People v. McCain, No. 5-97-0988

5th District, 22 March 2000

JUSTICE MAAG delivered the opinion of the court:

Defendant, Joe McCain, was convicted of two counts of attempted murder and three counts of aggravated assault by a St.Clair County jury in February of 1989. After sentencing, McCain appealed. We affirmed his convictions and sentences.People v. McCain, No. 5-89-0246 (unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23)). Defendant'spetition for leave to appeal to the Illinois Supreme Court was denied.

On August 11, 1997, defendant filed a petition in St. Clair County seeking relief under the Post-Conviction Hearing Act(Act), 725 ILCS 5/122-1 et. seq. (West 1996). The circuit court dismissed defendant's petition on October 21, 1997, findingthat defendant's petition was not timely filed, that the defendant was culpably negligent in not filing it on time, and thatnothing in the petition alleged any constitutional violation that was not addressed on direct appeal or otherwise waived.

According to the procedures prescribed in the Post-Conviction Hearing Act, within the first 90 days after a postconvictionpetition is filed, the trial court is required to review the petition to determine whether it is frivolous or patently withoutmerit. 725 ILCS 5/122-2.1(a)(2) (West 1996). If the court finds the petition to be frivolous and without merit, the court"shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching thedecision." 725 ILCS 5/122-2.1(a)(2) (West 1996).

In the summary dismissal stage, the trial court is required to make an independent assessment as to whether the allegationsin the petition, when liberally construed and taken as true, set forth a constitutional claim for relief. The court is foreclosedfrom engaging in any fact-finding, or any review of matters beyond the allegations of the petition. People v. Coleman, 183Ill. 2d 366, 701 N.E.2d 1063 (1998). During that stage, the State has no opportunity to raise any arguments against thepetition. People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102, 106 (1996). Summary dismissal is a process that existsto dispose of petitions that are frivolous in nature and patently without merit. To survive dismissal at this stage, the petitionmust only present "the gist of a constitutional claim." Gaultney, 174 Ill. 2d at 418, 675 N.E.2d at 106.

In the dismissal order, the trial court did not find that the defendant's petition was frivolous and patently without merit.Rather, the trial court found that the petition was untimely and determined that the constitutional issues raised in the petitionwere either addressed on direct appeal or otherwise waived.

In our view, the trial court exceeded this very limited determination and assumed the adversarial role of the prosecutor.Here, the court raised issues of timeliness and res judicata, and then went on to make findings of fact and decide thoseissues. Likewise, the determination of whether a petitioner is or is not culpably negligent in filing a petition late requires thetrial court to make factual findings and assess the petitioner's credibility. A court cannot act as an advocate and a judge. Atthis stage of the proceedings, the court should only determine whether the petition alleges constitutional deprivations, notwhether the petitioner will ultimately succeed on those claims. In this case, the review was not limited to whether the issuesset forth "the gist of a constitutional claim." Whether the claims will withstand a prosecutor's motion to dismiss is reservedfor another day.

In regard to the timeliness issue, we note that the Illinois Supreme Court has ruled that compliance with the time limits insection 122-1 of the Act is not a jurisdictional prerequisite to maintaining a postconviction petition. It is a statute oflimitations. People v. Wright, No. 84721, slip. op. at 6 (November 18, 1999). Thus, a defendant's failure to file his petitionwithin the time limits prescribed in the Act does not deprive the trial court of jurisdiction to consider the petition. People v.Wright, slip. op. at 6. A petition's untimeliness does not mean that it necessarily lacks merit. If an untimely petitiondemonstrates that a defendant suffered a deprivation of constitutional magnitude, a dutiful prosecutor may waive theprocedural defect.

Based upon the record before us, we find that the court went beyond the limited review contemplated by section 122-2.1(a)(2) of the Act (725 ILCS 5/122-2.1(a)(2)). The court did not find that the petition was frivolous and without merit. Inour view, the defendant met the very low threshold of presenting the "gist" of a constitutional claim. Accordingly, wereverse and remand this case back to the trial court with instructions that the trial court docket this petition for considerationin accordance with the Post-Conviction Hearing Act. People v. Coleman, 183 Ill. 2d 366, 701 N.E.2d 1063 (1998).

Reversed and remanded with instructions.

HOPKINS and KUEHN, JJ., concur.