## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Griffin , 2013 IL App (2d) 110631

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. STEPHEN E. GRI FF I

N, Def endant- Appellant.

District & N o. Second District Docke t No. 2-11-0631

Filed August 22, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The trial court’s err oneous order in 2009 g iving eff ect to the dismiss al of d efe ndant’s postconviction petition including a claim of his actua l innocenc e was reve rsed, partially in view of the lack of diligenc e on the part of both parties, and the cause was rema nded and th e State was allowed to file an answe r t o defe ndant’s th i rd amende d petition and for further appropriate and timely

proce eding s.

Dec ision Under
Review Appea l from the Circuit Court of Kane County
, No. 92-CF- 239; the Hon. Timothy Q. Sheldon and the Hon. James T. Doyle, J udg es, pre siding.

J udg ment Reverse d and re manded f or fur ther proc eeding s.Counsel on

Appea l T h o mas A. L ilien and Mark G. L evine, both of State Appel l at e Def ender ’s Off

ice, of Elg in, for appe llant.

J oseph H. McMahon, State’s Attorney
, of St. C h ar les (L awr ence M. Ba uer and Victoria E. J ozef, both o f State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE McLAREN delivere d the judgme nt of the court, with opinion. Presiding J ustice Bur

ke and J ustice Spe n ce co ncurr ed in the judgme nt and opinion.

OP INION

¶ 1 Def

endant, Stephen E. Griff

in, appea ls from the trial court’s order dismiss ing his pro se petition for postconviction relief . We reve rse a

nd rema nd for f urther pr ocee dings.

¶ 2 I . BA CKGROUND ¶ 3 Def

endant was charg ed with one count of first-degree murder (I ll. Rev. Stat. 1989, ch. 38, ¶ 9-1(a)( 1) (now 720 I L CS 5/ 9-1(a )(1) (West 2012))) in the shooting death of Michae l Br own, who was found unresponsive and bleeding from the head on the side of Kautz Road
at 9:55 p.m. on Fe bruar

y 5, 1992. At a jury trial, J udg e J ames T. Doyle presiding
, only one witness testified t hat he saw Brown ge t shot. Anthony Gibson testified t hat he, alo n g with Br own and codef

endant Perez Func hes, wer e in a car driven by defe ndant. Def endant 1 order ed Bro wn o u t o f the car , and defe ndant and Func hes walked to the back of the car , while Gibson rema ined inside. Gi bson hear d four or five gunshots and saw defe ndant standing behind Func hes as Func hes fired a gun straight down from a kneelin g p o s i t ion. Def endant testified that he had been out with Func hes, Brown, Nea l, and Gibson on the night of Fe bruar

y 5 but went to his m other’s house at around 9:30 p.m. He then borrowe d his cousin’s car and drove to the house of Paula Thomas; he arrived there at about 10 p.m. and spent the night there

. He met with Func hes and Gibson the following night and helped them dispose of the gun that Func hes told him had been used to kill Br o wn

. De fe ndant denied beingprese nt when B rown wa s killed. ¶ 4 The jury found defe ndant guilty
, and the trial court sentenc ed him to a term of 60 year s in prison. This court aff

irmed both the conviction and the sentenc e in People v. Griffin
, No. 2-95-1249 (1997) (unpublished order under Supreme Court Rule 23), and our supreme court

Anot herm an, T omm

y “Momo” Nea l, h ad p re viousl y been o rde re d ou t o f the c ar

. 1

-2-denied lea ve to appe al (

People v . Griffin , 176 I ll. 2d 582 (1998) (table )). ¶ 5 Def

endant then filed a pro se petition for p o s t co n v i ction relief pursuant to the PostConviction Hea

ring Act (Act) (725 I L CS 5/122-1 et s eq. (West 1998)). Defe ndant’s proof of service was dated August 25, 1998. Although the petitio n wa s file-stampe d October 1, 1998, the rec ord contains a trial court orde r, d at ed and file-stampe d September 16, 1998, continuing the case until October 1 for status o n the petition. In his petition, defe ndant alleg ed: (1) t h at th e S t ate suborned perjury by Gibson and Nea l in their trial testimony
, espec ially reg arding what they rec eiv ed i n return for their testimony ; (2) ineffe ctive assistance of counsel for (a) failure to offe r in evidenc e telephone rec ords to impeach Gibson and (b) failure to poll the jury and to tell the court that two jurors later told counsel that they did not believe that defe ndant was guil t y b u t t he jury room was too cold and they did not want to stay overnight becau s e o f an upcoming holiday wee kend; and (3) that the State withheld exculpatory evidenc e. Def endant attache d a Fe bruar y 17, 1992, u nsworn handwr itten “voluntary statement” from Func hes, who had not testified at defe ndant’s trial, in which Func hes stated that he would testify that d ef en d an t was not prese nt at Br own’s killing, had no knowledg e of it, and was not i n v o l v ed i n t he planning or ordering of it. Def endant also filed a motion for an evidentiar y hearing and appointment of counsel; while defe ndant dated the motion August 25, 1998, it was fil e-stampe d October 1, 1998. In a written orde r date d by

hand September

17, 1998, and file- stamped Oc tober 1, 1998, J udg e Doyle found the petition to be “w i t h o u t merit and patently frivolous” and dismiss ed the petition. ¶ 6 On Marc h 12, 1999, defe ndant filed a “first amende d” petition for postconviction relief

. Def endant made the same alleg ations he made in his orig inal petition but attache d aff idavits of his sister and mother reg arding : (1 ) conversations that they had with defe ndant’s trial
att o rney about the two jurors who did not believe that defe ndant was guilty ; and (2) a

conver sation with Gibson in which Gibson stated that defe ndant had nothing to do with the murder a nd that the State had paid both himself and Nea l f or their tria l testimony . None of the attachme nts to his 1 9 9 8 petition wer e attache d to the first amende d petition. Another
copy of the first amende d petition wa s file-stampe d April 14, 1999, but did not inc lude the aff idavit of defe ndant’s sister. ¶ 7 On J u l y 9, 1999, defe ndant filed a second amende d petition for postconviction relief
, noting his prior alleg ations and raising “new ly discovere d evidenc e” in the fo rm o f an attache d aff

idavit of Gibson in which Gibson stated that he commi t t ed perjury during defe ndant’s trial, g iving false testimony beca use he had been arr ested and was attempting to

ex o n erate himself by say ing whateve r the State wanted him to say

. Acc ording to Gibson, defe ndant “wa s n o t p re s en t” when Br own was shot. The trial court appointed the public defe nder a

nd set the matter f

or Jul y 23, 1999. ¶ 8 A series of continuance s ensued for almost two year s until, on April 19, 2001, defe ndant filed a motion for DNA t esting o f s h o es that defendant had alleg edly worn on the ni g ht of the m urder and thrown out of a car along In t er s t at e 8 8. The shoes had been recover ed and used as evidenc e at defe ndant’s trial. T h e t ri al court grante d the m otion on J une 21, 2001. On November 1, 2001, the trial court order ed the circ uit cler k to return the shoes to the State’s Attorney ’s office for testing “ as pre viously order ed by

this court.” In a handwritten

-3-note file-stampe d Dec ember 27, 2001, an assista n t S t at e’s Attorney stated that she had

rec eived defe ndant’s shoes per the November 1 order

. On Fe bruar y 28, 2002, the trial court order ed the “Ka

ne County Clerk’s office ” to “ retrie ve the shoes” and turn them over to the Aurora police depar

tment; in May 20 02, the court order ed additional trial exhibi ts, the victim’s jacke t and shi rt, to be turned over t o t h e Aurora police department for further lab testing. On October 16, 2002, the trial court continued the case and filed an additional order
, which stated:
“State Crime L ab is to test the article s provided in thi s case to deter mine whether any DNA materia l is prese nt. Until the Court rec eives confirmation of the prese nce of DNA materia l, it cannot issue a search warr ant(s) for the production of st andar ds from other parties.” ¶ 9 Another series of continuance s ensued. On April 20, 2005, 21⁄2 year s later, the trial court order ed the I llinois State Police crime lab to turn over the shoes, which had been g iven to the lab by the Aurora police depar tment, to the Kane County public defe nder’ s office
, which was grante d leave to use an independe nt laboratory for fore n s i c an al y s is of the shoes. In J une 2005, the trial court, J udg e Timothy Q. Sheldon now presidi n g, order ed both the Aurora police depar

tment and the circ uit cler

k’s office to allow defe nse counsel to view any phy sical evidenc e from the case that they had i n t h ei r possession. More continuance s ensued; on September 29, 2005, the trial court order ed the evidenc e to be taken to the State Police crime lab for an examination of the “shoe” for the prese nce of DNA materia l and a Combined DNA Index S y stem sear ch. ¶ 10 On November 8, 2005, Judg e Sheldon found that: (1) “the last and pending petition” was defe ndant’s sec ond amende d petition filed pro seon J uly 2, 1999; (2) def

ense c ounsel had
not filed an amende d petition; (3) the State Police crime lab was o rd er ed o n October 16, 2002, to conduct the DNA testing; and (4) no court order s had been enter ed since September 29, 2005. The c ase w as continued f or 10 day s for status on the DNA testing

. ¶ 11 On J anuar

y 27, 2006, the trial court order ed Adult Court Service s to obtain a bucca l swab DNA co l l ec t i o n from defe ndant that day and to turn the kit over to the Aurora police depar tment for entry into evidenc e. The test kit was to then be transporte d to the State Police crime l ab for evidentiar

y comparison. The State’s Attorney ’s office filed a supplemental

answe r to discovery on Marc h 7, attaching a copy of a two-pag e repor t from the State Police crime lab dated Fe bruar

y 21; howeve r, the answe r noted that “[i] t appea rs from rea ding the
repor t that the DNA analy sis on the items ref err ed to had not been completed as of Fe bruar y 21, 2006.” ¶ 12 More continuance s ensued, some for status on DNA testing results, others for status on the filing of an am ended postconviction petition. On November 16, 2006, the trial court order ed the circ uit cler

k to produce the entire court file for defe nse counsel the following day “so that petition and cer tificate may be completed.” Howeve r, nothing other than continuance s occur

red until J anuar

y 3, 2008, when the trial court ordere d th at defe ndant’s amende d petition for postconviction relief “must be on file by 2-15-08 or it will be barr ed.” ¶ 13 Def

endant’ s third amende d petition was filed on Fe bruar y 15, 2008, raising : (1) Gibson’s perjure d testimony and his aff idavit in which he admitted his perjury and that defe ndant was

-4-not prese nt at the murder; (2) the results of the DNA testing, which had conclude d, acc ording

to the attache d repor

t, that defe ndant “ca

n be excluded as having contributed to” the mix ture of at least three DNA profiles found; (3) the improper verdic t of gu i l t b as ed on the temperature of the jury room and the upcoming holiday wee kend; (4) ineffe ctive assistance of counsel for counsel’s failure to impeach Gibson reg arding his drug usag e, to poll the jury
, and to rais e t h e alleg ations that jurors voted guilty for improper rea sons; and (5) the aff idavits of his mother and sister reg arding these issues. Def endant soug ht a new trial or, in the alter native, a ne w sentenc ing he aring

. ¶ 14 The continuance s beg an ag ain. Def ense counsel filed her cer tificate pursuant to I llinois Supreme Court Rule 651(c) (ef f. Dec

. 1, 1984) on J une 18, 2008; on that same date, the trial
court order ed the State to file its res p o n s e t o t h e third amende d petition by the next court date, J uly 23. Howeve r, it was not until Dece mber 5, 2008, that the S tate filed a mot ion to dismiss th e third amende d petition, arguing that J udg e Doyle had enter ed a final and
appea lable order dismiss ing defe ndant’s initial postconviction petition on October 1, 1998, and that defe ndant was time-barr ed from filing a motion to rec onsider that order or appea ling it. In ad d i t ion, the State argued that defe ndant could not amend a petition that had been dismiss ed; there fore
, the trial court should consider all of defe ndant’s amende d petitions as “new ly filed” petitions that defe ndant did not rec eive leave of court to fi l e. Fur ther, any petition would have to have been filed by September 26, 1998, pursuant to section 122-1(c ) of the Ac t (725 I L CS 5/122-1(c ) (West Supp. 2003)). Although a hearing on the motion to dismiss was schedule d for Fe bru ary 1 1
, 2009, it was only afte r multipl e continuance s (including sever al for defe ndant t o file a writt en re s p o n s e) that a hearing on the m otion to dismiss was held, on October 7, 2009. After the hearing, the trial court found that J udg e Doyle ha d e nter e d a

n o rder dismiss ing defe ndant’s postconviction petition in 1998. The court stated that it would “pre sume” that notice of the dismiss al “wa s not g iven in ’98.” Howeve r, the cour t stated that it would “g ive ef fec t to that order ” and tha t defe ndant “is g iven notice in court of the order from 1998.” Acc ording to the court, “De fenda nt may app ea l t h e ’98 order w/in 30 day s of today ’s date.” ¶ 15 Whil e the court’s order contained a written date of October 8, 2009, it was file-stampe d October 7. On November 9, 2009, defe ndant filed a motion to rec onsider the dismiss al, which defe ndant later amende d on J une 24, 2011. The trial co urt denied the motion to

rec onsider on Jul y

5, 2011, and def

endant f iled his notice of appe al that day

.

¶ 16 I I . ANALYSI S ¶ 17 Def

endant first contends that the trial court in 2009 did not have authority to “g ive ef fec t”
to the 1998 summary dismiss al. The trial court had disreg arde d that dismiss al for a deca de, and defe ndant had not been able to timely appea l it beca use he had not rec eived notice of it. Def endant se eks re mandment of the c ause f or a he aringon his third amended pe tition. ¶ 18 S ec t i o n 1 2 2 -2

. 1 (a )( 2 ) o f t h e Ac t re quires that, when a trial court dismiss es an incar cer ated petitioner’s petition as frivolous or patently without merit, the court shall do so in a written order
, specify ing the court’s findings of fac t and conclusions of l aw, and shall

serve the order on the p et i tioner “by cer tified mail within 10 day s of its entry .” 725 I L CS

-5-5/122-2.1(a) (2) (West 1998). In addition, Rule 651(b) provides, “U p o n the entry of a 2 judgme nt adver se to a petitioner in a post-conviction proce eding
, the cler k of the trial court shall at once mail or deliver t o th e p et i t i o n er a notice” with a copy of the court’s order attache d and informingthe petitioner of his right to appeal. ¶ 19 Def

endant asser

ts, corr ectly
, that the rec ord does not indicate that he was notified of the 1998 dis m i s s al of his petition. The State agree s that “ther e is nothing in the rec ord to establish the defe ndant was sent the order by cer tified mail within 10 day s of its entry .” Fur ther, in its 2009 order
, the trial court presumed that notice was not g iven i n 1 9 9 8

. The parties disagree , howeve r, on the eff ect of this lack of notice on defe n dant’s subsequent “ame nded” pe titions

. ¶ 20 Def

endant arg

ues that his initial petition was “not eff ectively dismiss ed,” beca

use he did
not re ce i v e notice of the dismiss al; as the time for a summary dismiss al under the Act is within 90 day s of filing (see 725 I L CS 5/122-2.1(a) (2) (West 1998)), the trial court could not “g ive eff ect” to the summary dismiss al 11 year s l at er

. I n any event, the trial court grante d l eave to file the amende d petition as a succe ssive petition when it appointed counsel and order ed counsel to amend it. The State argues that the trial court provided defe ndant with “an equitable reme dy” and “the opportunity to challeng e the dismiss al on the merits” by g iving eff ect to the 1998 order . In addition, the State argues that def endant wa s never

g iven leave
to file successive petiti ons and that, in any case , defe ndant’s successive petiti ons wer e not timely filed under section 122-1(c ) of the Act (725 I L CS 5/122-1(c) (West 1998)). Whether

we revie w the trial court’s action as “g iving eff ect” to the first-stag e summary dismiss al of defe ndant’s initial petition or as a second- stag e dismiss al of defe ndant’ s t hird amende d petition, our standard of revie w is the same: de novo

. See People v. Hodges
, 234 I ll. 2d 1, 9 (2009) (summary dismiss al); People v. Starks
, 2012 I L App (2d) 110324, ¶ 32 (sec ond-stag e dismiss al). ¶ 21 The trial court ’s wr i t t en o rd er d i s m issing the orig inal pro se petition is hand-date d September 17, 1998, and file-stampe d October 1, 1998. There is no contention that this order of dismissal was not entere d within 90 day s of its filing. Instead, de fenda nt argues that the petition was not “ef

fec tively dismiss ed,” beca use he did not rec eive notice of the dismiss al. Howeve r, the cler

k’s failure to perf

orm a minist eria l duty does not aff ect the validity of the trial court’s perf

ormanc e of its judicial duty

. See Cirro W reck ing Co. v. Roppolo
, 153 I ll. 2d 6
, 16 (1992); People v. Ross
, 339 I ll. App. 3d 580, 583 (2003). The trial court ’s 1 9 9 8 dismiss al of de fenda

nt’s petition was not emascula ted by the clerk’s failure t o mail a copy to defe ndant, and there was no need, or authority , for the trial court to “g ive ef fec t” to that order 11 year s later. ¶ 22 Howeve r, the failure to gi v e p ro p er n o t i ce of a summary dismiss al does aff ect the petitioner’s appea l rights. See People v. Robinson
, 217 I ll. 2d 4 3
, 6 0 (2 0 0 5) (Notice was

serve d 12 day s afte r entry of dismiss al: “As noted above, there is no dispute the cler k had a

We not e tha t the tr ia l cou rt ’s ord er con ta ine d no fi ndi ngs of fa ct or con cl usi ons of la w; af te r 2 li st ing the it ems tha t it had con si der ed, the cou rt m er el y st at ed tha t it found the pet it i o n “ w i t h o u t

m er itandpat ent ly fr ivolo us.”

-6-statutory duty to serve petitioner on time. There fore
, petitioner had a right to timely service

.

In this case , howeve r, petitioner require s no reme dy beca use he was not prejudice d by the cler k’s err or. He filed his notice of appea l on time.”); People v. Fikara
, 345 I ll. App. 3d 144, 158 (2003) (supplemental opinion upon den i al of rehe aring ) (“I n instances wher e the require ments of Rule 651(b) h av e not been satisfied, the revie wing court must treat a defe ndant’s untimely notice of appea l as a peti tion for leave to file a late notice of appea l within the contemplation of Supreme Court Rule 606(c) ***. [C itation.] The revie wing court must then g rant the petition and consider the merits raised in the defe ndant’s appea l.”). The trial court in the case befor e us appea rs to have likewise considere d the lack of notice in the

same vein. The tri al co u rt d ec ided that it would “g ive eff ect” to the 1998 dismiss al order
, g iving defe ndant notice of that order and ruling that defe ndant “may appea l the order ” within 30 day s. ¶ 23 Howeve r S olom o n i c this may appea r, figura tively cutting the baby in half by allowing defe ndant to appea l the 1998 order cas t s i n t o o b livion ever y thing that occur

red in the 11
year s afte r the entry of that order

. Def endant filed t h ree “ame nded” petitions, raising additional claims of actua l innocenc e supported by aff idavi t s , including a rec antation and admission of perjury by th e o n l y State witness who place d defe ndant at the scene of the murder. The trial court appointed counsel to amend defenda n t ’s s econd amended petition. Def endant sought, the State did not contest, and the t rial court order ed DNA testing of the shoes, which eventua lly excluded defe ndant as having contributed to the m ix tu re o f DN A profiles found, the reby

removinganother

piece of evidenc e that supposedly tied defe ndant
to the murder. Attempting “to put the defe ndant in a position he would have been in” had he

rec eived the 1998 order
, as the State char acte rized the trial court’s 2009 d ec i s i o n , would

mean that the rec antation, the af fi d av i t s , and the DNA testing, all of which inured to defe ndant’s favor
, would be disreg arde d, as would be the fac t that defe ndant sat in prison for

more than a deca de while the proce eding s drag g ed on. The State also char acte rized the trial court’s de cision as “a

fair a nd equitable r esolution give n the circ umstances c oncer ning the long proce dural history of this case ”; this is analog ous to the Orwe llian attitude and prac tice of expungeme nt of the exis tence of the “unper son,” g iven “the long proce dural history of this

case .” ¶ 24 In g ener al, t he Act contemplates the fili n g o f o n l y one post conviction petit ion. People

v. Ortiz
, 235 I ll. 2d 319, 328 (2009). The Act expli citly provides that “[a]ny cl ai m o f substantial denial of constitutional rights not raised in the orig inal or an amende d petition is waived.” 725 I L CS 5/122-3 (West 1998). Howeve r, this statutory bar to succe ssive petitions will be relax ed in instances wher e fundame ntal fairne ss so require s. Ortiz
, 235 I ll. 2d at 329. Such instances include those wher e re laxation of the bar is nece ssary to preve nt a fundame ntal miscarr iag e of justice, a s in a claim of a ctual innoce nce. Id. ¶ 25 The S tate acknowledg es t hat, as defe ndant here raised a cla im of actua l innocenc e and

was not g iven tim el y notice of the summary dismiss al of his postconviction petition, “funda mental fairne ss” require s the re l ax ation of the bar. Howeve r, while submitt ing that “the succe ssive [t hird amende d] petition exis ted for c onsideration at the pr ocee ding on the People’s motion to dismiss ,” the State also maintains that “def endant’ s succe ssive petition

was filed outside of the time limit ation set by the 1999 Act.” Thus, acc ording to the State’s

-7-logic
, fundame ntal fairne ss would allow defe ndant to avoid the statutory limit of one

postconviction petition but not to avoid the statutory time limit for filing a petition. We note, howeve r, that the State has not m aintained consistent arguments befor e the trial court and this court reg arding which version of the Act, and its con co m i tant time limit ation, is applicable . Ultimately , the State’s timeliness arguments fail. ¶ 26 On appea l, the State asser ts corr ectly that the applicable s t at u t e o f l i m i t at i ons for a
p o s t co n viction petition is the one in eff ect at the time the petition is filed. See People v. Harris
, 224 I ll. 2d 115, 125 n.1 (2007). The State then posits that, since defe ndant filed his
pro se “succ essive petitions” in 1999, the “1999 Act was the version in eff ect at the time the defe ndant’s petition was filed.” Thus, acc ording to the State, the limit ations period contained in section 122-1(c ) of the Act results in a deadline of August 4, 1998, for defe ndant to have timely filed a p et i tion. As defe ndant’s pro se “ame nded petition” was filed on Marc h 12, 1999, the State asser

ts that it was untimely

and should have been dismissed. ¶ 27 Howeve r, in r eviewing the State’s motion to dismiss
, we note that the State argued and relied on filing- limit ation languag e that was added to section 122-1(c ) in 2003 by Public Act 93-605, § 15 (ef

f. Nov. 19, 2003). Under t hat v er s i o n , acc ording to the S tate, the deadline for a timely filed postconviction petition was September 26, 1998. ¶ 28 It is not the diffe ringdeadlines f or the timely

filing of a petiti on that are of i mportance here

. Under either of the State’s provided calc ulations, defe ndant’s filing would be untimely

. Rather, we find of intere st the State’s equivocation as t o the applicable version of the Act. In addition to amending the section 122-1(c ) time limit ation, Public Act 93-605, section 15, further amende d section 122-1(c ) to provide that t h e time limit ation “does not apply to a petition advanc ing a claim of actua l innocenc e.” See 725 I L CS 5 / 1 2 2 -1(c ) (West Supp. 2003). I n 2008, the State argued to the trial court that the time limit ation contained in the 2003 version of the Act applied; it cannot now argue to this court that the exemption to that limit ation, which was, in fac t, added to the Act by the very same amendment, does not apply

. See People v . Franklin , 115 I ll. 2d 328, 336 (1987). ¶ 29 We also note that, in its motion to dismiss
, the State posited that, since defe ndant’s initial postconviction petition h ad b ee n dismiss ed, the trial court “should treat defe ndant’s first, second, and third [amended] p et i tions as newly filed petitions .” (Emphasis added.) Def endant’ s third amende d petition, which was the subject of the State’s motion to dismiss
, was filed on Fe bruar

y 15, 2008; “[t] he applicable st atute of limit ations *** in eff ect at the time the petition [was] f

iled” ( Harris
, 224 I ll. 2d at 125 n.1) exempted pe titions advanc ing claims of actua l innoce n ce

. S ee 725 I L CS 5/122-1(c) (West 2008). Ag ain, the State’s position below belies its arguments here that the 1999 version of the Act applies and that the exemption for claims of ac tual innocenc e does not a pply

. ¶ 30 Our supreme court has also held that time is not an inhere nt element of the right to bring

a postconviction petition; thus, time limit ations in the Act are to be considere d as an aff irmative def

ense that can be raised, w aived, or forf eited by the S tate. People v . Boclair
, 202 I l l

. 2 d 8 9
, 101 (2002). As the State argued below the applicability of the 2003 amendment to the Act, we conclude that it has forf eited any arg

ument that the 199 9 t i me limit ation applies. Fur

ther, the equitable doctrine of laches bars claims by those who neg lect

-8-their rights to the detriment of others. People v. W ells
, 182 I ll

. 2d 471, 490 (1998). The application of this doctrine require s a showing of a lack of du e d iligenc e by the party

asser ting a claim and prejudice to the party asser ting the doctrine. Id. Although defe ndant did
not r aise the laches doctrine, the State failed to make any mention of defe ndant’s alleg edly untimely filing during a deca de of proce eding s in the trial court a nd defe ndant’s continued incar cer ation. We find that, under these circ umstances, the State has forf eited, and is further
preve nted by the doctrine of laches from raising
, an aff irmative def

en s e re garding the timeliness of defe ndant’s postconviction filing s. ¶ 31 Contrary to the trial court’s 2011 observation that
, i n l i gh t o f d ef en d ant’s 60-y ear sentenc e, “[w]e g ot plent y of time to work on this,” too much time has alre ady been expended. For whateve r rea son, defe ndant filed a pro se “ame nded” postconviction petition five months afte r the trial court dismiss ed the orig inal petition. For whateve r rea son, the trial
court allowed defe ndant to file two pro se am en d ed petitions, appointed counsel, order ed DNA testing, and order ed counsel to file a third amende d petition. For whateve r rea son, the State actively participa

ted in those proce eding s for almost a deca de befor e it objected to timeliness and jurisdiction. And for whateve r rea son, it took another 10 months to deal with the State’s motion to dismiss and another 20 months to deal with d ef en d an t’s motion to

rec onsider. As the tria l court said in deny ing the motion to rec onsider, “No one acted with d i l i g ence on this file.” Howeve r, “dilige nce” cannot be define d as disreg arding all the
proce eding s in this case since 1998. ¶ 32 We f

ind, a s a matter of law, that the trial court’s order of October 2009 g iving eff ect to the 1998 dismiss al was err oneous an d m ust be reve rsed. We also conclude that, since the applicable version of the Act provides that the time limit ation contained in section 122-1(c ) “does not apply to a petition a dvancing a claim of actua l innoc ence ” (725 I L CS 5/122-1(c ) (West 2008)), the State’s motion to dismiss had no merit and should have been denied by the trial court. Where a motion to dismiss is d en i ed
, the next step is the State’s filing of an

answe r to the petition within 20 day s. See 725 I L CS 5/122-5 (West 2008). Thus, we rema nd this case to the trial court for the State to expeditious ly and timely file an an s we r to defe ndant’s third amende d petition and for further appropriate and timely proce eding s on the petition. ¶ 33 For these rea sons, the judgme nt of the circ uit c ourt of Kane County is rever sed and the

cause is rema

nded for the State ’s fi ling of an answe r and for further proce eding s on defe ndant’s third ame nded petition.

¶ 34 Reverse d and re manded f or fur ther proc eeding s.

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