People v. Bumpers

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People v. Bumpers

State: Illinois

Court: 1st District Appellate

Docket No: 1-06-1338 Rel

Case Date: 02/22/2008

Preview:Sixth Division February 22, 2008

No. 1-06-1338 THE PEOPLE OF THE STATE OF ILLINOIS Plaintiff-Appellee, v. WHURRY BUMPERS, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

98 CR 6292

Honorable Marcus R. Salone, Judge Presiding

PRESIDING JUSTICE McBRIDE delivered the opinion of the court: In November 2000, defendant Whurry Bumpers pled guilty to the June 1997 first-degree murder of Charlene Williams. Pursuant to an agreement, the trial court sentenced defendant to a term of 45 years in the Illinois Department of Corrections (IDOC). In November 2004, defendant mailed his pro se postconviction petition to the trial court. In his petition, defendant alleged that he was denied his right to due process because the trial court failed to admonish him that he would have to serve a 3-year period of mandatory supervised release (MSR) in addition to his 45year sentence. The State filed a motion to dismiss defendant's pro se postconviction petition as untimely. Following a hearing, the trial court granted the State's motion. On appeal, defendant argues that (1) the trial court erred in dismissing his postconviction petition because he made a substantial showing that he was denied his right to due process when he was not admonished about the 3-year term of MSR and he was not culpably negligent in filing his petition a year late; and (2) he received unreasonable assistance of postconviction counsel due to his counsel's failure to amend the postconviction petition to include a claim that the delay in

1-06-1338 filing was not a result of defendant's culpable negligence. On November 28, 2000, the trial court conducted defendant's plea hearing. After a Supreme Court Rule 402 conference (177 Ill. 2d R. 402) was held, defendant pled guilty to firstdegree murder in exchange for a sentence of 45 years. At the plea hearing, the State offered the following factual basis. On June 29, 1997, defendant was with Charlene Williams in an alley near 7700 South Western in Chicago. Defendant and Williams smoked cocaine and engaged in sexual intercourse. At some point, defendant thought that Williams was taking money and cocaine from his pocket so he grabbed her throat and continued squeezing until she was dead. Defendant then fled the scene. Defendant gave a handwritten confession to the police describing those facts. Additionally, vaginal swabs were taken from Williams and a DNA analysis of the semen found matched defendant. The State also offered proof of defendant's prior convictions in three cases. In the first case, defendant pled guilty to criminal sexual assault and unlawful restraint. Defendant pled guilty in the second to counts of aggravated criminal sexual assault, aggravated battery and aggravated unlawful restraint. In the final case, defendant was convicted of retail theft. Following the imposition of the sentence, the trial court explained the various rights that defendant was forfeiting by pleading guilty. The court admonished defendant about the process he needed to follow in order to withdraw his guilty plea and file a posttrial motion. However, the trial court failed to advise defendant that he would be required to complete a 3-year term of MSR in addition to his 45-year sentence. At the conclusion of the hearing, defendant pled guilty in another case for failure to register as sex offender and the trial court sentenced defendant to one

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1-06-1338 year in the IDOC to be served concurrent with his 45-year sentence. No admonishments were given related to this plea. Defendant did not file any posttrial motions or pursue a direct appeal. On August 6, 2003, defendant filed a pro se motion requesting a copy of his trial record because "there were possibly some errors made during the plea bargain and we need to review the record to insure Mr. Bumpers justice." On August 19, 2003, the trial court denied defendant's motion because the court did not have jurisdiction to grant the request. On November 24, 2004, defendant mailed his pro se postconviction petition to the trial court, which was entered on December 9, 2004. In this petition, defendant contended that he was denied his right to due process because the trial court failed to advise him about the 3-year period of MSR to follow his 45-year sentence. Defendant attached his affidavit in support of his petition. In his affidavit, defendant stated that "the application of the 3 year MSR term came as a complete surprise, where [he] learned of its application to [his] sentence in the year of 2003" by the clinical services department in the IDOC. In December 2004, the court appointed the public defender to represent defendant on his postconviction petition. In September 2005, defendant's attorney filed a supplemental postconviction petition which realleged defendant's due process claim and raised a new claim that defendant was not properly admonished about his appellate rights as required by Supreme Court Rule 605(c) (210 Ill. 2d R. 605(c)). Defendant's counsel also attached a copy of the transcript from defendant's November 2000 plea hearing. In March 2006, the State filed a motion to dismiss defendant's postconviction petition.

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1-06-1338 The State contended that defendant's petition was untimely and defendant failed to show that the delay was not due to defendant's culpable negligence. In April 2006, the trial court conducted a hearing on the State's motion to dismiss. Defendant's attorney offered an affidavit from defendant's father to the court and the State. Defendant's father explained that defendant asked him to get defendant's trial records to see if there was a problem with defendant's plea. Defendant's father attempted to get the transcripts on August 10, 2003, but was told there were no transcripts because it was a plea. He returned on July 27, 2004, and was told he could get the transcripts if he paid $60. On August 10, 2004, defendant's father paid the clerk and was told it would take about two weeks to receive the records. At the conclusion of the hearing, the trial court granted the State's motion, finding that defendant was "negligent" and brought his petition in an "untimely manner." This appeal follows. On appeal, defendant argues that the trial court erred in dismissing his postconviction petition because he made a substantial showing that he was denied his right to due process when the trial court failed to advise him about a 3-year term of MSR to be served in addition to his 45year sentence and he was not culpably negligent in filing his petition a year late. The State maintains that defendant was culpably negligent in filing his untimely petition. Two points in this case are undisputed: (1) that the trial court failed to inform defendant that he would be required to serve a 3-year period of MSR in addition to his 45-year sentence; and (2) that defendant's pro se postconviction petition was not filed within the appropriate statutory time frame. The Illinois Post-Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1

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1-06-1338 through 122-8 (West 2004)) provides a tool by which those under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both. 725 ILCS 5/122-1(a) (West 2004); People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). Postconviction relief is limited to constitutional deprivations which occurred at the original trial. Coleman, 183 Ill. 2d at 380. We first consider whether defendant was culpably negligent in filing his postconviction petition. Under section 122-1(c) of the Post-Conviction Act, "[i]f 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 petitioner alleges facts showing that the delay was not due to his or her culpable negligence." 725 ILCS 5/122-1(c) (West 2004). Here, the date of defendant's conviction was November 28, 2000, and his postconviction petition was filed with the trial court on December 9, 2004. A trial court's findings of fact regarding whether a petition's untimeliness was due to culpable negligence will not be reversed unless manifestly erroneous, but the trial court's ultimate conclusion as to whether the established facts demonstrate culpable negligence is reviewed de novo. People v. Ramirez, 361 Ill. App. 3d 450, 452 (2005). Here, the trial court made no findings of fact regarding the timeliness issue, and thus our review is de novo. "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.' " People v. Boclair, 202 Ill. 2d 89, 106 (2002), quoting 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.' " Boclair, 202 Ill. 2d at 106, quoting 65 C.J.S. Negligence

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