FIFTH DIVISION
January 24, 2003

No. 1-00-3452

In 1984, following a jury trial, defendant, James Turner, wasconvicted of murder and sentenced to 40 years in prison. On May 2,1986, defendant's conviction and sentence were affirmed by thiscourt on direct appeal. People v. Turner, 143 Ill. App. 3d 417(1986).

On June 1, 1995, defendant filed a pro se postconvictionpetition. The trial court appointed counsel on June 19, 1995. OnMarch 29, 2000, defendant's appointed counsel filed an amendedpostconviction petition. On September 14, 2000, the trial courtdismissed the amended petition without an evidentiary hearing.

On appeal, defendant argues that dismissal of hispostconviction petition without an evidentiary hearing was improperwhere the allegations in the petition made a substantial showing ofa constitutional violation.

For the reasons that follow, we affirm the decision of thetrial court.

I. BACKGROUND

On January 13, 1984, defendant was convicted of murder. Defendant's conviction arose from the death of Roy Peterson. Briefly, the facts adduced at the jury trial established thatdefendant was indicted along with a codefendant, Eleanor Peterson,for the beating, strangling and scalding murder of Eleanor'shusband Roy. The events transpired over a 24-hour period,culminating in Roy's death in the early morning hours of August 12,1983. In People v. Turner, 143 Ill. App. 3d 417, we set forth indetail the facts supporting defendant's conviction and sentence. To the extent that facts contained in that opinion pertain to theissues defendant raises in his petition, we will repeat them as weconsider each issue.

On June 1, 1995, defendant filed a pro se postconvictionpetition. The petition asserted defendant's arrest wasunconstitutional and that his confession was involuntary. On June19, 1995, the trial court appointed counsel to represent defendant. On June 21, 1995, the State moved to dismiss the petition on thegrounds that it was untimely, barred by res judicata, and failed tomake a substantial showing of a constitutional violation. Therecord does not reflect, nor has either party provided, a ruling onthat motion.

On March 29, 2000, defendant's counsel filed a documententitled "supplemental petition." The supplemental petition didnot contain the original postconviction petition allegations. Thesupplemental petition alleged that defendant was denied hisconstitutional right to decide whether to tender a jury instructionfor the lesser-included offense of involuntary manslaughter. OnJune 1, 2000, the State moved to dismiss the petition alleging thepetition was untimely and failed to make a substantial showing ofa constitutional violation.

On September 14, 2000, the trial court, following argument bythe parties, dismissed the petition. The court noted:

"There is no question that the statute of limitationswill dispose of this case ***. I will not dismiss it onthe basis of the statute of limitations. I will say thatI will consider it, whether or not there should have beentendered an involuntary murder instruction. In thatregard, happily, for the purpose of this ruling, I wasthe trial judge. *** In light of all the attendantcircumstances, I would in fact respectfully dismiss thepetition based upon the fact that notwithstanding thereis a valid motion under the statute of limitationsargument by the State, I am dismissing it. In point offact, even if I overlooked that and said he didn't knowuntil he had counsel to review the transcripts and filethe supplemental petition, that I would not have, underany circumstances in this case, given the instruction,even if tendered, on the voluntary [sic] manslaughter."

Defendant now appeals from that dismissal.

II. ANALYSIS

Defendant argues that dismissal of his supplementalpostconviction petition without an evidentiary hearing was improperwhere his allegation made a substantial showing of a constitutionalviolation. Specifically, defendant argues that although the factsdeveloped at his jury trial warranted an instruction on the lesser-included offense of involuntary manslaughter, his trial attorneydecided not to tender a jury instruction on involuntarymanslaughter. Defendant maintains that the decision whether torequest an instruction on a lesser-included offense was afundamental personal decision, and therefore he was deprived ofthis constitutional right.

A. Timeliness

Initially, the State responds that defendant's pro sepetition, filed eight years past the statutory deadline, and hisamended "supplemental" petition, filed five years after that,should be dismissed where they are untimely. We agree.

The Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 etseq. (West 1994)) provides a mechanism by which criminal defendantscan assert that their convictions and sentences were the result ofa substantial denial of their rights under the United StatesConstitution, the Illinois Constitution, or both. See 725 ILCS5/122-1 (West 1994). An action for postconviction relief is acollateral proceeding and is not an appeal from the underlyingconviction and sentence. People v. Mahaffey, 194 Ill. 2d 154, 170(2000). In order to be entitled to postconviction relief, adefendant bears the burden of establishing a substantialdeprivation of federal or state constitutional rights in theproceedings that produced the judgment being challenged. People v.Morgan, 187 Ill. 2d 500, 528 (1999).

The Act provides a three-stage process for the adjudication ofpostconviction petitions. In the first stage, the circuit courtdetermines whether the postconviction petition is "frivolous or ispatently without merit." 725 ILCS 5/122-2.1(a)(2) (West 1994). TheState does not have an opportunity to raise any arguments againstthe petition during this summary review stage. People v. Gaultney,174 Ill. 2d 410 (1996). The circuit court is required to make anindependent assessment in the summary review stage as to whetherthe allegations in the petition, liberally construed and taken astrue, set forth a constitutional claim for relief. People v.Coleman, 183 Ill. 2d 366 (1998). To survive dismissal at thisstage, the petition must only present " 'the gist of aconstitutional claim.' " People v. Edwards, 197 Ill. 2d 239, 244(2001), quoting Gaultney, 174 Ill. 2d at 418.

If the petition is found to be "frivolous" or "patentlywithout merit," the court "shall dismiss the petition in a writtenorder, specifying the findings of fact and conclusions of law itmade in reaching its decision." 725 ILCS 5/122-2.1(a)(2) (West1994). If the petition survives the initial stage, the court mayappoint counsel to represent an indigent defendant, and counselwill have an opportunity to amend the petition. 725 ILCS 5/122-1 etseq. (West 1994); People v. Watson, 187 Ill. 2d 448 (1999). TheState then may file a motion to dismiss the petition. 725 ILCS5/122-5 (West 1994); Gaultney, 174 Ill. 2d at 418. If the Statedoes not file a motion to dismiss or if the circuit court deniesthe State's motion, the circuit court will proceed to the thirdstage and conduct an evidentiary hearing on the merits of thepetition. 725 ILCS 5/122-6 (West 1994); People v. Boclair, 202 Ill.2d 89, 100 (2002).

Section 122-1 of the Act governs the limitations period on theinstitution of postconviction actions. The legislature has twiceamended section 122-1. In this case, the controlling version ofthe statute is the version in effect on June 1, 1995, when thepetition was filed. See People v. Bates, 124 Ill. 2d 81, 84-86(1988). At that time, section 122-1 stated, in relevant part:

"No proceedings under this Article shall be commencedmore than 6 months after the denial of a petition forleave to appeal or the date for filing such a petition ifnone is filed or issuance of the opinion from theIllinois Supreme Court or 6 months after the date of theorder denying certiorari by the United States SupremeCourt or the date for filing such a petition if none isfiled or 3 years from the date of conviction, whicheveris later, unless the petitioner alleges facts showingthat the delay was not due to his culpable negligence."725 ILCS 5/122-1 (West 1994).

The supreme court has recently held that the Act does notauthorize the dismissal of a postconviction petition during theinitial stage based on untimeliness. Boclair, 202 Ill. 2d at 102. The court concluded that the matter of untimeliness should be leftfor the State to assert during the second stage of thepostconviction proceedings.

In this case the State moved to dismiss the petition asuntimely following the appointment of counsel, i.e., at the secondstage. Pursuant to the controlling version of the statute, theright to file a postconviction action expired as soon as the laterof any of the listed specified time periods had elapsed. In thiscase, the last such event to transpire was the expiration of three years after the date of defendant's sentencing on January 13, 1984. Defendant's pro se postconviction petition was filed on June 1,1995, over eight years past the January 13, 1987, deadline. Accordingly, the action was commenced too late.

In addition, we note that defendant has effectively abandonedthe arguments contained in his pro se petition, and alleged anentirely new argument in his supplemental position. If we were toconsider the date defendant filed his "supplemental" petition, thepetition which contains the argument before this court, defendant'spetition, which was filed March 29, 2000, would be late by morethan 13 years.

Defendant argues that even if this court were to hold thatdefendant's petition was untimely, we should hold that the delaywas not due to his culpable negligence. Specifically, the claimadvanced in defendant's supplemental petition was based upon thedefendant's right to decide whether to tender a jury instruction ona lesser-included offense. Defendant maintains that becauseIllinois did not recognize this personal right until October 20,1994, when the supreme court handed down the decision in People v.Brocksmith, 162 Ill. 2d 224 (1994), he should be excused for hisdelay in filing. We disagree.

A petitioner who does not file his petition within thelimitation period set forth in section 122-1 must show the "delaywas not due to his culpable negligence." 725 ILCS 5/122-1 (West1994). To show the absence of culpable negligence, a petitionermust allege facts justifying the delay. People v. Bates, 124 Ill.2d 81, 88 (1988). A trial court's determination whether the delaywas due to a defendant's culpable negligence will be reversed onlyif the determination is manifestly erroneous. People v. Caballero,179 Ill. 2d 205, 214 (1997); People v. Van Hee, 305 Ill. App. 3d333, 336 (1999). Lack of culpable negligence is very difficult toestablish. People v. Burris, 315 Ill. App. 3d 615, 617 (2000).

Defendant's argument is unavailing where Brocksmith does notapply retroactively to this case. Decisions which announce "newrules" are not generally applied retroactively to cases pending oncollateral review. People v. Gardner, 331 Ill. App. 3d 358, 365(2002). A case establishes a "new rule" within the meaning ofTeague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060(1989), if it " 'breaks new ground,' 'imposes a new obligation onthe States or Federal Government,' or was not 'directed byprecedent existing at the time the defendant's conviction becamefinal. [Citation.]' " (Emphasis omitted.) Graham v. Collins, 506U.S. 461, 467, 122 L. Ed. 2d 260, 269, 113 S. Ct. 892, 897 (1993). The majority in Brocksmith acknowledged that the supreme court hadpreviously held that "the decision whether to tender a lesserincluded offense instruction involves matters of trial strategy. (People v. Barnard, 104 Ill. 2d 218, 232 (1984); People v. Kubat,94 Ill. 2d 437, 485-86 (1983); [Citations].)" Brocksmith, 162 Ill.2d at 228.

The district court in United States ex rel. Scott v. IllinoisDepartment of Corrections, No. 00-8230, (N.D. Ill., Jan. 12, 2001),recognized the holding in Brocksmith as establishing a new rulewhen it denied a habeas corpus petition asserting a violation ofBrocksmith. The court stated:

"As for the substantive issue posed by Scott's firstground for relief, perhaps the most critical factor isthat at the time of Scott's 1993 trial the establishedIllinois law was that such decisions were for counsel(and not for the defendant) to make as a matter of trialtactics and strategy. (People v. Ramey, 152 Ill. 2d 41,54 (1992)). It was only later in 1994, during thependency of Scott's direct appeal that the IllinoisSupreme Court adopted the entirely different rule thatthe decision as to whether or not to tender aninstruction on a lesser included offense belonged to thedefendant himself or herself rather than to defensecounsel. (People v. Brocksmith, 162 Ill. 2d 224, 229-30(1994)).

It would of course be absurd to hold that Scott'strial counsel had fallen below the Strickland thresholdof adequate assistance because the lawyer did not have acrystal ball that would have anticipated such afundamental change in Illinois law that did not comeuntil the following year." Scott, slip op. at 4-5.

Under Teague, a new constitutional rule of criminal procedureis not applied retroactively to cases that are final before the newrule is announced. Teague, 489 U.S. at 310, 103 L. Ed. 2d at 356,109 S. Ct. at 1075. There are two exceptions. A newconstitutional rule should be applied retroactively to casespending on collateral review if the new rule either (1) places " 'certain kinds of primary, private individual conduct beyond thepower of the criminal law-making authority to proscribe' " or (2)requires observance of those procedures that are implicit in theconcept of ordered liberty. Teague, 489 U.S. at 311, 103 L. Ed. 2dat 356, 109 S. Ct. at 1075-76, quoting Mackey v. United States, 401U.S. 667, 692, 28 L. Ed. 2d 404, 420, 91 S. Ct. 1160, 1180 (1971). The first Teague exception has no application to this case. In order for retroactive application to apply under the secondTeague exception, a rule must be aimed at improving the accuracy ofthe trial and be of such importance that it alters ourunderstanding of the bedrock procedural elements essential to afair trial. People v. Kizer, 318 Ill. App. 3d 238, 247 (2000),citing Sawyer v. Smith, 497 U.S. 227, 242, 111 L. Ed. 2d 193, 211,110 S. Ct. 2822, 2831 (1990).

Teague was adopted by our supreme court in People v. Flowers,138 Ill. 2d 218, 237 (1990). The second Teague exception is to benarrowly construed. People v. Kizer, 318 Ill. App. 3d at 250. Thepurpose of narrowly construing the second exception is to promotefinality in criminal proceedings. Teague, 489 U.S. at 309, 103 L.Ed. 2d at 355, 109 S. Ct. at 1074. Indeed, the court in People v.Beachem, 317 Ill. App. 3d 693, 702 n.4 (2000), pointed out thatneither the United States Supreme Court nor the Illinois SupremeCourt has ever found that a new rule qualifies for retroactiveapplication under the second Teague exception.

There is no Illinois case directly on point on the issue ofwhether the holding in Brocksmith should be retroactively applied. As well, we note that defendant fails to address this issue in hisopening brief, nor does he respond to the State's argument in hisreply brief. A review of cases addressing the retroactiveapplication of new constitutional rules to cases on collateralreview, reveals that the new criminal procedure rule announced inBrocksmith does not rise to the level of constitutional dimensioncontemplated under Teague. In its ruling that the ultimate decisionto tender a lesser-included offense instruction belongs to thedefendant, the Brocksmith court relied upon the ABA Standards forCriminal Justice