Opinion
2-20-0721
03-24-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AMITTIE G. BROWN, Defendant-Appellant.
This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Lake County. No. 07-CF-3790 Honorable Christen L. Bishop, Judge, Presiding.
JUSTICE BRENNAN delivered the judgment of the court. Justices McLaren and Hudson concurred in the judgment.
ORDER
BRENNAN, JUSTICE
¶ 1 Held: Defendant's allegation that he was cognitively impaired was not legally sufficient to excuse the untimeliness of his postconviction petition; thus, the trial court did not err in dismissing defendant's petition at the second stage of review.
¶ 2 At issue is whether the trial court was required to hold an evidentiary hearing on the issue of defendant's culpable negligence. Defendant, Amittie G. Brown-recognizing that he filed a late petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014))-alleged facts suggesting that the delay was not due to his culpable negligence. We determine that no evidentiary hearing was required here. Accordingly, we affirm the dismissal of defendant's petition.
¶ 3 I. BACKGROUND
¶ 4 On October 24, 2007, the State charged defendant with 15 counts of first-degree murder. All counts concerned the victim, Joseph Burrell, who was 66 years old when he was killed. During pretrial proceedings, defendant moved to quash his arrest and suppress his confession. Defendant claimed that, although he signed a waiver of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), his cognitive deficiencies prevented him from understanding the rights he was waiving. After the hearing on the motion had commenced, defendant was found unfit to stand trial. Over one year later, the trial court found defendant's fitness restored and the hearing on the motion to quash and suppress continued. The trial court denied the motion.
¶ 5 On February 10, 2012, a jury found defendant guilty of first-degree murder (720 ILCS 5/9- 1(a)(1) (West 2006)). The jury also found that Burrell was over 60 years old and his death was the result of exceptionally brutal and heinous behavior indicative of wanton cruelty (id. § 9- 1(b) (16)). Defendant filed a posttrial motion; the trial court denied the motion, and sentenced defendant to 55 years' imprisonment. Defendant appealed. We affirmed defendant's conviction and sentence on February 18, 2014. People v. Brown, 2014 IL App (2d) 120849-U.
¶ 6 Approximately 17 months later, on September 10, 2015, defendant filed a "Petition for Leave to File a Late Post Conviction Petition." No postconviction petition was attached to this pleading. In the pleading, defendant alleged that (1) he prepared the pleading with the help of a fellow inmate, (2) he was unable to pursue legal redress without that help, (3) the trial record reflected that he is functionally illiterate and essentially uneducated, (4) he is indigent, (5) it "took him too long to find assistance in preparing" the pleading, (6) our supreme court rejected his petition for leave to appeal because it was untimely, and (7) he, like the average layperson, is ill-equipped to pursue postconviction proceedings. The trial court denied defendant's pleading, and defendant moved the court to reconsider. On October 23, 2015, the trial court denied that motion, noting that, without a postconviction petition, it had nothing before it to consider.
¶ 7 In late December 2015, defendant moved to file a late notice of appeal in this court. Defendant alleged that he could not file a notice of appeal earlier because he had been in segregation. We granted defendant leave to file a late notice of appeal. On defendant's motion, that appeal was dismissed in June 2017.
¶ 8 On April 19, 2016, defendant filed a "Rectified Petition for Leave to File a Late Post Conviction Petition." Defendant also moved for the appointment of counsel, arguing that he could not address the complex legal issues in his petition because he is a layman and lacked formal legal training and that he had prepared the postconviction petition with the assistance of a fellow inmate. In his petition, defendant asserted that he "prompts the [trial court] for leave to file a late petition for post conviction [sic] relief under the allowable provisions of his 'lack of culpable negligence,' via [his] mental and diminished capacity." Defendant claimed that "[his] mental and diminished capacity was recognized as allowable provisions for his lack of culpable negligence in th[e] late filing [of an appeal in] the [Second] District Appellate Court."
¶ 9 Defendant also addressed his alleged diminished mental capacity in the substance of his petition. For example, in arguing that the trial court should have granted his motion to quash and suppress, he noted that an IQ test conducted during fitness proceedings (in which he was initially found unfit but later found restored to fitness) revealed that his IQ was 54. Moreover, defendant alleged that his cognitive ability is extremely limited-he reads at a second-grade level and was initially found unfit to stand trial.
Another IQ test in the record measured defendant's IQ at between 85 and 100, the low to low-average range.
¶ 10 On June 16, 2016, the trial court "mov[ed] the pro se petition from stage 1 to stage 2" and appointed postconviction counsel to represent defendant. In October 2019, postconviction counsel filed a supplemental petition and a certificate per Illinois Supreme Court Rule 651 (c) (eff. July 1, 2017). The State moved to dismiss, addressing the merits and arguing that defendant's petition was untimely. In the response, counsel alleged that the delay in filing the petition was due to defendant's limited cognitive ability, not his culpable negligence. Counsel alleged that defendant (1) has a low IQ, (2) was initially found unfit to stand trial and was committed to the Department of Human Services, (3) needed someone's assistance to prepare his postconviction petition, (4) was unable to obtain that assistance until after the time to file a postconviction petition had expired, and (5) is functionally illiterate.
¶ 11 Following a hearing, the trial court granted the State's motion to dismiss. It found that "[t]here is a specific fact minimally alleged here that [does] not rise to the lack of culpable negligence on the [defendant's part." This timely appeal followed.
¶ 12 II. ANALYSIS
¶ 13 On appeal, defendant argues that the trial court should not have dismissed his postconviction petition. "The Act provides a remedy for defendants who have suffered substantial violations of their constitutional rights." People v. Ramirez, 361 Ill.App.3d 450, 451 (2005). "Under the Act, a postconviction proceeding *** contains three stages." Id. "At the first stage, the [trial] court must independently review the postconviction petition within 90 days of its filing and determine whether the petition should be dismissed because it is frivolous or is patently without merit." Id. "To survive the first stage, a petition must state only the gist of a constitutional claim." Id. "A petition also survives the first stage if the trial court fails to make a finding that it is frivolous or without merit within 90 days." Id. at 451-52. Further, a court may not consider the timeliness of a postconviction petition at the first stage. People v. Perkins, 229 Ill.2d 34, 48 (2007).
¶ 14 "If the petition survives the first stage, the defendant moves on to the second stage under the Act, at which point an indigent defendant is appointed counsel." Ramirez, 361 Ill.App.3d at 452. "At the second stage, the defendant's counsel may file an amended postconviction petition and the State may file a motion to dismiss or an answer to the petition." Id. The timeliness of the petition may be considered at the second stage. Perkins, 229 Ill.2d at 48. "If the trial court does not dismiss or deny the petition, the proceeding advances to the third and final stage, at which the trial court conducts an evidentiary hearing on the defendant's petition." Ramirez, 361 Ill.App.3d at 452.
¶ 15 Here, the trial court dismissed defendant's petition at the second stage, finding that the petition was untimely. Section 122-1 (c) of the Act (725 ILCS 5/122-1 (c) (West 2016)) delineates when a petition must be filed. As relevant here, it provides:
" [N] o proceedings under this Article shall be commenced more than 6 months after the conclusion of proceedings in the United States Supreme Court, unless the [defendant] alleges facts showing that the delay was not due to his or her culpable negligence. If a petition for certiorari is not filed, no proceedings under this Article shall be commenced more than 6 months from the date for filing a certiorari petition, unless the [defendant] alleges facts showing that the delay was not due to his or her culpable negligence. If a
defendant does not file a direct appeal, the post-conviction petition shall be filed no later than 3 years from the date of conviction, unless the [defendant] alleges facts showing that the delay was not due to his or her culpable negligence.
This [statute of] limitation does not apply to a petition advancing a claim of actual innocence." Id.
Defendant does not assert a claim of actual innocence. Thus, the limitation period applies.
¶ 16 Looking to the limitation period, defendant did not file a petition for certiorari, i.e., a writ of certiorari (People v. Johnson, 2017 IL 120310, ¶ 20), in the United States Supreme Court. To file a writ of certiorari, defendant was required first to file a petition for leave to appeal to our supreme court. See id. (United States Supreme Court Rule 13 mandates that a defendant who seeks review in the Supreme Court must first appeal to the state court of last resort). Defendant did not file a petition for leave to appeal to our supreme court.
Defendant stated in his "Petition for Leave to File a Late Post-Conviction Petition" that he attempted to file a petition for leave to appeal to our supreme court but failed to do so in the time allotted.
¶ 17 Illinois Supreme Court Rule 315(b) (eff. Oct. 1, 2021) governs when a petition for leave to appeal must be filed in our supreme court. The version of Rule 315 (b)(2) in effect at the time we affirmed defendant's conviction and sentence provided that "[t]he time for filing a petition for leave to appeal a Rule 23 order shall be the same as for published opinions, except that if the party who prevailed on an issue in the appellate court timely files a motion to publish a Rule 23 order ***, and if a motion is granted, a nonmoving party may file a petition for leave to appeal within 35 days after the filing of the published opinion." Ill. S.Ct. R. 315(b)(2) (eff. July 1, 2013). No motion to publish this court's Rule 23 order affirming defendant's conviction and sentence was filed. Rule 315(b)(1), which governs petitions for leave to appeal published opinions and is referenced in Rule 315(b) (2), provided that" [u] nless a timely petition for rehearing is filed in the Appellate Court, a party seeking leave to appeal must file the petition for leave in [our s] upreme [c]ourt within 35 days after the entry of such judgment." Ill. S.Ct. R. 315(b)(1) (eff. July 1, 2013). Defendant filed no petition for rehearing.
¶ 18 Given the above, defendant had until Tuesday, March 25, 2014-35 days after February 18, 2014, which is when we affirmed defendant's conviction and sentence-to file a petition for leave to appeal in our supreme court. Defendant then had until Thursday, September 25, 2014, to file his postconviction petition. See Johnson, 2017 IL 120310, ¶ 24 ("[T]he six-month time period for filing a postconviction petition started to run after the expiration of the 35 days in which defendant had to file a petition for leave to appeal to [our supreme] court."). Defendant filed his postconviction petition on April 19, 2016, over 18 months after it was due. Even if defendant's "Petition for Leave to File a Late Post-Conviction Petition" could be construed as a postconviction petition, it was filed on September 10, 2015, almost one year after his postconviction petition was due.
¶ 19 The parties are in agreement that defendant's petition was untimely and that this may be excused only if the delay in filing the petition was not due to defendant's culpable negligence. However, the parties disagree about whether, when a defendant has alleged a lack of culpable negligence, the trial court must hold an evidentiary hearing to assess the credibility of the defendant's allegations on that point.
¶ 20 Defendant contends that the trial court was required to hold an evidentiary hearing on the issue of his lack of culpable negligence. He argues that "when facts are pleaded to show a lack of culpable negligence, and an assessment of credibility is required, [a determination on an allegation of culpable negligence] can only be properly made at a third-stage evidentiary hearing." The State responds that defendant was not entitled to a hearing on the culpable-negligence issue because (1) "he alleged no specific information as to how his cognitive issues precisely impacted his ability to timely file a petition" and (2) "[his] allegations are positively rebutted by the trial record." We review de novo whether defendant, who has alleged a lack of culpable negligence, is entitled to an evidentiary hearing. People v. Jones, 2021 IL 126432, ¶ 14 (pure question of law reviewed de novo); see also People v. Childress, 191 Ill.2d 168, 174 (2000) (trial court's dismissal of postconviction petition without an evidentiary hearing is reviewed de novo).
¶ 21 Defendant's contention-that it was inappropriate for the trial court to review the timeliness of his petition because doing so will require it to make impermissible findings of fact and credibility determinations-is simply unfounded. Nothing in section 122-1 (c) of the Act requires that the trial court decide any facts to assess timeliness. Rather, the inquiry under the Act is merely whether the defendant" alleges facts showing that the delay was not due to his or her culpable negligence." (Emphasis added.) 725 ILCS 5/122-1(c) (West 2016). As our supreme court has explained, the "inquiry *** must focus on whether [the] defendant's allegations as presented to the [trial] court are sufficient to establish a lack of culpable negligence to avoid dismissal of the petition on the basis that it was time-barred." (Emphasis added.) People v. Rissley, 206 Ill.2d 403, 418 (2003); see also People v. Domagala, 2013 IL 113688, ¶ 35 (explaining that "evidentiary questions" are not resolved at the second stage, which "tests the legal sufficiency of the petition"). Simply put, the trial court does not make any findings of fact or credibility determinations in assessing whether defendant alleged facts demonstrating a lack of culpable negligence.
¶ 22 "Lack of culpable negligence is very difficult to establish." People v. Gunartt, 327 Ill.App.3d 550, 552 (2002). "A defendant bears a heavy burden to affirmatively show why the exception to the statute of limitations applies to his case." Id. "He cannot merely make vague or conclusory assertions, but must show clearly through factual allegations that he previously made diligent attempts to uncover matters he now purports entitle him to judicial relief or otherwise demonstrate in significant detail how he could not have obtained such information before the limitations period expired." (Internal quotation marks and citation omitted). Id.
¶ 23 Setting aside portions of the record that arguably rebut the extent of defendant's cognitive and mental disabilities, we consider defendant's specific allegations underlying his contention that his cognitive and mental disabilities, and not his culpable negligence, prevented him from filing a timely petition. Courts have found that neither mental illness nor illiteracy automatically excuses a defendant from filing a timely petition. See People v. Montgomery, 45 Ill.2d 94, 96 (1970) ("The [psychiatric] reports [attached to the defendant's petition] generally indicate a condition of mental disturbance, but it does not appear that [the] defendant was incapable of exercising reasonable diligence in his pursuit of relief, and thus we do not find a sufficient showing that [the] defendant's delay was due to causes other than his culpable negligence."); see also People v. Robinson, 324 Ill.App.3d 553, 555-56 (2001) (the defendant's mental and learning disabilities, which were the basis of a finding of unfitness during trial proceedings, did not excuse the defendant's failure to file a timely petition). Moreover, a defendant's inability to prepare a petition without assistance does not excuse a petition's untimeliness. See People v. Lander, 215 Ill.2d 577, 589 (2005).
According to the presentence investigation report, when defendant was evaluated after the trial court found him unfit to stand trial, treatment providers noted that"' [defendant] has not presented with any cognitive difficulties, mood symptoms, or psychosis. When asked, he denies any psychiatric symptoms and has not demonstrated any difficulties with learning the unit rules or other cognitive problems since his admission.'" The record also indicated that defendant is dyslexic.
¶ 24 To support his claim, defendant asserts that he (1) has a low IQ, (2) was initially found unfit to stand trial and was committed to the Department of Human Services, (3) needed someone's assistance to prepare his postconviction petition, (4) was unable to obtain that assistance until after the time to file a postconviction petition had expired, and (5) is functionally illiterate. While these facts support defendant's claim that he has limited cognitive abilities, they do not, without more, support a contention that these limited cognitive abilities prevented him from filing a timely petition. Simply put, defendant has failed to allege how these mental limitations prevented him from filing his petition earlier. See Gunartt, 327 Ill.App.3d at 552.
¶ 25 Relying on People v. Marino, 397 Ill.App.3d 1030 (2010), defendant argues that he is entitled to a third-stage evidentiary hearing. In Marino, the defendant entered a blind plea of guilty to two counts of armed robbery. Id. at 1031. The factual basis for the two convictions was that defendant took money from two bank tellers. Id. Four years after his convictions and sentence were affirmed on direct appeal, the defendant petitioned for postconviction relief. He argued that his trial attorney was ineffective by allowing him to plead guilty and thus be sentenced for two counts of armed robbery when he had taken money from only one teller. Id. The defendant asserted that, while pursuing a mandamus action, he became aware of counsel's ineffectiveness and promptly filed a petition. Id. The State moved to dismiss the petition as untimely, and the trial court granted that motion, finding that the discovery rule did not apply to postconviction petitions. Id. Thus, it determined that, regardless of when and how the defendant discovered that his constitutional rights were violated, the defendant's petition had to be dismissed as untimely. See id.
¶ 26 On appeal, we determined that the trial court erred when it found that the defendant's excuse for the late filing of his petition was immaterial. Id. at 1037. Because the defendant had alleged facts supporting his contention that the late filing (1) was not due to his culpable negligence and (2) should have been excused, we concluded that the trial court should have considered those reasons before dismissing the defendant's petition. Id. at 1036 ("[T]he inquiry is whether the defendant was culpably negligent based on the circumstances surrounding the discovery of the claim and the actions taken to preserve it."). Because the trial court did not consider the reasons for the delay, and the reasons were sufficiently alleged, we determined that the defendant was entitled to an evidentiary hearing. Id. ("[The defendant] should not have been precluded from presenting evidence that he lacked culpable negligence and that the matter is best determined at the third stage of the proceedings.").
¶ 27 Here, unlike in Marino, defendant's delay in filing his petition has nothing to do with discovering a constitutional violation long after conviction and sentence. Defendant's purported reason for his delay are his cognitive deficiencies. Unlike the constitutional violation in Marino, these deficiencies were known to defendant when he was convicted and sentenced, long before the deadline for a timely petition. Moreover, unlike in Marino, the trial court here did not fail to consider defendant's allegation of lack of culpable negligence. Rather, the court considered it but found it "minimally alleged," i.e., conclusory and insufficient to excuse the late filing of the petition. Parenthetically, we note that defendant's allegation that we allowed defendant to file a late notice of appeal because of his cognitive disabilities is unfounded; in his motion to file a late notice of appeal, which we granted, defendant alleged only that he could not file a timely notice of appeal because he had been in segregation when the notice of appeal was due.
¶ 28 In sum, to allow defendant to avoid the dismissal of his untimely petition, without explaining why and how cognitive deficiencies prevented him from filing a timely petition, would swallow the exception in section 122-1(c) of the Act that late filings may be excused only if they were caused by matters other than the defendant's culpable negligence. We cannot read section 122-1 (c) in such a way, especially when the dismissal of a petition as untimely can be made only at stage two, where defendant was entitled and received the benefit of appointed counsel (see Perkins, 229 Ill.2d at 48).
¶ 29 III. CONCLUSION
¶ 30 For the reasons stated, we affirm the judgment of the circuit court of Lake County.
¶ 31 Affirmed.