No. 2--00--0789

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Modified Upon Denial of Rehearing

Following a bench trial, defendant, Augustin Acosta, was foundguilty of first-degree murder (720 ILCS 5/9--1(a)(1), (a)(2) (West1996)) and subsequently sentenced to natural life imprisonment. Defendant appealed, and this court, on February 3, 1998 (People v.Acosta, 294 Ill. App. 3d 1112 (1998) (unpublished order underSupreme Court Rule 23)), affirmed defendant's conviction andsentence. On April 14, 1998, we denied defendant's petition forrehearing. On March 1, 2000, defendant filed a petition forpostconviction relief. Following a hearing on the State's motionto dismiss the petition, the trial court granted the motion anddenied defendant's petition. This appeal ensued.

Defendant appeals, contending that (1) section 122--1(c) ofthe Post-Conviction Hearing Act (725 ILCS 5/122--1(c) (West 1998)),which defines the limitations period for filing a postconvictionpetition, is unconstitutionally vague; (2) the trial court erred inrefusing to grant an evidentiary hearing on the ground that he wascoerced into testifying by his trial defense counsel; and (3) hisnatural life sentence is unconstitutional under the holding inApprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct.2348 (2000).

The following facts are substantially in the same form as theyappeared in our Rule 23 order affirming defendant's conviction andsentence. The victim, Tyler Lerma-Miller, lived with his motherAnne Marie Lerma and defendant, Anne Marie's boyfriend. Tyler wasborn on January 23, 1994. Beginning in February 1996, defendantoccasionally cared for Tyler during the day while Anne Marieworked. Over the next month Anne Marie began to notice cuts andbruises on Tyler. On the morning of March 8, 1996, Anne Marie leftTyler with defendant while she was at work. Before arriving atwork, she called home and defendant told her that Tyler had faintedwhile defendant was bathing him.

The police officer who responded to the 911 call observedbruises on Tyler's cheek, neck, chest, arms, and legs. He alsonoticed that Tyler's neck was red and swollen. The officerattempted resuscitation, but Tyler exhibited no vital signs.

The pathologist who performed the autopsy noticed variousbruises on Tyler's body. He found hemorrhaging around the lungs,a laceration of the liver, and fractured ribs. He believed thatthe internal injuries were consistent with repeatedly being struckwith a hand or fist. He considered the cause of death to bemultiple injuries due to multiple blunt force trauma.

Defendant, who was 31 years old at the time of trial, admittedthat he struck Tyler in the bathtub that morning but that he didnot intend to hurt him. He also hit him twice with a plasticpitcher that was used to rinse Tyler's hair. Defendant pulledTyler out of the tub by his neck but did not choke him. He carriedTyler to the couch. When he came to dress him, he noticed thatTyler had stopped breathing.

At the conclusion of the trial, the court found defendantguilty of first-degree murder.

In his first contention, defendant does not dispute that hispostconviction petition was untimely filed but argues that section122--1(c) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1(c) (West 1998)), which sets forth the limitations period forfiling a postconviction petition, is unconstitutionally vague and,therefore, the trial court's dismissal of his petition based on itsuntimeliness should be reversed. Defendant admitted in the trialcourt that the statutorily prescribed time for the filing of hispostconviction petition had expired at the time his petition wasfiled but maintained that the delay in filing was not due to hisculpable negligence. In this court defendant does not challengethe trial court's finding regarding the lack of culpable negligencein timely filing his petition but, instead, for the first time,challenges the constitutionality of the statute that establishesthe time limitations within which to file a petition. Defendantacknowledges that he failed to raise this constitutionality claimin the trial court but correctly asserts that the constitutionalityof a criminal statute may be challenged at any time. People v.Wright, 194 Ill. 2d 1, 23 (2000). The constitutionality of astatute is a question of law, which we review de novo. People v.McClanahan, 191 Ill. 2d 127, 132 (2000).

Statutes are presumed to be constitutional, and the partychallenging the constitutionality of a statute has the burden ofestablishing that it is invalid. Wright, 194 Ill. 2d at 24. Dueprocess requires that a statute must not be "so vague" that personsof common intelligence must necessarily guess at its meaning orapplication. People v. Warren, 173 Ill. 2d 348, 356 (1996). However, mathematical certainty in language is not required. Warren, 173 Ill. 2d at 356. Further, acts of the legislature mustbe construed so as to uphold their constitutionality and validityif it can be reasonably done and, if their construction isdoubtful, the doubt will be resolved in favor of the validity ofthe challenged law. People v. Fisher, 184 Ill. 2d 441, 448 (1998).

Section 122--1(c) of the Post-Conviction Hearing Act states asfollows:

"No proceedings under this Article shall be commencedmore than 6 months after the denial of a petition for leave toappeal or the date for filing such a petition if none is filedor more than 45 days after the defendant files his or herbrief in the appeal of the sentence before the IllinoisSupreme Court (or more than 45 days after the deadline for thefiling of the defendant's brief with the Illinois SupremeCourt if no brief is filed) or 3 years from the date ofconviction, whichever is sooner, unless the petitioner allegesfacts showing that the delay was not due to his or herculpable negligence." 725 ILCS 5/122--1(c) (West 1998).

Defendant contends that this statute is vague and uncertainand that any person of ordinary intelligence must necessarily guessat its meaning and differ as to its application. While we agreethat, given the length of the single sentence formulating section122--1(c), the provision may not be easy reading, we do not agreethat it is "so vague" that an individual of ordinary intelligencewould be compelled to guess at its meaning or application.

We pointed out in People v. Hager, 314 Ill. App. 3d 951(2000), that the limitations periods applicable to the filing ofpetitions for postconviction relief are tied to one of the threespecific events set forth in section 122--1(c): (1) the filing orpossible filing of a petition for leave to appeal, (2) the filingof a brief in an appeal of the sentence to our supreme court, or(3) the date of conviction. Hager, 314 Ill. App. 3d at 953. Eachof these events is distinguished from the others in the provisionthrough the legislature's use of the disjunctive conjunction "or." Clearly, any person of ordinary intelligence would recognize thatthe use of "or" in section 122--1(c) means that more than onepossibility exists for the timing of the filing of a postconvictionpetition. Furthermore, section 122--1(c) makes it clear thatdifferent time periods exist as to each event, i.e., within 6months of the denial of a petition for leave to appeal or the duedate of such a petition if none is filed, within 45 days from thefiling of the defendant's brief where the appeal is taken by oursupreme court (or the due date of the brief if none is timelyfiled), or 3 years from the defendant's conviction. The provisionfurther dictates, in stating "whichever is sooner," that it is theearliest of the three specified events to occur that constitutesthe "triggering" date for the running date of the applicable timeperiod and determines whether a petition is timely. See Hager, 314Ill. App. 3d at 954-55.

Although defendant maintains that setting forth a "myriad offiling deadlines" in section 122--1(c) has created a complex andambiguous statute, we believe, conversely, that in wording thestatute as it has the legislature has not created a complex andambiguous provision. Rather, it has addressed every possiblepostconviction means of appeal that a defendant might elect tofollow, including the decision not to appeal, and set forth thespecific time period that applies in each instance. As thereviewing court in People v. Reed, 302 Ill. App. 3d 1007 (1999),recognized, a "logical relationship" exists among the threelimitation periods provided in the statute:

"The six-month limitation applies when there has been anappeal to the appellate court, which triggers 'a denial of a[petition for leave to appeal] or the date for filing such.' The 45-day period applies to cases going directly to oursupreme court (e.g., a capital case) or in cases where a[petition for leave to appeal] is granted. Finally, theprovision limiting postconviction petitions to within threeyears of the date of conviction applies to all other cases,i.e., such as the instant matter where no appeal was taken. Thus, each possible postconviction avenue of appeal (includingthe decision not to appeal) is provided for under the Act withits own discrete and specific time limit for a postconvictionpetition." Reed, 302 Ill. App. 3d at 1009.

Defendant maintains that, because this court in Hagerconstrued the limitations periods in section 122--1(c) differentlythan the Appellate Court, Fourth District, did in People v. Ivy,313 Ill. App. 3d 1011 (2000), we must conclude that the statute isunconstitutionally vague. We disagree. In Ivy, the defendantfiled his postconviction petition within six months of theappellate court's decision affirming the denial of his motion forreconsideration of his sentence but more than three years after hisconviction. The Fourth District determined that defendant'spetition was timely because he was not required to file thepetition until his direct appeal was resolved, even if the directappeal process extended more than three years past the date ofconviction. Ivy, 313 Ill. App. 3d at 1016. In Hager we disagreedwith this conclusion, pointing out that "[s]uch a conclusion iscontrary to the plain language of the Act" and that, if thelegislature had intended this conclusion, it would have providedthat it was the last of the specified events to occur that triggersthe running of the limitations period rather than the earliest. Hager, 314 Ill. App. 3d at 954.

The Fourth District's interpretation of section 122--1(c) inIvy does not establish that the provision is ambiguous but, rather,as the State points out, evinces the reviewing court'sunderstanding of the scope and purpose of the Act. An action forpostconviction relief is a collateral proceeding rather than anappeal from the underlying conviction and sentence. People v.Edwards, 195 Ill. 2d 142, 155 (2001). The Act contains noprovision barring a trial court from considering a postconvictionpetition while a defendant's direct appeal is pending. People v.Williams, 308 Ill. App. 3d 567, 570 (1999). However, the court'sconclusion in Ivy would imply just the opposite. We agree with theState that the difference in our interpretation of section 122--1(c) in Hager and that of the Fourth District in Ivy does notevidence that the provision is unconstitutionally vague but onlythat the Fourth District in reaching its determination misconceivedthe purpose of the Act.

We note that defendant complains that the applicabletriggering date set forth in section 122--1(c) can be discernedonly by referring to the supreme court rules pertaining to thedeadlines for the filing of petitions for leave to appeal andbriefs and that section 122--1(c) fails to direct the reader to thespecific citation for these rules. However, it is well establishedthat a defendant is presumed to know the law and that ignorance ofit is no excuse (People v. Terneus, 239 Ill. App. 3d 669, 672(1992)), and we are in accord with the State's position that thissame principle should be equally applicable to the supreme courtrules.

We conclude that section 122--1(c) is not unconstitutionallyvague. We find, therefore, that the trial court's dismissal ofdefendant's postconviction petition based on its untimeliness wasproper. Defendant's appeal was decided on February 3, 1998. Hissubsequent petition for rehearing was denied on April 14, 1998. Hehad 21 days from the denial of his petition for rehearing, or untilMay 4, 1998, to file a petition for leave to appeal with thesupreme court, which he did not file. He then had six months fromthat date, or until November 4, 1998, to file his petition forpostconviction relief. However, defendant did not file hispetition until March 1, 2000, well beyond the applicablelimitations period set forth in section 122--1(c) and, thus, it wasuntimely filed.

Because of our determination that the defendant's petition wasuntimely, we need not reach his issue regarding whether this causeshould be remanded for an evidentiary hearing. Instead, we proceeddirectly to consideration of defendant's last issue.

In his last contention defendant argues that, under the UnitedStates Supreme Court decision in Apprendi v. New Jersey, 530 U.S.466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), his natural lifesentence, imposed pursuant to section 5--8--1(a)(1)(b) of theUnified Code of Corrections (Code) (730 ILCS 5/5--8--1(a)(1)(b)(West 1996)), was unconstitutional. In Illinois the statutorymaximum prison sentence for first-degree murder is 60 years. 730ILCS 5/5--8--1(a)(1)(a) (West 1996). In imposing the natural lifesentence, the trial court relied in part on its finding that themurder was accompanied by exceptionally brutal and heinous behaviorindicative of wanton cruelty. Defendant asserts that underApprendi any fact that increases a sentence beyond the prescribedstatutory maximum for an offense must be submitted to a jury andproved beyond a reasonable doubt. Because such was not thesituation here, defendant maintains that he was denied due processof law and that, therefore, his sentence should be modified to 60years' imprisonment, the maximum allowable for his murderconviction.

The State initially responds that defendant has waived anychallenge under Apprendi to his natural life sentence because hefailed to raise the issue in his postconviction petition. However,the constitutional dimension of defendant's issue allows us torelax the waiver rule and address it. People v. Wooters, 188 Ill.2d 500, 510 (1999). Accordingly, we reject the State's waiverargument.

Additionally, the State contends that the rule announced inApprendi does not apply retroactively to permit a collateral attackon a conviction and sentence that were final before Apprendi wasdecided. This issue has been previously addressed by the appellatecourt with varying results. See, e.g., People v. Rush, 322 Ill.App. 3d 1014, 1027 (2001); People v. Beachem, 317 Ill. App. 3d 693,706 (2000) (Apprendi does apply retroactively to the review of atimely postconviction petition); People v. Helton, 321 Ill. App. 3d420, 422 (2001); People v. Kizer, 318 Ill. App. 3d 238, 252 (2000)(Apprendi does not apply retroactively to the review of a timelypostconviction petition). However, none of the foregoing casesaddressed whether Apprendi applies to an untimely petition, andhere, as determined above, we are dealing with an untimelypetition. In People v. Jones, 321 Ill. App. 3d 515 (2001), thereviewing court determined that Apprendi did not apply to anuntimely, successive petition. Jones, 321 Ill. App. 3d at 523. The court held that Apprendi cannot be used to resurrect anotherwise procedurally barred postconviction petition. Althoughthe defendant's postconviction petition in Jones was his sixthpetition, we believe the court's rationale still applies here,where defendant's petition was untimely. We find, therefore, thatwhere it has been determined that a postconviction petition isprocedurally barred because of its untimeliness, Apprendi does notapply.

Moreover, in instances where a defendant's postconvictionpetition is both untimely and its tardiness is not excused, webelieve Apprendi should not apply. Here, defendant's petition wasuntimely filed and the trial court determined that defendant failedto show that he was not culpably negligent for its tardiness. Accordingly, we find that Apprendi does not apply retroactively todefendant's untimely filed postconviction petition. We findsupport for our determination in this court's very recent decisionin People v. McGee, No. 2--01-0299 (April 8, 2002). In McGee wefound that Apprendi does not apply retroactively to cases oncollateral review. McGee, slip op. at 11. Therefore, whetherdefendant's petition was untimely or timely filed, Apprendi did notapply to the petition. Consequently, under both our conclusionhere and that reached by this court in McGee, we need not addresswhether the holding in Apprendi rendered unconstitutionaldefendant's natural life sentence entered pursuant to section 5--8--1(a)(1)(b) of the Code.

Defendant also argues, however, that, even if he is notentitled to Apprendi relief due to the untimeliness of hispostconviction petition, the portion of his sentence in excess of60 years, i.e., the extended term, was void, as it was based on acrime, "an aggravated crime of murder," that did not exist. Defendant asserts that, because a void sentence may be challengedat any time, the timing of his petition is irrelevant.

A void judgment is one entered by a court that lacksjurisdiction over the parties or the subject matter, or that lacksthe inherent power to enter the order. People v. Wade, 116 Ill. 2d1, 5 (1987). At the time defendant was sentenced, the sentencingguidelines allowed the trial court to sentence a person to anextended term if the court determined the offense was accompaniedby exceptionally brutal or heinous behavior indicative of wantoncruelty. 730 ILCS 5/5--5--3.2 (b)(2) (West 1996). In imposing asentence of natural life imprisonment on defendant, the court madesuch a determination. Thus, in sentencing defendant to anextended-term sentence, the court was not basing the sentence on acrime that did not exist, as defendant claims, but was actingwithin the authority allowed by the sentencing guidelines.Defendant's sentence, therefore, was not void.

Based on the reasons set forth above, we affirm the judgmentof the circuit court of Du Page County dismissing defendant'spostconviction petition.

Affirmed.

HUTCHINSON, P.J., and GEIGER, J., concur.