No. 2--01--0991

JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

In separate cases, defendant, Ronald Stivers, pleaded guiltyto aggravated criminal sexual assault (720 ILCS 5/12--14(a)(1)(West 1998)) and criminal sexual assault (720 ILCS 5/12--13(a)(1)(West 1998)) and was sentenced to prison terms of 13 years and 9years, respectively. Defendant filed a postconviction petition. The trial court dismissed the petition, holding that the issueswere waived because defendant did not file a direct appeal. Defendant appeals the dismissal of his petition, arguing that thetrial court erred by holding that the failure to directly appealwaives all issues on collateral review. He also contends that hispetition states the gist of a meritorious constitutional claim. Wereverse and remand.

On April 16, 1998, in case No. 98--CF--61, defendant wascharged by indictment with criminal sexual assault. On August 6,1998, in case No. 98--CF--119, defendant was charged by informationwith aggravated criminal sexual assault. Both charging instrumentsalleged that defendant committed the offenses in 1994.

In case No. 98--CF--61, defendant pleaded guilty to criminalsexual assault in exchange for a nine-year sentence. In case No.98--CF--119, he pleaded guilty to aggravated criminal sexualassault in exchange for the State's agreement to recommend asentence of no more than 20 years' imprisonment. Following ahearing, the trial court sentenced him to 13 years in prison. Defendant did not file a direct appeal.

On January 11, 2001, defendant filed a pro se postconvictionpetition, which he later amended, raising numerous issues. Thetrial court summarily dismissed the petition, holding thatdefendant waived the issues by not moving to withdraw his plea orfiling a direct appeal. Defendant appeals.

Defendant argues that the trial court incorrectly appliedsupreme court precedent holding that an issue that could have beenraised in an earlier direct appeal is waived for purposes of apostconviction petition. See People v. Hampton, 165 Ill. 2d 472,479 (1995). He argues that, where a defendant does not file adirect appeal, he is not precluded from raising issues in apostconviction proceeding. Citing People v. Vilces, 321 Ill. App.3d 937 (2001), the State responds that, where defendant neithermoves to withdraw his plea nor pursues a direct appeal, he isprecluded from raising in a postconviction petition most issuesconcerning the validity of the plea.

The Post-Conviction Hearing Act (725 ILCS 5/122--1 et seq.(West 2000)) provides a three-stage process to adjudicate petitions filed under it. In the first stage, the circuit courtdetermines whether the petition is "frivolous or is patentlywithout merit." 725 ILCS 5/122--2.1(a)(2) (West 2000). The court,without input from the State, must assess in the summary reviewstage whether the petition's allegations, liberally construed andtaken as true, set forth a constitutional claim for relief. Peoplev. Gaultney, 174 Ill. 2d 410, 418 (1996). The court may not engage in any fact finding or review matters beyond the petition'sallegations. People v. Coleman, 183 Ill. 2d 366, 380-81 (1998). To survive dismissal at this stage, the petition must presentonly "the gist of a constitutional claim." Gaultney, 174 Ill. 2dat 418. If the court finds the petition frivolous or patentlywithout merit, it must dismiss it. 725 ILCS 5/122--2.1(a)(2) (West2000). If the petition survives the initial stage, the court mayappoint counsel to represent an indigent defendant and counsel willhave an opportunity to amend the petition. People v. Watson, 187Ill. 2d 448, 451 (1999).

The Illinois Supreme Court has held that a trial court maydismiss a postconviction petition at the first stage only if thepetition fails to meet the "low threshold" of presenting the gistof a constitutional claim. People v. Edwards, 197 Ill. 2d 239, 244(2001); see also People v. Boclair, 202 Ill. 2d 89, 100-01 (2002). Particularly, in Boclair, the supreme court ruled that a trialcourt may not dismiss a postconviction petition at the first stagebecause it is untimely. Boclair, 202 Ill. 2d at 100-01. The courtemphasized the plain statutory language that the court may dismissa petition at the initial stage only if it is "frivolous or ***patently without merit." Boclair, 202 Ill. 2d at 100-01. Thecourt stated that timeliness is akin to an affirmative defense thatthe State can either raise, waive, or forfeit. Boclair, 202 Ill.2d at 101.

Like timeliness, waiver is in the nature of an affirmativedefense that the State may either raise, waive, or forfeit. Whether an issue is waived does not determine whether an issue hasmerit. Similar to the statute of limitations question in Boclair,the State should be required to raise any waiver issue in a motionto dismiss or forfeit the issue. The trend of recent cases such asBoclair and Edwards is to curtail trial courts' authority todispose of postconviction petitions at the first stage. Pleadingniceties and procedural technicalities should not be considered,and early dismissal is warranted only where a petition'sallegations clearly lack substantive merit.

Under this standard, defendant's petition meets the "lowthreshold" of stating the gist of a constitutional claim. Defendant alleges that his trial counsel was ineffective because hedid not move to dismiss the charging instruments on statute oflimitations grounds. Although the general statute of limitationsfor felonies is three years (720 ILCS 5/3--5(b) (West 2000)), theindictment and information, issued in 1998, allege that defendantcommitted his crimes in 1994 and do not allege any facts that wouldextend the statute of limitations. See People v. Gwinn, 255 Ill.App. 3d 628, 631 (1994) (if charging instrument shows on its facethat statute of limitations has run, it must allege facts invoking an extended limitations period or tolling the statute oflimitations).

At the relevant time, section 3--6(h) of the Criminal Code of1961 provided a five-year statute of limitations for specified sexcrimes "if the victim reported the offense to law enforcementauthorities within 2 years after the commission of the offense." 720 ILCS 5/3--6(h) (West 1998) (now codified, as amended, at 720ILCS 5/3--6(i) (West 2000)). However, the charging instrumentshere do not specifically allege reliance on section 3--6 or thatthe victims reported the offenses within two years.

Defendant's petition states, at a minimum, the gist of a claimthat counsel was ineffective for not moving to dismiss the charginginstruments. It is conceivable, of course, that the State couldhave obtained amended charging instruments and that counselaccordingly made a strategic decision to forgo that formality, butwe cannot make that decision from the present record. Defendanthas stated the gist of a constitutional claim and his petitionshould advance to the second stage of the postconviction procedure.

The judgment of the circuit court of Ogle County is reversed,and the cause is remanded.

Reversed and remanded.

HUTCHINSON, P.J., and BOWMAN, J., concur.