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    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY HARDEN, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE COOK\ndelivered the opinion of the court:\nDefendant Anthony Harden appeals the summary dismissal of his May 7, 1999, postconviction petition pursuant to section 122 \u2014 2.1(a)(2) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/122\u2014 2.1(a)(2) (West 1998)), often referred to as the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 through 122 \u2014 8 (West 1998)).\nFollowing a September 1, 1993, \u201cshakedown\u201d at Pontiac Correctional Center, Harden was convicted after a March 14, 1994, jury trial of unlawful possession of a weapon by a person in the custody of the Department of Corrections. 720 ILCS 5/24 \u2014 1.1(b) (West 1992). On April 28, 1994, Harden was sentenced to 10 years\u2019 imprisonment, to be served consecutive to his prior sentences. This court affirmed Harden\u2019s direct appeal, and the Supreme Court of Illinois denied Harden leave to appeal from our decision on October 2, 1996. People v. Harden, No. 4 \u2014 94\u20140426 (June 27, 1996) (unpublished order under Supreme Court Rule 23), appeal denied, 168 Ill. 2d 608, 671 N.E.2d 737 (1996).\nUnder the law in effect at the time of Harden\u2019s conviction, a petition for postconviction relief must have been filed within six months of denial of his petition for leave to appeal, or within three years from the date of conviction, whichever was later. The deadline must be complied with unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence. 725 ILCS 5/122 \u2014 1 (West 1992). This provision was amended (Pub. Act 88 \u2014 678, \u00a7 15, eff. July 1, 1995 (1994 Ill. Laws 2712, 2732)), changing \u201clater\u201d to \u201csooner.\u201d 725 ILCS 5/122 \u2014 1 (West 1994). The shortened limitations period applies retroactively to convictions that occurred prior to its enactment. People v. Bates, 124 Ill. 2d 81, 84, 529 N.E.2d 227, 228 (1988). Harden\u2019s petition for leave to appeal was denied on October 2, 1996; six months from this date would fall on April 2, 1997. Three years after the date of Harden\u2019s \u201cconviction,\u201d which we regard as the date the jury convicted him, March 14, 1994 (see People v. Woods, 306 Ill. App. 3d 1144, 1148, 715 N.E.2d 1218, 1220-21 (1999), appeal allowed, 186 Ill. 2d 588, 723 N.E.2d 1169 (1999)), was March 14, 1997. Harden\u2019s petition was untimely under both the previous version of the statute and the present version. Harden\u2019s petition was not filed on or before March 14, 1997, nor does it allege facts demonstrating that the delay was not due to his culpable negligence, and so his petition was not timely filed.\nHarden, however, directs our attention to People v. McCain, 312 Ill. App. 3d 529, 727 N.E.2d 383 (2000). The Fifth District there correctly noted that section 122 \u2014 2.1(a)(2) of the Code (725 ILCS 5/122 \u2014 2.1(a)(2) (West 1996)) requires a trial court, within 90 days of the filing of such a petition, to determine whether the petition is \u201cfrivolous or patently without merit.\u201d McCain, 312 Ill. App. 3d at 530, 727 N.E.2d at 384-85. The McCain court narrowly construed the role of the trial court under this section and held that a court could not dismiss a petition for untimeliness prior to the expiration of this period. McCain, 312 Ill. App. 3d at 531, 727 N.E.2d at 385. We disagree. The McCain court also correctly noted that the Supreme Court of Illinois has held that the time requirements of section 122 \u2014 1 are not jurisdictional in nature and that they can be waived, i.e., forfeited, by the prosecution. People v. Wright, 189 Ill. 2d 1, 10-11, 723 N.E.2d 230, 236 (1999). But the McCain opinion (and Harden\u2019s argument) ignores that portion of Wright which states:\n\u201c[In so holding], we caution that we are not limiting the trial court\u2019s ability, during the court\u2019s initial review of noncapital petitions [according to section 122 \u2014 2.1(a)(2)], to dismiss the petition as untimely. The import of our decision is simply that matters relating to the timeliness of a defendant\u2019s petition should first be considered in the trial court, either upon a motion by the State or pursuant to the duty imposed upon the trial court by section 122\u2014 2.1(a)(2).\u201d (Emphasis added.) Wright, 189 Ill. 2d at 11-12, 723 N.E.2d at 237.\nThis passage makes it abundantly clear that the trial court may dismiss a postconviction petition as untimely during its initial review, at least where, as here, the defendant has not alleged that the untimeliness is not due to his culpable negligence. Furthermore, no motion by the State is necessary.\nThe Fifth District has now discussed McCain in subsequent decisions. See People v. Johnson, 312 Ill. App. 3d 532, 727 N.E.2d 1058 (2000); People v. Hill, 313 Ill. App. 3d 362, 729 N.E.2d 521 (2000); People v. Whitford, 314 Ill. App. 3d 335, 338-43, 732 N.E.2d 649, 653-57 (2000). In those decisions the Fifth District has (1) rejected the language we quoted from Wright, above, as dicta; and (2) complained that (a) dismissal of a petition as untimely involves a factual finding that is prohibited during the initial summary review stage, and (b) such dismissal deprives the State of its power and duty to confess an untimely \u201cactual innocence\u201d claim.\nEven assuming the language of Wright to be dicta, we deem its analysis to be sound and choose to follow it. The purpose of the initial summary review procedure of section 122 \u2014 2.1 is to quickly eliminate frivolous or meritless cases from the system. 725 ILCS 5/122 \u2014 2.1 (West 1998). A petition where the statute of limitations has long since run is frivolous and meritless. Even if timeliness is a factual issue, factual issues at some point can be decided as matters of law, e.g., when the evidence becomes so overwhelming that no contrary verdict could ever stand. See Fooden v. Board of Governors of State Colleges & Universities, 48 Ill. 2d 580, 586, 272 N.E.2d 497, 500 (1971). A judge may determine that petitioner has not alleged facts showing that his delay in filing was not due to his culpable negligence just as easily as the judge may determine that an allegation of ineffective assistance of counsel is frivolous or patently without merit. Finally, if the State wishes to confess an \u201cactual innocence\u201d claim, we are convinced that it will have many opportunities to do so. Under the logic of the Fifth District cases, no postconviction petition should ever be summarily dismissed; the State should review the evidence to determine whether it wishes to confess the petition.\nWe therefore need not address defendant\u2019s other contentions on appeal. We affirm the judgment of the circuit court of Livingston County.\nAffirmed.\nSTEIGMANN and McCULLOUGH, JJ, concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE COOK"
      }
    ],
    "attorneys": [
      "Charles M. Schiedel and Allen H. Andrews, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.",
      "Thomas J. Brown, State\u2019s Attorney, of Pontiac (Norbert J. Goetten, Robert J. Biderman, and Linda Susan McClain, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY HARDEN, Defendant-Appellant.\nFourth District\nNo. 4-99-0486\nOpinion filed September 29, 2000.\nCharles M. Schiedel and Allen H. Andrews, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nThomas J. Brown, State\u2019s Attorney, of Pontiac (Norbert J. Goetten, Robert J. Biderman, and Linda Susan McClain, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
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  "file_name": "0695-01",
  "first_page_order": 715,
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