People v. Boclair

JUSTICE FREEMAN, specially concurring:

I agree with the thoughts expressed by Justice McMorrow and join in her separate opinion. However, I write separately to note some concerns that I have with respect to the Post-Conviction Hearing Act.

The appeals in this consolidated case arise from the fallout from this court’s opinion in People v. Wright, 189 Ill. 2d 1 (1999). In Wright, this court was asked to determine whether section 122 — 1 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 — 1 (West 2000)), which contains several time provisions for filing petitions, was jurisdictional in nature or was an ordinary statute of limitations. A majority of the court chose the latter. The court, having ruled that the time provisions constituted a statute of limitations, nevertheless stated that the circuit court may dismiss a petition during the summary stage of the post-conviction proceedings if the petition is untimely and fails to assert a lack of culpable negligence. That statement, was, of course, at odds with the holding that the State had to assert the affirmative defense of the statute of limitations, but the court never acknowledged this tension in its opinion. As a result, our appellate court has struggled greatly with the following question: Can the circuit court, sua sponte, raise untimeliness at the first stage of the post-conviction process?

Today’s opinion settles the confusion wrought by Wright. We know now, with certainty, that the time provisions contained in section 122 — 1 constitute an ordinary statute of limitations that can only be raised by the State and not by the circuit court sua sponte. In so holding, the court reaffirms one of the linchpins to the analysis contained in Wright — that time is not an inherent element of the right to bring a post-conviction petition. 202 Ill. 2d at 102. I disagreed with that principle in Wright and continue to do so today. As I noted in my dissent in Wright, the General Assembly has, over the years, shortened the time within which a post-conviction petition may be brought, absent the lack of culpable negligence. At one time, the Act allowed for the filing of a petition up to 20 years after the rendition of a final judgment in a criminal proceeding. Subsequently, the legislature reduced the time period to 10 years. As of January 1, 1996, the General Assembly again amended the section to require that the petition be filed within 45 days of the appellant’s brief on direct appeal or three years from the date of conviction, whichever is sooner. In light of the direction the General Assembly has taken in decreasing the time period in which a post-conviction petition may be filed, I cannot agree that time is not an element to this legislatively created relief.

The court today relies on the plain language of section 122 — 2.1 to hold that if “the legislature intended for a trial judge to sua sponte dismiss a petition as being untimely, it would have so provided in section 122— 2.1(a)(2) of the Act.” 202 Ill. 2d at 100-01. Thus, because timeliness is not listed in section 122 — 2.1, the court reasons that the legislature did not intend for timeliness to be assessed during the summary dismissal stage. In my view, a petition that is filed outside the time provisions contained in section 122 — 1 has “no basis in law.” It falls under the court’s definition of a “frivolous” petition (202 Ill. 2d at 101) and is thus subject to dismissal at the summary stage. For this reason, I find the court’s plain language analysis to be unpersuasive. Further, the court’s analysis is unnecessary given Wright’s holding that section 122 — 1 is to be treated as an ordinary statute of limitations. See 202 Ill. 2d at 130 (McMorrow, J., specially concurring, joined by Freeman, J.).

Despite these views, I concur in today’s opinion for several reasons. First, I believe that today’s result follows from Wright. See 202 Ill. 2d at 131 (McMorrow, J., specially concurring, joined by Freeman, J.). Although I disagreed with the holding in Wright, it is clear to me that this court will not revisit the issue and that stare decisis applies. In light of the fact that I have registered my disagreement previously, I will recognize this portion of Wright as the law and follow it, particularly now that the holding in Wright has been clarified. See People v. Barrow, 195 Ill. 2d 506, 542-43 (2001) (Freeman, J., concurring). Second, and perhaps more importantly, with the rendition of this opinion as well as Wright, I believe that a written record has been laid down by this court and that the matter should now be taken up by the General Assembly.

The questions in this case and in others concerning the procedural aspects of the Act need the attention of our legislature. In my opinion, the fact that the time provision is contained in the very first section of the Act seems to indicate that the legislature deems it to be a threshold inquiry made either before or concurrent with the “frivolous” and “patently without merit” determinations required by section 2.1. As such, I believe that the better course to follow in such cases is to require that the petitioner show the timeliness of his or her post-conviction action. However, this court has held that the time provisions contained in section 122 — 1 are to be treated as an ordinary statute of limitations, to be raised by the State as an affirmative defense. The court takes this view, it appears, so that meritorious claims will be saved. However, by its very nature, a statute of limitations works to defeat all claims regardless of whether they are meritorious or not. In other words, the meritoriousness of the action is irrelevant. An ordinary statute of limitations is always raised prior to proceeding on the merits of a cause of action. That is why the party seeking to raise the affirmative matter is charged with the responsibility of pleading it. However, during the summary stage of a post-conviction action, there is no adversary yet in place to raise the matter. Many of the problems our courts have struggled with in these types of cases could be easily resolved by the addition of provisions to the Act which would allow a trial judge to dismiss a petition, without prejudice, for lack of timeliness. In that way, a petitioner would be able to amend the petition to include the necessary allegations concerning the lack of culpable negligence. This is a procedure followed by the federal courts in habeas corpus actions and bears consideration by our legislature. See, e.g., Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (and cases cited therein).

As I stated earlier, the court today, consistent with Wright, holds that the matter of timeliness is an affirmative defense that the State must raise or waive. The court defends its statutory interpretation by noting that “[i]f an untimely petition demonstrates that a defendant suffered a deprivation of constitutional magnitude, a dutiful prosecutor may waive that procedural defect during the second stage of the post-conviction proceedings.” 202 Ill. 2d at 101-02. I find this language troubling on several levels. My years on this court lead me to conclude that the State tends to raise and litigate all of its defenses when a conviction is challenged, and very rarely, if ever, does it concede a “procedural defect” merely because a petition “demonstrates” a “deprivation of constitutional magnitude.” See, e.g., People v. Collins, 202 Ill. 2d 59 (2002). Even putting aside the concerns I have based on my experience, I believe that serious problems can, and most likely will, arise when prosecutors waive timeliness in certain cases but do not do so in others, especially when the claims are similar in nature. Arguments concerning the arbitrariness of State action will loom on the horizon. In pointing this out, I want to alert the General Assembly to some of the legal implications that this court’s interpretation of the statute will have in this context.

Finally, I should also mention the culpable-negligence exception to the time provision. The court today appears to hold as it does because of a fear that claims of actual innocence may go unheard if they are not timely. See 202 Ill. 2d at 102 . I must point out that the culpable-negligence exception is not grounded in terms of “actual innocence.” Nor is the exception met due to the meritoriousness of the claims. On the contrary, the inquiry surrounding whether a petitioner’s delay in filing was caused by his or her culpable negligence has nothing to do with the merits of the claims petitioner asserts. Rather, the inquiry is grounded upon whether the petitioner is at fault for not raising the matter within the time period set by the legislature. While some of the circumstances surrounding claims of actual innocence may meet this requirement, some may not. Thus, I believe it unwise for the court to equate, in any manner, the culpable-negligence requirement of section 122 — 1 with claims of actual innocence. Indeed, the General Assembly may wish to reconsider the phrasing of the safety valve of the Act in order to expressly accommodate claims of actual innocence that arise past the meager time limitations that the Act currently provides.

I am of the view that the General Assembly needs to address some of these problematic issues that have developed since the passage of the amendments decreasing the time available for challenges made pursuant to the Act. The steady flow of cases coming to this court with procedural quirks arising from the amendments leads me to believe that problems will continue to mount in this area. Although I have no doubt in this court’s ability to adapt to many of the circumstances that will arise, I cannot ignore the fact that the Act we are asked to interpret is legislatively created. In light of the important role the Act plays in our criminal justice system, I believe that the General Assembly should consider revisiting the Act in the near future.