{ "id": 4290278, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSIE WOFFORD, Defendant-Appellant", "name_abbreviation": "People v. Wofford", "decision_date": "2009-09-03", "docket_number": "No. 5-08-0116", "first_page": "433", "last_page": "438", "citations": [ { "type": "official", "cite": "394 Ill. App. 3d 433" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "338 Ill. App. 3d 122", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 25338 ], "year": 2003, "pin_cites": [ { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/338/0122-01" ] }, { "cite": "292 Ill. App. 3d 70", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725066 ], "year": 1997, "pin_cites": [ { "page": "74", "parenthetical": "\"[E]ven though defendants neither raised the statute of limitations in their answer nor amended their answer to raise it, defendants were permitted to raise the statute of limitations in a section 2 - 619 motion to dismiss\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0070-01" ] }, { "cite": "190 Ill. App. 3d 396", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2518734 ], "year": 1989, "pin_cites": [ { "page": "407", "parenthetical": "\"The failure to plead an affirmative defense, such as a statute of limitations, does not constitute waiver. Rather, a trial court may, in its sound discretion, allow a defendant to file an amended answer raising affirmative matter anytime prior to the entry of a final judgment\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/190/0396-01" ] }, { "cite": "229 Ill. 2d 34", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3614852 ], "year": 2007, "pin_cites": [ { "page": "43", "parenthetical": "\"The State may move to dismiss after petitioner's counsel has made any necessary amendments\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/229/0034-01" ] }, { "cite": "189 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224794 ], "weight": 5, "year": 1999, "pin_cites": [ { "page": "10-11" }, { "page": "12" }, { "page": "11-12" }, { "page": "12", "parenthetical": "\"[I]f the State wishes to challenge the timeliness of a defendant's petition, it should raise that argument first in the trial court, where any amendments can be made and factual disputes resolved\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0001-01" ] }, { "cite": "202 Ill. 2d 89", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442050 ], "weight": 8, "year": 2002, "pin_cites": [ { "page": "97" }, { "page": "99" }, { "page": "99-100" }, { "page": "100" }, { "page": "99" }, { "page": "99" }, { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0089-01" ] }, { "cite": "38 Ill. 2d 223", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2861276 ], "year": 1967, "pin_cites": [ { "page": "224-25" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0223-01" ] }, { "cite": "131 Ill. 2d 387", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569807 ], "year": 1989, "pin_cites": [ { "page": "395", "parenthetical": "\"[A]n issue not raised in the trial court is considered waived\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0387-01" ] } ], "analysis": { "cardinality": 557, "char_count": 13375, "ocr_confidence": 0.743, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14422771366207066 }, "sha256": "e5a0c1cbaf0ca8a9cf2be766c81e75ab77ab811a4a9e22eee5eabfdfba7c7564", "simhash": "1:fb2ac63e626811f1", "word_count": 2208 }, "last_updated": "2023-07-14T19:46:22.265343+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSIE WOFFORD, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE WEXSTTEN\ndelivered the opinion of the court:\nThe defendant, Jessie Wofford, appeals the St. Clair County circuit court\u2019s dismissal of his second amended postconviction petition during the second stage of his postconviction proceeding. The defendant contends that the State forfeited its statute-of-limitation affirmative defense under section 122 \u2014 1 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 (West 1998)) by not raising it in its original motion to dismiss. Because we find that the State raised the limitation defense at the appropriate time \u2014 during the second stage of the post-conviction proceeding \u2014 and did not waive or forfeit the defense, we affirm the dismissal.\nBACKGROUND\nOn October 24, 1994, the defendant entered a guilty plea to charges of first-degree murder and aggravated battery with a firearm and was sentenced to a 40-year term of imprisonment. The defendant filed a motion to reduce his sentence, which was denied by the circuit court more than three years later. On direct appeal, the defendant\u2019s conviction was affirmed by this court, but we remanded the cause to the circuit court with directions to credit the defendant for time served. People v. Wofford, No. 5 \u2014 98\u20140212 (1998) (unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23)).\nOn March 11, 1999, more than four years and three months after the defendant\u2019s conviction, the defendant filed a pro se petition for postconviction relief. The trial court dismissed the petition at the initial stage of the postconviction proceeding, finding it patently without merit. On appeal, however, the matter was remanded for stage-two proceedings because the circuit court had failed to act on the petition within 90 days as required by section 122 \u2014 2.1(a) of the Act (725 ILCS 5/122 \u2014 2.1(a) (West 1998)). People v. Wofford, No. 5 \u2014 99\u20140457 (2000) (unpublished order under Supreme Court Rule 23).\nOn remand, the State filed a motion to dismiss but did not raise the issue of the timeliness of the defendant\u2019s petition. The circuit court appointed counsel for the defendant, and an amended postcon-viction petition was filed. The State then filed a motion to dismiss the amended petition, which the trial court granted because no supporting documentation or affidavits were attached to the amended petition as required by section 122 \u2014 2 of the Act (725 ILCS 5/122 \u2014 2 (West 1998)).\nOn appeal, the defendant alleged the ineffective assistance of post-conviction counsel for failing to attach supporting documents to the amended petition or provide an excuse for their absence, in contravention to section 122 \u2014 2 of the Act. Finding merit in the defendant\u2019s contention, this court remanded the cause with directions to allow the defendant to replead his petition with the assistance of counsel. People v. Wofford, No. 5 \u2014 03\u20140295 (2005) (unpublished order under Supreme Court Rule 23).\nThe defendant then filed a pro se \u201csupplement [sic] petition for post[ ]conviction relief.\u201d The same day, the defendant was appointed new counsel, and an amended petition for postconviction relief was filed. The State filed a motion to dismiss the defendant\u2019s amended petition, alleging, for the first time, that the defendant\u2019s original post-conviction petition was untimely and that the defendant failed to allege facts showing that the delay was not due to his culpable negligence pursuant to section 122 \u2014 1(c) of the Act (725 ILCS 5/122 \u2014 1(c) (West 1998)).\nIn response, the defendant filed a second amended petition, contending \u201c[t]hat if there was a delay in the filing thereof, it was not due to the culpable negligence of the [defendant]\u201d because the \u201cmotion to reduce the sentence was pending for three (3) years and three (3) months\u201d and because the defendant \u201cwas misinformed by his [direct appeal counsel] to \u2018save the post[ ]conviction issues\u2019 until after the appeal was decided.\u201d In support, the defendant attached a letter addressed to him from his direct appeal counsel, stating, in pertinent part, \u201cYou probably will want to write to [your doctor] in order to determine whether his affidavit would be of help to you in a post[ ]conviction petition.\u201d\nApproximately two weeks later, the State filed a motion to dismiss the defendant\u2019s second amended petition, still contesting the timeliness of the defendant\u2019s original petition. After hearing arguments, the circuit court issued an order granting the State\u2019s motion to dismiss, finding that the defendant\u2019s petition did not comply with the time requirements of section 122 \u2014 1 of the Act. The defendant appeals that dismissal.\nANALYSIS\nWe first note that the defendant did not argue in his second amended petition or at the hearing on the State\u2019s motion to dismiss that the State forfeited its statute-of-limitation defense by not raising it in its original motion to dismiss. Thus, the defendant has waived this issue on appeal. People v. Adams, 131 Ill. 2d 387, 395 (1989) (\u201c[A]n issue not raised in the trial court is considered waived\u201d). Nevertheless, in the interest of reaching a just result and setting a sound and uniform body of precedent, we have exercised our discretion to review the defendant\u2019s point on the merits. Hux v. Raben, 38 Ill. 2d 223, 224-25 (1967).\nSection 122 \u2014 1(c) of the Act provides, in relevant part, \u201cNo proceedings under this Article shall be commenced more than *** 3 years from the date of conviction ***, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.\u201d 725 ILCS 5/122 \u2014 1(c) (West 1998). Here, the defendant\u2019s original petition for postconviction relief was filed more than three years after his conviction, and the defendant concedes that his petition was untimely. Nevertheless, the defendant contends that \u201cthe trial court should not have granted the State\u2019s motion to dismiss the petition for not being \u2018timely\u2019 in the final motions to dismiss\u201d because \u201c[tjhe State by 2007 had forfeited its argument that [the defendant\u2019s] 1999 postconviction petition was untimely.\u201d The defendant relies on People v. Boclair, 202 Ill. 2d 89 (2002), to support the proposition that the failure to raise the affirmative defense of limitations in its initial motion to dismiss resulted in the State waiving that defense. Our review is de novo. Boclair, 202 Ill. 2d at 97.\n\u201cThe Act provides a three-stage process for the adjudication of post[ ]conviction petitions.\u201d Boclair, 202 Ill. 2d at 99. At the first stage, after a petition for postconviction relief has been filed, the circuit court has 90 days to review the petition to determine if it is frivolous or patently without merit. 725 ILCS 5/122 \u2014 2.1(a) (West 1998). The court cannot dismiss the petition as untimely at this stage of the proceeding. Boclair, 202 Ill. 2d at 99-100. If the petition is not dismissed within 90 days, then the petition moves on to stage two of the postconviction proceeding. 725 ILCS 5/122 \u2014 2.1(b) (West 1998).\nAt stage two, the State is directed to answer or move to dismiss the petition \u201c[w]ithin 30 days *** or within such further time as the court may set.\u201d 725 ILCS 5/122 \u2014 5 (West 1998). During this stage, the court may, in its discretion, \u201cmake such order as to amendment of the petition or any other pleading, *** or filing further pleadings, or extending the time of filing any pleading other than the original petition, as shall be appropriate, just[,] and reasonable and as is generally provided in civil cases.\u201d 725 ILCS 5/122 \u2014 5 (West 1998). \u201cIf the State does not file a motion to dismiss or if the circuit court denies the State\u2019s motion, the circuit court will proceed to the third stage and conduct an evidentiary hearing on the merits of the petition.\u201d Boclair, 202 Ill. 2d at 100.\nIn People v. Wright, 189 Ill. 2d 1 (1999), the Illinois Supreme Court held that the time requirement under section 122 \u2014 1 was not a jurisdictional prerequisite but, rather, was a statute of limitation that could be waived or forfeited through procedural default. Wright, 189 Ill. 2d at 10-11. Thus, the court concluded, \u201c[I]f the State wishes to challenge the timeliness of a defendant\u2019s petition, it should raise that argument first in the trial court, where any amendments can be made and factual disputes resolved.\u201d Wright, 189 Ill. 2d at 12. The court explained:\n\u201cIn reaching this conclusion, we caution that we are not limiting the trial court\u2019s ability, during the court\u2019s initial review of noncapi-tal petitions (see 725 ILCS 5/122 \u2014 2.1(a)(2) (West 1998)), 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 Wright, 189 Ill. 2d at 11-12.\nIn Boclair, the supreme court clarified its holding in Wright and held, \u201c[T]he Act does not authorize the dismissal of a post[ ]conviction petition during the initial stage based on untimeliness.\u201d Boclair, 202 Ill. 2d at 99. The court stated, \u201cTo the extent that *** Wright may be read as holding the contrary to be true, we now expressly overturn that portion of the Wright decision.\u201d Boclair, 202 Ill. 2d at 99. The court concluded, \u201c[T]he matter of untimeliness should be left for the State to assert during the second stage of the post[ ]conviction proceedings.\u201d Boclair, 202 Ill. 2d at 102.\nHere, the defendant\u2019s reliance on Boclair is misplaced. In fact, Bo-clair supports the State\u2019s position that it properly raised the statute-of-limitation defense during the second stage of the postconviction proceeding. In this case, the defendant amended his petition on three separate occasions. After each amendment, the State moved to dismiss the petition. Under section 122 \u2014 5 of the Act, the circuit court had the discretion to allow the defendant to amend his petition and the State to amend its motion to dismiss. 725 ILCS 5/122 \u2014 5 (West 1998); People v. Perkins, 229 Ill. 2d 34, 43 (2007) (\u201cThe State may move to dismiss after petitioner\u2019s counsel has made any necessary amendments\u201d).\nThis is supported by the fact that the purpose behind requiring the State to challenge the timeliness of the defendant\u2019s petition in the circuit court was met in this case. See Wright, 189 Ill. 2d at 12 (\u201c[I]f the State wishes to challenge the timeliness of a defendant\u2019s petition, it should raise that argument first in the trial court, where any amendments can be made and factual disputes resolved\u201d). Here, after the State raised its timeliness defense, the defendant filed a second amended petition, whereby he alleged facts attempting to show that the delay in filing his original petition was not due to his culpable negligence. The circuit court found that the defendant failed to meet this burden, and on appeal, the defendant does not contest this finding. Thus, this issue has been waived pursuant to Supreme Court Rule 341(h)(7) (210 Ill. 2d R. 341(h)(7)).\nWe also note that our conclusion is supported by section 122 \u2014 5\u2019s directive granting the circuit court discretion in determining whether to allow the amendment of any pleading \u201cas is generally provided in civil cases.\u201d 725 ILCS 5/122 \u2014 5 (West 1998); see Behr v. Club Med, Inc., 190 Ill. App. 3d 396, 407 (1989) (\u201cThe failure to plead an affirmative defense, such as a statute of limitations, does not constitute waiver. Rather, a trial court may, in its sound discretion, allow a defendant to file an amended answer raising affirmative matter anytime prior to the entry of a final judgment\u201d); Dever v. Simmons, 292 Ill. App. 3d 70, 74 (1997) (\u201c[E]ven though defendants neither raised the statute of limitations in their answer nor amended their answer to raise it, defendants were permitted to raise the statute of limitations in a section 2 \u2014 619 motion to dismiss\u201d); see also People v. Cortez, 338 Ill. App. 3d 122, 128 (2003) (\u201c[W]here the State does not file its motion to dismiss a postconviction petition within the statutory filing deadline set forth in section 122 \u2014 5, the petitioner is not entitled to an evidentiary hearing unless he can show that he suffered prejudice as a result of the State\u2019s failure to file a timely motion to dismiss\u201d). Here, the State properly raised the timeliness affirmative defense in its motion to dismiss. Had its motion been denied, the State would have been given an opportunity to raise this defense in its answer. See 725 ILCS 5/122 \u2014 5 (West 1998) (\u201cIn the event that a motion to dismiss is filed and denied, the State must file an answer within 20 days after such denial\u201d). The circuit court correctly dismissed the petition.\nCONCLUSION\nThe circuit court properly deemed the defendant\u2019s petition as untimely, and the judgment dismissing the defendant\u2019s petition for postconviction relief is affirmed.\nAffirmed.\nWELCH and STEWART, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE WEXSTTEN" } ], "attorneys": [ "Michael J. Pelletier, Gary R. Peterson, and Judith L. Libby, all of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Robert Haida, State\u2019s Attorney, of Belleville (Patrick Delfino, Stephen E. Norris, and Jennifer Camden, 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. JESSIE WOFFORD, Defendant-Appellant.\nFifth District\nNo. 5\u201408\u20140116\nOpinion filed September 3, 2009.\nMichael J. Pelletier, Gary R. Peterson, and Judith L. Libby, all of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nRobert Haida, State\u2019s Attorney, of Belleville (Patrick Delfino, Stephen E. Norris, and Jennifer Camden, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0433-01", "first_page_order": 451, "last_page_order": 456 }