{ "id": 4287042, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ANTHONY WHEELER, Defendant-Appellee", "name_abbreviation": "People v. Wheeler", "decision_date": "2009-06-08", "docket_number": "No. 1\u201407\u20143421", "first_page": "303", "last_page": "312", "citations": [ { "type": "official", "cite": "392 Ill. App. 3d 303" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "379 Ill. App. 3d 611", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4275432 ], "weight": 7, "year": 2008, "pin_cites": [ { "page": "612" }, { "page": "614" }, { "page": "614" }, { "page": "614, 616" }, { "page": "614" }, { "page": "621" }, { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/379/0611-01" ] }, { "cite": "386 Ill. App. 3d 890", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4282112 ], "year": 2008, "pin_cites": [ { "page": "894" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/386/0890-01" ] }, { "cite": "376 Ill. App. 3d 705", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4273867 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "709" }, { "page": "710", "parenthetical": "Johnson, J, dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/376/0705-01" ] }, { "cite": "385 Ill. App. 3d 585", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4280308 ], "year": 2008, "pin_cites": [ { "page": "608", "parenthetical": "\"a party waives a point by failing to argue it on appeal\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/385/0585-01" ] }, { "cite": "377 Ill. App. 3d 318", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4274439 ], "year": 2007, "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/377/0318-01" ] }, { "cite": "369 Ill. App. 3d 128", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4267194 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "137" }, { "page": "137", "parenthetical": "waiver rule not applied where party had no prior notice of issue" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/369/0128-01" ] }, { "cite": "225 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5704197 ], "year": 2007, "pin_cites": [ { "page": "564" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/225/0551-01" ] }, { "cite": "183 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209962 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "380-81" }, { "page": "380-81" }, { "page": "380-81" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0366-01" ] }, { "cite": "174 Ill. 2d 410", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223616 ], "year": 1996, "pin_cites": [ { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0410-01" ] }, { "cite": "202 Ill. 2d 89", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442050 ], "weight": 8, "year": 2002, "pin_cites": [ { "page": "99-100" }, { "page": "101" }, { "page": "101" }, { "page": "101-02" }, { "page": "102" }, { "page": "102" }, { "page": "102" }, { "page": "100", "parenthetical": "\"[w]e will not depart from the plain language of the [Post-Conviction Hearing Act] by reading into it exceptions, limitations or conditions\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0089-01" ] }, { "cite": "229 Ill. 2d 34", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3614852 ], "weight": 11, "year": 2007, "pin_cites": [ { "page": "42" }, { "page": "42" }, { "page": "42" }, { "page": "49" }, { "page": "43" }, { "page": "48" }, { "page": "43" }, { "page": "48" }, { "page": "48" }, { "page": "43" }, { "page": "45-46" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/229/0034-01" ] }, { "cite": "217 Ill. 2d 177", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3874667 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "183" }, { "page": "183" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/217/0177-01" ] }, { "cite": "223 Ill. 2d 458", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3604764 ], "weight": 10, "year": 2006, "pin_cites": [ { "page": "473" }, { "page": "471" }, { "page": "471" }, { "page": "471-72" }, { "page": "472" }, { "page": "472" }, { "page": "472" }, { "page": "472", "parenthetical": "discussing 725 ILCS 5/122 - 5 (West 2006)" }, { "page": "472" }, { "page": "472-73" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/223/0458-01" ] }, { "cite": "229 Ill. 2d 632", "category": "reporters:state", "reporter": "Ill. 2d", "weight": 3, "year": 2008, "opinion_index": 0 } ], "analysis": { "cardinality": 832, "char_count": 22539, "ocr_confidence": 0.75, "pagerank": { "raw": 8.103716715451727e-08, "percentile": 0.4677326747621193 }, "sha256": "bc4027ea1f7f29faaaa8c3025599d24af95ff38130469d3e509146e50dbba174", "simhash": "1:1babd43e5748d4f5", "word_count": 3757 }, "last_updated": "2023-07-14T19:31:50.333780+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ANTHONY WHEELER, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE ROBERT E. GORDON\ndelivered the opinion of the court:\nThe primary issue on this appeal is whether the trial court erred when it granted a postconviction petition, without first holding an evidentiary hearing. During the pendency of this appeal, the Illinois Supreme Court remanded a similar case for an evidentiary hearing. People v. Bumpers, 229 Ill. 2d 632 (2008). Accordingly, we vacate the trial court\u2019s order and remand for an evidentiary hearing.\nBACKGROUND\nOn April 3, 2003, defendant Anthony Wheeler pled guilty, pursuant to a plea agreement, to one count of armed robbery, three counts of aggravated robbery, and three counts of attempted aggravated robbery. The prosecutor stated that for the attempted aggravated robbery offenses, \u201cdefendant will be sentenced concurrently to seven years.\u201d With respect to the remaining charges, the trial court informed defendant that the \u201cpossible penalty is not less than six years, nor more than 30 years.\u201d On April 3, 2003, defendant was sentenced to 7 years in prison for each of the attempted aggravated robbery counts and to 30 years for the armed robbery and aggravated robbery counts, with all sentences to run concurrently. Defendant did not file a direct appeal.\nIn August 2006, defendant filed pro se a \u201cMotion for Relief from Judgement,\u201d which the trial court subsequently treated as a postcon-viction petition. Defendant requested a modification of his sentence, because the trial court had failed to admonish him, prior to the entry of his guilty plea, that he was also required to serve a three-year term of supervised release. There is no dispute that the trial court did, in fact, fail to admonish defendant concerning the three-year term of supervised release.\nOn September 13, 2006, defendant also filed a pro se \u201cPetition for Post Conviction Relief\u2019 and a \u201cPetition for Leave to File Late Petition for Post Conviction Relief.\u201d In support of these petitions, defendant submitted an affidavit stating that the delay in filing his postconviction petition was due to (1) his \u201ctransfer from (5) different prisons over the past (3) year[s],\u201d which severely limited \u201chis access to the prison law library, law books and legal advise [sic]\u201d and to \u201chis legal box containing his record of the proceedings\u201d and (2) his confinement for a total of eight months \u201cin an isolated cell as a form of punitive punishment for the allege [sic] violations of prison rules.\u201d 725 ILCS 5/122 \u2014 2 (West 2006) (defendant must attach affidavits or other evidence, or explain why they are not attached).\nThe trial court appointed a public defender to represent defendant. On September 27, 2007, defendant\u2019s appointed counsel filed a \u201cSupplemental Petition for Post-Conviction Relief\u201d asking that defendant\u2019s commitment order be amended \u201cto reflect 27 years in prison, plus 3 years of mandatory supervised release,\u201d so as to enforce the benefit of defendant\u2019s plea bargain.\nOn October 11, 2007, the State moved to dismiss defendant\u2019s post-conviction petition on timeliness grounds. The State argued, first, that defendant\u2019s petition had been filed four months outside of the three-year statute of limitations for postconviction petitions. The Post-Conviction Hearing Act requires that all claims be filed no more than three years after the date of conviction, if a petitioner does not file a direct appeal. 725 ILCS 5/122 \u2014 1(c) (West 2006). Second, the State argued that the delay in filing was not excusable. A delay in filing may be excused if a petitioner alleges facts showing that the delay was not due to his or her culpable negligence. 725 ILCS 5/122 \u2014 1(c) (West 2006). In its motion, the State acknowledged the validity of defendant\u2019s underlying claim, stating: \u201cPetitioner is correct in alleging that he was not admonished that he must serve a term of mandatory supervised release as part of his 30-year sentence.\u201d\nOn November 7, 2007, defense counsel filed a reply to the State\u2019s motion. The reply refers to \u201ca second affidavit executed by [defendant] in November 2007\u201d which \u201csheds additional light upon [defendant\u2019s] individual circumstances\u201d and which is attached to the reply. In this second affidavit, defendant provided two additional reasons to excuse his delay in filing: (1) \u201cthat the facility was on a general lockdown for significant periods and that while on general lockdown, inmates have no access to the library or to notaries\u201d; and (2) that the clerk of the court did not respond to defendant\u2019s request for a transcript of his guilty plea. In this second affidavit, defendant also elaborated on why the multiple prison transfers hindered his ability to file a petition. Defendant explained \u201cthat these transfers separated me from my legal box which contains copies of relevant documents which I did have including my statement of facts and my mittimus.\u201d\nAt a court proceeding held on November 7, 2007, defendant indicated that, after consultation with counsel, he wanted his \u201cMotion for Relief from Judgement\u201d treated as a petition for postconviction relief. The trial court stated that the motion would be so treated.\nAlso at the proceeding on November 7, 2007, defense counsel explained that defendant\u2019s second affidavit had not been sworn because defendant \u201cdidn\u2019t have access to a notary before today\u2019s court date.\u201d The trial court then placed defendant under oath, and defendant swore to the truth of his affidavit.\nOn December 5, 2007, the trial court, without holding an evidentiary hearing, denied the State\u2019s motion to dismiss and granted defendant\u2019s petition for postconviction relief by reducing his prison sentence from 30 years to 27 years. The trial court began by stating that \u201cthe matter is here\u201d only \u201cfor arguments.\u201d Counsel proceeded to argue, without introducing any evidence or calling any witnesses. At the end of his argument, defense counsel stated that there was no need for a hearing.\nAt the proceeding on December 5, the prosecutor stated: \u201cThe State concedes the admonishment was not given to the defendant.\u201d The prosecutor asked the trial court to dismiss defendant\u2019s petition simply \u201con [the] procedural bar.\u201d After arguing why the procedural bar was excused in this case, defense counsel stated:\n\u201cAnd actually there\u2019s not really a need for a hearing. All the Court needs to issue is a new mittimus. The State is not prejudiced by the fact that he filed beyond his time limit.\u201d\nAfter listening to counsel\u2019s argument, the trial court found that \u201cthe defendant was not culpably neglect [sic] based upon the facts and circumstances available.\u201d The trial court did not identify the specific \u201cfacts and circumstances\u201d that led to its finding. Based on this finding, the trial court ruled:\n\u201cA new mittimus will issue with all the cases concurrent with one another. Sentence will be reduced based upon the fact the defendant was not admonished to 3 years mandatory supervised release. It will be reduced from 30 down to 27 years Illinois Department of Corrections. Credit 1788 days in custody. It will it [sic] be the same order on all of Mr. Wheeler\u2019s cases concurrent.\u201d\nThe State did not object to the lack of an evidentiary hearing, either after defense counsel\u2019s remarks or the trial court\u2019s ruling. The prosecutor stated only that the State intended to file an appeal.\nOn December 5, 2007, the State filed a notice of appeal, appealing the trial court\u2019s \u201cOrder granting petitioner\u2019s post-conviction petition.\u201d\nANALYSIS\nThe State appeals, arguing (1) that defendant was culpably negligent in filing his postconviction petition four months late; and (2) that the trial court erred by granting postconviction relief without first holding an evidentiary hearing. Since we decide the appeal on the second ground, we need not reach the first ground.\nThe question of whether the trial court was statutorily required to hold an evidentiary hearing is purely a question of law, which we review de novo. People v. Pendleton, 223 Ill. 2d 458, 473 (2006).\nThe Post-Conviction Hearing Act (725 ILCS 5/122 \u2014 1 et seq. (West 2006)) provides a means by which a defendant may challenge his or her conviction or sentence for violations of federal or state constitutional rights. Pendleton, 223 Ill. 2d at 471, citing People v. Whitfield, 217 Ill. 2d 177, 183 (2005). To be entitled to postconviction relief, a defendant must show that he or she has suffered a substantial deprivation of his federal or state constitutional rights in the proceedings that produced the conviction or sentence being challenged. 725 ILCS 5/122 \u2014 1(a)(1) (West 2006); Pendleton, 223 Ill. 2d at 471, citing Whitfield, 217 Ill. 2d at 183.\nThe Act provides for three stages in noncapital cases. Pendleton, 223 Ill. 2d at 471-72. At the first stage, the trial court has 90 days to review a petition and may summarily dismiss it, if the trial court finds that the petition is frivolous and patently without merit. 725 ILCS 5/122 \u2014 2.1(a)(2) (West 2006); Pendleton, 223 Ill. 2d at 472. If the trial court does not dismiss the petition within that 90-day period, the trial court must docket it for further consideration. 725 ILCS 5/122 \u2014 2.1(b) (West 2006); Pendleton, 223 Ill. 2d at 472.\nThe Illinois Supreme Court has held that, at this first stage, the trial court evaluates only the merits of the petition\u2019s substantive claim, and not its compliance with procedural rules. People v. Perkins, 229 Ill. 2d 34, 42 (2007). The issue at this first stage is whether the petition presents \u201c \u2018 \u201cthe gist of a constitutional claim.\u201d \u2019 \u201d Perkins, 229 Ill. 2d at 42, quoting People v. Boclair, 202 Ill. 2d 89, 99-100 (2002), quoting People v. Gaultney, 174 Ill. 2d 410, 418 (1996). As a result, \u201c[t]he petition may not be dismissed as untimely at the first stage of the proceedings.\u201d Perkins, 229 Ill. 2d at 42.\nIn the case at bar, defendant\u2019s petition proceeded to the second stage. The Act provides that, at the second stage, counsel may be appointed for defendant, if defendant is indigent, which is what happened in this case. 725 ILCS 5/122 \u2014 4 (West 2006); Pendleton, 223 Ill. 2d at 472. After an appointment, Supreme Court Rule 651(c) requires the appointed counsel: (1) to consult with petitioner by mail or in person; (2) to examine the record of the challenged proceedings; and (3) to make any amendments \u201cthat are necessary\u201d to the petition previously filed by the pro se defendant. 134 Ill. 2d R. 651(c); Perkins, 229 Ill. 2d at 42. Our supreme court has interpreted Rule 651(c) also to require appointed counsel \u201cto amend an untimely pro se petition to allege any available facts necessary to establish that the delay was not due to the petitioner\u2019s culpable negligence.\u201d Perkins, 229 Ill. 2d at 49.\nAfter defense counsel has made any necessary amendments, the State may move to dismiss the petition. Pendleton, 223 Ill. 2d at 472 (discussing 725 ILCS 5/122 \u2014 5 (West 2006)). See also Perkins, 229 Ill. 2d at 43. If the State moves to dismiss, the trial court may hold a dismissal hearing, which is still part of the second stage. People v. Coleman, 183 Ill. 2d 366, 380-81 (1998). A trial court is foreclosed \u201cfrom engaging in any fact-finding at a dismissal hearing because all well-pleaded facts are to be taken as true at this point in the proceeding.\u201d Coleman, 183 Ill. 2d at 380-81. In the case at bar, the newly appointed counsel filed a supplemental petition, the State then moved to dismiss, and the trial court held a second-stage dismissal hearing.\nThe issue of timeliness is first considered by the trial court at the second stage. Perkins, 229 Ill. 2d at 48. The Act requires that, if a petitioner files a petition outside the limitations period, the petitioner must \u201callege[ ] facts showing that the delay was not due to his or her culpable negligence.\u201d 725 ILCS 5/122 \u2014 1(c) (West 2006); Perkins, 229 Ill. 2d at 43. However, our supreme court has held that a pro se petition does not have to contain \u201cany allegations on timeliness or an excuse for a delay in filing\u201d in order \u201cto advance past the first stage.\u201d Perkins, 229 Ill. 2d at 48. Timeliness allegations are simply \u201cirrelevant at the first stage\u201d and are considered only \u201cafter appointment of counsel.\u201d Perkins, 229 Ill. 2d at 48.\nAt the second stage, the trial court may dismiss a petition as untimely: (1) if the petition fails to contain \u201callegations of lack of culpable negligence\u201d; and (2) if the State moves to dismiss on this ground. Perkins, 229 Ill. 2d at 43.\nEven at the second stage, a failure to make allegations will not necessarily result in a dismissal, because the State may decide to waive the timeliness bar. People v. Boclair, 202 Ill. 2d 89, 101 (2002). Timeliness is not a jurisdictional prerequisite, but instead is an affirmative defense that the State may forfeit or may choose to waive by not filing a motion at this second stage. Boclair, 202 Ill. 2d at 101; Perkins, 229 Ill. 2d at 45-46. Faced with an underlying claim of merit, \u201ca dutiful prosecutor\u201d may choose to waive the timeliness bar. Boclair, 202 Ill. 2d at 101-02. Since a trial court may not usurp \u201cthe State\u2019s prerogative to proceed on the merits of the petition despite procedural flaws,\u201d a court may dismiss on timeliness grounds only if the State moves for it. Boclair, 202 Ill. 2d at 102.\nIf the trial court denies the State\u2019s motion to dismiss, or if the State chooses not to file a dismissal motion, then the State \u201cshall\u201d answer the petition. 725 ILCS 5/122 \u2014 5 (West 2006); Pendleton, 223 Ill. 2d at 472. Unless the trial court allows further pleadings (725 ILCS 5/122 \u2014 5 (West 2006)), the proceeding then advances to the third stage, which is an evidentiary hearing. 725 ILCS 5/122 \u2014 6 (West 2006); Pendleton, 223 Ill. 2d at 472-73. At the hearing, the trial court \u201cmay receive proof by affidavits, depositions, oral testimony, or other evidence,\u201d and \u201cmay order the petitioner brought before the court.\u201d 725 ILCS 5/122 \u2014 6 (West 2006). To determine whether a defendant is culpably negligent in filing a late petition, the trial court must make \u201can assessment of the defendant\u2019s credibility.\u201d Boclair, 202 Ill. 2d at 102.\nThe Act provides that \u201c[i]f the [trial] court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgement or sentence in the former proceedings and such supplementary orders as to rearraignment, retrial, custody, bail, or discharge as may be necessary and proper.\u201d 725 ILCS 5/122 \u2014 6 (West 2006). In the case at bar, the trial court found in favor of defendant and entered an order with respect to the sentence in the former proceedings. The trial court entered this disposition after the second stage and without holding an evidentiary hearing.\nA preliminary question is whether the State waived this issue by not raising it in the court below. Generally, issues not raised in the trial court are waived, for purposes of appeal. People v. Piatkowski, 225 Ill. 2d 551, 564 (2007). In the case at bar, the State did not object when defense counsel argued to the trial court that it did not need to hold an evidentiary hearing and that all the trial court needed to do was to issue a new mittimus. In addition, when the trial court proceeded to issue its ruling without an evidentiary hearing, the State did not object on that basis.\nNonetheless, we will proceed to consider this issue. First, the waiver doctrine is a limit on the parties, not on the jurisdiction of the reviewing court. Niles Township High School District 219 v. Illinois Educational Labor Relations Board, 369 Ill. App. 3d 128, 137 (2006); Luss v. Village of Forest Park, 377 Ill. App. 3d 318, 330 (2007). Second, the defense did not provide notice in its postconviction petition or supplement that it intended to raise this claim before the trial court. Niles Township, 369 Ill. App. 3d at 137 (waiver rule not applied where party had no prior notice of issue). Third, defendant did not raise waiver as an issue in this appeal. People v. Johnson, 385 Ill. App. 3d 585, 608 (2008) (\u201ca party waives a point by failing to argue it on appeal\u201d). For all these reasons, we will proceed to consider the issue of whether the trial court was required to hold an evidentiary hearing prior to ordering postconviction relief.\nOn appeal, the State argues that the whole structure and process of the Act shows that a hearing was required. First, the Act provides that if the State\u2019s motion is denied, then the State \u201cshall\u201d file an answer. 725 ILCS 5/122 \u2014 5 (West 2006). In the case at bar, the trial court denied the State\u2019s motion and then, in effect, prevented the State from fulfilling its statutory obligation of filing an answer, with a premature grant of relief. If the drafters of the Act had contemplated a grant of relief at the second stage, then they would not have made an answer mandatory.\nSecond, the Illinois Supreme Court has held that when a trial court determines whether or not a defendant was culpably negligent, the trial court must assess the defendant\u2019s credibility. Boclair, 202 Ill. 2d at 102. Such an assessment is not intended for a second-stage dismissal hearing, where a trial court is foreclosed from fact-finding and all well-pleaded facts are taken as true. Coleman, 183 Ill. 2d at 380-81. Assessments of credibility are better suited to a third-stage evidentiary hearing, which does not occur until after the State\u2019s answer, which never occurred in this case.\nWe find these arguments persuasive. In response, defendant argues that the third-stage evidentiary hearing is limited to evidence concerning defendant\u2019s underlying constitutional claim. However, no section in the Act imposes such a limitation, and we decline to read limits into the Act that are not already there. Boclair, 202 Ill. 2d at 100 (\u201c[w]e will not depart from the plain language of the [Post-Conviction Hearing Act] by reading into it exceptions, limitations or conditions\u201d).\nIn support of its argument, the defense cites People v. Welch, 376 Ill. App. 3d 705 (2007), in which the Second District vacated a second-stage dismissal by the trial court and granted the petition, in effect granting relief without a third-stage evidentiary hearing. We do not find Welch persuasive for several reasons. First, Welch was a split decision, with two justices affirming and one justice dissenting. Second, the First District has already held that \u201c[w]e are not persuaded by Welch\u201d and that we adopt instead the reasoning of the dissenting justice. People v. Muniz, 386 Ill. App. 3d 890, 894 (2008). Third, the appellate justices in Welch had a dispute about the facts and what the evidence showed, which only highlighted the need for a third-stage evidentiary hearing. The majority found that it was \u201cundisputed\u201d that defendant did not learn about the three-year term of supervised release until \u201clater\u201d; and that there was \u201cno evidence that he could have raised the issue\u201d earlier \u201cbecause there is no indication that he had knowledge of the issue.\u201d Welch, 376 Ill. App. 3d at 709. In pointed contrast, after reading the same record, the dissent concluded that \u201cthere is no indication in the present case that the defendant could not have presented the improper-admonishment claim\u201d earlier. Welch, 376 Ill. App. 3d at 710 (Johnson, J, dissenting). This dispute supports the logic for holding an evidentiary hearing, rather than for dispensing with one. For these reasons, we do not find Welch persuasive.\nIn addition, the recent action of our own supreme court in Bumpers persuades us that holding an evidentiary hearing is the wiser course. People v. Bumpers, 229 Ill. 2d 632 (2008). The facts of Bumpers are similar to the facts in the case at bar. Like the defendant in the case at bar, the defendant in Bumpers alleged in a pro se postconviction petition that the trial court had failed to admonish him, prior to the entry of his guilty plea, concerning a three-year period of mandatory supervised release. People v. Bumpers, 379 Ill. App. 3d 611, 612 (2008). As in the case at bar, the trial court appointed counsel; the appointed counsel filed a supplemental postconviction petition; and the petition proceeded to the second stage. Bumpers, 379 Ill. App. 3d at 614. As in the case at bar, the State in Bumpers chose to move, at the second stage, for dismissal on timeliness grounds. Bumpers, 379 Ill. App. 3d at 614. In response, defense counsel in Bumpers presented affidavits from defendant and his father to excuse the delay (Bumpers, 379 Ill. App. 3d at 614, 616); similarly, in the case at bar, defense counsel offered two affidavits from defendant.\nUnlike the case at bar, the trial court in Bumpers granted the State\u2019s motion. Bumpers, 379 Ill. App. 3d at 614. However, on appeal, this court reversed and vacated defendant\u2019s sentence. Bumpers, 379 Ill. App. 3d at 621. We remanded with instructions for the trial court to take, in essence, the same action that the trial court took in the case at bar: namely, to shorten the sentence by three years and to add a term of three years\u2019 mandatory supervised release. Bumpers, 379 Ill. App. 3d at 621.\nOur supreme court vacated our Bumpers opinion, in a decision without a published opinion, and \u201cremand[ed] the cause to the circuit court for an evidentiary hearing, allowing the State opportunity to refute defendant\u2019s allegations denying culpable negligence in the untimely filing of his postconviction petition.\u201d Bumpers, 229 Ill. 2d 632.\nWe take here the same action that our supreme court took in Bumpers. We remand the case to the trial court for an evidentiary hearing to allow the State the opportunity to refute defendant\u2019s allegations denying culpable negligence in the untimely filing of his postconviction petition.\nCONCLUSION\nFor the foregoing reasons, we vacate the trial court\u2019s order granting postconviction relief and remand the case to the trial court, in order to allow for an answer to be filed and an evidentiary hearing to be held.\nVacated and remanded with instructions.\nGARCIA and HALL, JJ., concur.\nThe opinion in Muniz was authored by Justice Warren Wolfson, with Justices Robert Gordon and Rodolfo Garcia concurring.", "type": "majority", "author": "PRESIDING JUSTICE ROBERT E. GORDON" } ], "attorneys": [ "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Michele Grimaldi Stein, Tasha-Marie Kelly, and Molly E. Donnelly, Assistant State\u2019s Attorneys, of counsel), for the People.", "Edwin A. Burnette, Public Defender, of Chicago (James S. Jacobs, Assistant Public Defender, of counsel), for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ANTHONY WHEELER, Defendant-Appellee.\nFirst District (1st Division)\nNo. 1\u201407\u20143421\nOpinion filed June 8, 2009.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Michele Grimaldi Stein, Tasha-Marie Kelly, and Molly E. Donnelly, Assistant State\u2019s Attorneys, of counsel), for the People.\nEdwin A. Burnette, Public Defender, of Chicago (James S. Jacobs, Assistant Public Defender, of counsel), for appellee." }, "file_name": "0303-01", "first_page_order": 319, "last_page_order": 328 }