People v. Stoecker ( 2008 )

No. 3--07--0144
_________________________________________________________________
Filed July 21, 2008
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 10th Judicial Circuit,
) Stark County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 96--CF--14
)
RONALD L. STOECKER, ) Honorable
) Stuart P. Borden,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE SCHMIDT delivered the opinion of the court:
_________________________________________________________________
A jury convicted the defendant, Ronald L. Stoecker, of first
degree murder (720 ILCS 5/9--1(a)(2) (West 1996)) and aggravated
criminal sexual assault (720 ILCS 5/12--14(a)(2) (West 1996)).
The court sentenced the defendant to terms of imprisonment of
natural life and 30 years, respectively. This court affirmed the
defendant's convictions on direct appeal. People v. Stoecker,
No. 3--98--0750 (1999) (unpublished order under Supreme Court
Rule 23). Thereafter, the defendant filed a petition for
postconviction relief. This petition, which was amended four
times either pro se or by counsel, was dismissed by the trial
court at the second stage. The defendant appealed. On appeal,
the defendant argues that he was not culpably negligent for the
late filing of the petition. We affirm.
FACTS
In April 1997, the defendant was charged with first degree
murder (720 ILCS 5/9--1(a)(2) (West 1996)) and aggravated
criminal sexual assault (720 ILCS 5/12--14(a)(2) (West 1996)) of
15-year-old Jean Marie Humble. The defendant was tried on these
charges and convicted. On July 17, 1998, the court sentenced him
to terms of imprisonment of natural life for first degree murder
and 30 years for aggravated criminal sexual assault.
The defendant appealed to this court. On December 3, 1999,
we affirmed the defendant's conviction. Stoecker, No. 3--98--
0750.
On May 2, 2005, the defendant filed a pro se petition under
section 2--1401 of the Code of Civil Procedure for relief from
judgment. 735 ILCS 5/2--1401 (West 2004). The court construed
this filing as a petition for postconviction relief (725 ILCS
5/122--1 et seq. (West 2004)) and dismissed the petition on
August 19, 2005. The defendant filed a motion to reconsider,
which the court granted. The court also ordered that the only
issues upon reconsideration were the defendant's assertions of
ineffective assistance of counsel at the trial and appellate
levels. However, the defendant chose to present a number of
other issues. In addition to the defendant's first petition for
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postconviction relief, the defendant, acting either pro se or by
counsel, filed four subsequent amended petitions for
postconviction relief.
In the fifth petition (hereinafter the fifth amended
petition), the defendant alleged that on January 11, 2000, he
retained private counsel to represent him in postconviction
proceedings. Counsel assured the defendant that his petition
would be timely filed. On March 25, 2002, counsel notified the
defendant that he did not have a constitutional violation to
present for postconviction review. The defendant alleged that
counsel did not return the record to him until April 2004.
The trial court considered, and dismissed, the defendant's
fifth amended petition for postconviction relief. The court
assumed, for argument's sake, that the petition was timely filed,
addressed only the issue of ineffective assistance of counsel,
and concluded that the defendant did not have a meritorious
constitutional allegation of ineffective assistance of counsel.
The defendant appealed the trial court's dismissal of his
pro se fifth amended petition for postconviction relief. In this
petition, the defendant asserts, inter alia, that he is: (1) not
culpably negligent for the late filing of his postconviction
petition because his counsel assured him the petition would be
timely filed; and (2) actually innocent of the crimes for which
he was convicted, and requests a retest of biological evidence in
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order to advance this claim.
ANALYSIS
On appeal, the defendant first asserts that he is not
culpably negligent for the late filing of his petition for
postconviction relief. The defendant contends that he relied on
the assurance of Ronald Hamm, his retained postconviction
counsel, that his postconviction petition would be timely filed.
The Post-Conviction Hearing Act provides a mechanism for any
person imprisoned in a penitentiary to bring an allegation of a
substantial denial of his constitutional rights at trial. 725
ILCS 5/122--1(a) (West 2004). A postconviction petition is a
collateral proceeding and not an appeal of the underlying
judgment. Thus, postconviction relief "is not a substitute for,
or an addendum to, direct appeal." People v. Kokoraleis, 159
Ill. 2d 325, 328, 637 N.E.2d 1015, 1017 (1994). A postconviction
petition must also include supporting affidavits, records, or
other evidence, or an explanation of their absence. 725 ILCS
5/122--2 (West 2004). The absence of affidavits supporting the
defendant's claims will not necessarily quash the defendant's
opportunity to obtain postconviction relief, if the allegations
are uncontradicted and clearly supported by the record. People
v. McGinnis, 51 Ill. App. 3d 273, 366 N.E.2d 969 (1977).
Pursuant to section 122--1(c) of the Post-Conviction Hearing
Act, if a petition for certiorari is not filed, a postconviction
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proceeding cannot begin more than six months from the date for
filing a certiorari petition, unless the petitioner alleges
sufficient facts that establish the delay was not due to his
"culpable negligence." 725 ILCS 5/122--1(c) (West 2004). The
time limits in section 122--1(c) act as a statute of limitations.
People v. Paleologos, 345 Ill. App. 3d 700, 803 N.E.2d 108
(2003). The Act's time limitation is not a jurisdictional bar,
but is an affirmative defense that can be raised, waived, or
forfeited by the State. Paleologos, 345 Ill. App. 3d 700, 803
N.E.2d 108. In order to determine the timeliness of a
postconviction petition, the effective time restrictions as of
the date of filing control. People v. Bates, 124 Ill. 2d 81, 529
N.E.2d 227 (1988).
In this case, the defendant concedes that his petition for
postconviction relief is untimely but alleges the delay is not
due to his culpable negligence.
An untimely petition for postconviction relief is not
subject to dismissal if the delay in filing was not due to the
defendant's culpable negligence. 725 ILCS 5/122--1(c) (West
2004); Paleologos, 345 Ill. App. 3d 700, 803 N.E.2d 108. The
burden rests with the defendant to prove a lack of culpable
negligence. People v. Ramirez, 361 Ill. App. 3d 450, 837 N.E.2d
111 (2005). The Illinois Supreme Court has recognized that
culpable negligence contemplates more than ordinary negligence.
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People v. Rissley, 206 Ill. 2d 403, 795 N.E.2d 174 (2003).
Rather, culpable negligence, while not intentional, involves a
disregard of the consequences likely to flow from one's actions.
People v. Lander, 215 Ill. 2d 577, 831 N.E.2d 596 (2005).
Although the length of the delay, alone, does not establish
culpable negligence, "it stands to reason that a defendant who
waits nearly five years beyond the statutory deadline to file a
petition has more explaining to do than one who is late by less
than a week." People v. Hampton, 349 Ill. App. 3d 824, 828, 807
N.E.2d 1262, 1265 (2004). In general, all citizens are charged
with knowledge of the law. People v. Boclair, 202 Ill. 2d 89,
789 N.E.2d 734 (2002). Further, the sole obligation for filing a
timely postconviction petition remains with the defendant.
Lander, 215 Ill. 2d 577, 831 N.E.2d 596. Neither a lack of
knowledge of the law nor an unfamiliarity with the Act's
requirements will excuse the delay in filing a suit. Boclair,
202 Ill. 2d 89, 789 N.E.2d 734; Hampton, 349 Ill. App. 3d 824,
807 N.E.2d 1262.
The trial court's findings of fact regarding a defendant's
culpable negligence will be reversed only if they were manifestly
erroneous, but the ultimate conclusion of whether the established
facts demonstrate culpable negligence is subject to a de novo
review. Ramirez, 361 Ill. App. 3d 450, 837 N.E.2d 111. In this
case, the trial court did not make specific factual findings
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regarding the issue of the defendant's culpable negligence, so
our review of the second-stage dismissal of the defendant's
postconviction petition is de novo. Ramirez, 361 Ill. App. 3d
450, 837 N.E.2d 111. An appellate court can affirm on any basis
supported by the record. Aboufariss v. City of De Kalb, 305 Ill.
App. 3d 1054, 713 N.E.2d 804 (1999).
In this case, in the defendant's fifth amended
postconviction petition, he alleges that: (1) he retained
attorney Hamm on January 11, 2000, to represent him for purposes
of postconviction review; (2) Hamm assured the defendant his
postconviction petition would be timely filed; (3) Hamm, on March
25, 2002, notified the defendant that he did not have a
constitutional violation to present for postconviction review;
(4) Hamm did not return the records to the defendant until April
2004; and (5) the defendant "worked diligently" to file his
petition for postconviction relief by May 2, 2005. The
postconviction petition includes affidavits from: (1) the
defendant, averring his allegations were truthful; and (2) the
defendant's brother and father, both averring that they believed
that trial counsel provided ineffective assistance.
First, it is well settled that not only is the defendant
charged with presumptive knowledge of the law, but also that the
timely filing of a petition for postconviction relief is the sole
responsibility of the defendant. See Lander, 215 Ill. 2d 577,
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831 N.E.2d 596. Further, the assistance of counsel for purposes
of postconviction review is not a constitutional right. People
v. Pinkonsly, 207 Ill. 2d 555, 802 N.E.2d 236 (2003). Here, the
defendant has not established that the mere fact he may have
hired counsel to assist in postconviction proceedings relieves
him of culpable negligence for the late filing of the petition.
Rather, it is the sole responsibility of the defendant to ensure
the petition is timely filed.
Further, the defendant has failed to attach an affidavit
that supports his contentions that Hamm: (1) was retained in
January 2000; (2) promised to timely file the defendant's
petition for postconviction relief; and (3) retained the record
for two years after notifying the defendant he would not file a
postconviction petition on his behalf. We recognize that the
absence of an affidavit supporting the defendant's contentions
does not require the automatic dismissal of the defendant's
petition. In this case, however, the defendant's allegations are
not clearly supported by the record. The record contains only
two letters from Hamm to the defendant, one dated August 3, 2000,
requesting a telephone conversation to speak about the
postconviction proceedings, and the other, dated March 25, 2002,
notifying the defendant that his case did not present any issues
by which relief could be granted. Thus, these claims are not
supported by the defendant's own affidavit, those of his father
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and brother, or by the record. Therefore, they do not assist the
defendant in establishing he was not culpably negligent in the
untimely filing of his postconviction petition.
Assuming, arguendo, that the defendant did not receive the
record until April 2004, another 13 months elapsed before the
defendant filed his initial petition for postconviction relief.
During this time, the defendant did not notify the court about
his situation, nor did he file a motion for leave to file an
untimely petition. These facts further rebut the defendant's
contention that he lacks culpable negligence for the late filing
of the petition.
Overall, neither the defendant's petition nor the record
supports the defendant's assertion that he was not culpably
negligent for the untimely filing of his petition for
postconviction relief. An appellate court is not constrained by
the reasoning of the trial court and may affirm the dismissal of
a postconviction petition on any basis supported by the record.
People v. DeBerry, 372 Ill. App. 3d 1056, 868 N.E.2d 382 (2007).
Therefore, although the trial court considered and dismissed the
petition on the merits, we find that the petition was untimely
and the defendant cannot establish he was not culpably negligent
for the untimely filing. Thus, the trial court did not err by
dismissing the defendant's postconviction petition.
In his fifth amended petition for postconviction relief, the
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defendant also asserts that he is actually innocent. In support
of this contention, the defendant notes in his brief that he
filed a motion under section 116--3 of the Code of Criminal
Procedure of 1963 for deoxyribonucleic acid testing, which has
not been heard by the trial court. 725 ILCS 5/116--3 (West
2004). The defendant further admits that he "has not provided
evidence of his actual innocence." Thus, this vague assertion of
actual innocence does not excuse the untimeliness of the
defendant's postconviction petition, and it was properly
dismissed by the trial court.
Because we affirm dismissal of the defendant's petition
based on untimeliness, we need not consider the remainder of the
claims alleged in his petition for postconviction relief.
CONCLUSION
The judgment of the circuit court of Stark County is
affirmed.
Affirmed.
CARTER and LYTTON, JJ., concur.
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