725 ILCS 5/122-1(c) (West 1998). Although there clearly is a split among the appellate districts as to whether a postconviction petition can be dismissed at the summary dismissal stage based on untimeliness, the First District addressed the issue in People v. Scullark, 1-99-1722 (October 31, 2001), and People v. Lopez, 317 Ill. App.3d 1047, 740 N.E.2d 1179 (2000). In both cases, after analyzing other decisions on the issue and relevant supreme court authority, the Lopez and Scullark courts concluded that timeliness of a postconviction petition may be addressed at the summary dismissal stage.
This issue is currently being considered by the supreme court in the following consolidated appeals from the Fourth and Fifth Appellate Districts: People v. Johnson, 189 Ill.2d 694 (2000); People v. McCain, 189 Ill.2d 696 (2000); and People v. Boclair, 189 Ill.2d 690 (2000). However, in the recently decided case of People v. Lopez, 317 Ill. App.3d 1047, 1052-53 (2000) this court held that the "unique language" found in the Act "makes it possible for a trial court to summarily dismiss an untimely petition where the defendant has not sufficiently alleged a lack of culpable negligence." In Lopez, this court reversed the trial court's dismissal of the petition because the trial court failed to discuss the defendant's allegations of lack of culpable negligence and remanded for the trial court to make such a determination. Lopez, 317 Ill. App.3d at 1054.
Wright, 189 Ill. 2d at 11-12. Some appellate court panels have interpreted this language in Wright as setting forth a "clear directive" that a circuit court may summarily dismiss petitions as untimely in the initial phase of a post-conviction petition ( People v. Lopez, 317 Ill. App. 3d 1047, 1051 (2000); People v. Carroll, 317 Ill. App. 3d 408 (2000)), as was held by the appellate court in Boclair, 312 Ill. App. 3d 346. Other panels have classified this language as dicta and have held that the circuit court exceeds its authority when it dismisses a post-conviction petition as untimely in the initial stage without a determination that the petitions were frivolous or patently without merit ( People v. Whitford, 314 Ill. App. 3d 335 (2000); People v. Hill, 313 Ill. App. 3d 362, 363-64 (2000)), which is what the panels held in both Johnson, 312 Ill. App. 3d 532, and McCain, 312 Ill. App. 3d 529.
The trial court may summarily dismiss a pro se petition as patently without merit where the allegations do not raise the gist of a constitutional claim. People v. Lopez, 317 Ill. App. 3d 1047, 1052-53, 740 N.E.2d 1179, 1184 (2000). The general requirement that a postconviction petitioner set forth the gist of a meritorious claim means that he must allege sufficient facts from which the circuit court could find a valid claim of deprivation of a constitutional right.
A defendant bears a heavy burden to affirmatively show why the exception to the statute of limitations applies to his case. People v. Lopez, 317 Ill. App.3d 1047, 1054, 740 N.E.2d 1179, 1184 (2000). 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."
Furthermore, the First District recently rejected McCain and Whitford for similar reasons, noting that even if the above quoted statement in Wright is dicta, it should still be followed. People v. Lopez, No. 1-99-1653 (Ill. App. 1st Dist. Dec. 6, 2000). In this case, however, petitioner did not ask to amend his petition and no motion to amend or amended pleading was filed.