the limitations period on the institution of postconviction actions. Defendant refers to both an earlier and a later version of the statute in support of his arguments, but the parties agree that the controlling version of the statute is the version in effect in October 1995, when the petition was filed. See People v. Bates, 124 Ill. 2d 81, 84-86 (1988). That version of the statute provided:

"No proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or issuance of the opinion from the Illinois Supreme Court or 6 months after the date of the order denying certiorari by the United States Supreme Court or the date for filing such a petition if none is filed or 3 years from the date of conviction, whichever is sooner, unless the petitioner alleges facts showing that the delay was not due to his culpable negligence." 725 ILCS 5/122-1 (West 1994).

We note that the statute was amended yet again January 1, 1996.

The fundamental rule of statutory interpretation is to give effect to the intention of the legislature. We look first to the words of the statute, as the language of the statute is the best indication of the legislative intent. When the statutory language is clear, it must be given effect without resort to other tools of interpretation. It is never proper to depart from plain language by reading into a statute exceptions, limitations, or conditions which conflict with the clearly expressed legislative intent. County of Knox ex rel. Masterson v. The Highlands, L.L.C., 188 Ill. 2d 546, 556 (1999); People v. Woodard, 175 Ill. 2d 435, 443 (1997).

Pursuant to the controlling version of the statute, the right to file a postconviction action expired as soon as any of the listed specified time periods had elapsed. In this case, the parties agree that the first such event to transpire was the expiration of six months after the issuance of the opinion from this court affirming defendant's conviction and sentence. See 725 ILCS 5/122-1 (West 1994). This court issued its opinion affirming defendant's conviction and sentence on March 30, 1995. Six months elapsed on September 30, 1995. Defendant mailed his postconviction petition to the clerk of the circuit court of Bureau County on October 6, 1995, and the clerk filed the petition on October 10, 1995. Both the mailing and the filing occurred more than six months after this court filed its opinion. Accordingly, the action was commenced too late.

Defendant advocates for a different interpretation of the statute. Defendant notes that prior to a July 1995 amendment the statute only barred the commencement of proceedings after the later of all of the listed events. See 725 ILCS 5/122-1 (West 1992). Indeed, the only change made to this statute by the July 1995 amendment was to change the word "later" to "sooner." See Pub. Act 88-678, eff. July 1, 1995. Defendant contends that in this prior version of the statute all of the events listed in the statute "described the termination of direct appeal." Accordingly, defendant argues, it is "obvious" that the legislature intended to create two limitations periods: six months from the end of direct appeal, or three years after conviction. Defendant urges that the post-July 1995 version of the statute, applicable to him, should be read consistently. Thus, defendant contends that the post-July 1995 version of the statute should be understood as allowing a defendant to file a postconviction petition until the earlier of (a) six months from the end of direct appeal, or (b) three years after conviction.

First, as previously noted, when a statute is clear and unambiguous it is improper to look beyond the plain meaning of its terms. County of Knox ex rel. Masterson, 188 Ill. 2d at 556; Woodard, 175 Ill. 2d at 443. Moreover, even if we were to look beyond the plain language of the statute, defendant's argument is undercut by the legislature's subsequent amendment of the statute. Effective January 1, 1996, the legislature again amended the statute, this time removing all references to the issuance of this court's opinion and to proceedings before the United States Supreme Court. Thereafter, a postconviction proceeding had to be commenced within six months after the denial of a petition for leave to appeal or the date for filing such a petition if none was filed, or 45 days after the defendant filed his or her brief in the appeal before this court (or 45 days after the deadline for filing that brief if no brief is filed), or three years from the date of conviction, whichever occurs sooner. 725 ILCS 5/122-1 (West 1996). By this amendment, the legislature removed any doubt that postconviction petitions must sometimes be filed before the termination of proceedings on direct appeal. Thus, defendant's appeal to legislative intent would be unconvincing even if it did not run counter to the plain language of the statute.

Defendant also contends that, if read literally, the July 1995 amendment rendered much of the section "meaningless surplusage." For instance, defendant observes that "six months after the date for filing a cert. [sic] petition could never occur sooner than the denial of a petition for leave to appeal, or six months after the issuance of an opinion the cert. petition sought to challenge." Defendant argues that the legislature could not have intended to render superfluous the language regarding certiorari, and accordingly defendant urges us to give effect to the "true intent" of the legislature by "eliminating the 'issuance of opinion' language in construing the statute."

Defendant bases his argument on the rule that statutes should be construed, if possible, so that no term is rendered superfluous or meaningless. Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 397 (1994). However, defendant overlooks the fact that his suggested interpretation of the statute breaks the very rule of construction upon which he relies, as defendant would have us affirmatively ignore the "issuance of opinion" clause. Accordingly, this argument is not convincing.

We will not ignore the wording of the statute. Section 122-1 speaks in terms of four events-the first revolves around the time frames associated with petitions for leave to appeal. Due to the constitutional requirement of mandatory review of capital cases by this court, the leave to appeal provisions are of no relevance to capital cases. In other words, they do not apply. The second event listed in the statute is the date of the issuance of the opinion from this court. The third is the denial of certiorari by the United States Supreme Court, and the fourth is three years from the date of conviction. By its July 1995 amendment to the statute, the legislature clearly intended that thenceforth the right to file a postconviction petition would expire upon the occurrence of the first of any of the listed events. In this case, this court issued its opinion on direct appeal on March 30, 1995. Six months from that date was September 30, 1995. Defendant's date of conviction was October 9, 1992, three years from which was October 9, 1995. Given that defendant did not file his petition for certiorari with the Supreme Court until August 25, 1995, it was clear that the September 30, 1995, date was the sooner of the three potential dates. Defendant did not commence proceedings under the postconviction act until more than six months had elapsed after March 30, 1995. Accordingly, by the plain language of the statute, his petition was untimely.

Lack of Culpable Negligence

Having decided that defendant's petition was indeed untimely under section 122-1, we must next address defendant's alternative contention, i.e., that even if the petition is deemed untimely, this court should affirm the circuit court's determination that the delay was not due to defendant's culpable negligence. See 725 ILCS 5/122-1 (West 1994).

In his petition, defendant alleged that he filed his postconviction petition in October, even though the Supreme Court had not yet then ruled on his petition for certiorari, "due to the change in the law, which, beginning on July 1, 1995, requires that a Post-Conviction Petition be filed within three years of the imposition of the death penalty or within six months of the denial by the United States Supreme court of a Petition for Writ of Certiorari, whichever is sooner." Moreover, in response to the State's motion to dismiss the petition, defendant alleged that when the legislature amended the statute in July 1995, his attorney on direct appeal contacted him and advised him that if defendant wished to institute postconviction proceedings he would now have to do so within three years after his conviction. Defendant attached an affidavit by his direct appeal counsel to his response to the State's motion to dismiss. In the affidavit, counsel stated that when the legislature amended the statute in July 1995 he so notified all of his incarcerated clients, including defendant. Counsel further averred that he advised defendant that he could not wait until certiorari was denied, but would have to file his postconviction petition within three years of his October 1992 sentencing. Counsel averred that he did not at any time advise defendant that there was any relevance to the date that this court's opinion on direct appeal was filed. Counsel also stated that his office-the supreme court unit of the office of the State Appellate Defender-assisted defendant in filing his October 1995 pro se petition.

The circuit court found that defendant had made a good-faith effort to comply with the statutory requirements, and the delay was caused by defendant's reliance on the advice of his appellate counsel. The court found that, because of this reliance, the delay was not due to defendant's culpable negligence.

Our inquiry, therefore, must focus on whether defendant's allegations as presented to the circuit court are sufficient to establish a lack of culpable negligence so as to avoid dismissal of the petition on the basis that it was time-barred. Defendant maintains that because he relied, in good faith, upon the advice of his appellate counsel and made a good-faith effort to comply with the statutory requirement, he was not culpably negligent in his late filing of that petition.

Our resolution of this issue turns upon the meaning of the term "culpable negligence" contained in section 122-1. We note that the legislature did not define the term "culpable negligence" within the body of the Act. This court, however, in our recent decision in Boclair, spoke at length regarding the meaning of the term:

"Culpable negligence has been defined as '[n]egligent conduct that, while not intentional, involves a disregard of the consequences likely to result from one's actions.' Black's Law Dictionary 1056 (7th ed. 1999). Culpable negligence has also been defined as 'something more than negligence' involving 'an indifference to, or disregard of, consequences.' 65 C.J.S. Negligence