## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

People v . Cruz , 2013 IL 113399

Caption in S upreme Court: THE PEOPL E OF THE STATE OF I L L I NOI S, Appellee
, v. J OSE CRUZ, A ppellant.

Docke t No. 113399

Filed Marc h 21, 2013

Held ( Note : This syl l abus

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 by the Repo r t 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

. ) W h ere a postconviction petitioner alleg ed that his inability to obtai n adequate leg al advice while incar cer ated showed his lac k of culpable
neg lige nce and excused the late filing of his petition, but the circ uit court dismiss ed for the tardiness, the appellate court should a ddress this issue

on the merits on rema

nd and should not have af fi rmed based on the State’s claim of imprope r notarization.

Dec ision Under Review Appea l from the Appellate Court for the First District; hear d in that court on appea l from the C ircuit Court of C ook County , the Hon. Willi am G. L acy , J udg e, pre siding.

J udg ment Appellate c ourt judg ment reve rsed.
Cause re manded.Counsel on

Appea l Michae l J

. Pelletie r, State Appellate Def ender
, Alan D. Goldberg
, Deputy Def ender
, and Pamela M. Rubeo, Ass istant Appellate Def ender
, of the Offic e of the State Appellate D efe nder, of Chicag o, for a

ppellant.

L isa Madigan, Attorney Gene ral, of Springf ield, and Anita Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, Michelle Katz and Trac ey K. Annen, Assistant State’s Attorney s, of counsel), for the People.

J ustices CHI EF J USTI CE KI L BRIDE delivered the judgme nt of t he court, with opinion.
J ustices Thomas, Gar

man, Kar

meier, and Theis concur red in the judgme nt and opinion.
J ustice Fr eema

n specia lly concur

red, with opinion, joined b y J ustice Bur ke.

OP INION

¶ 1 Petitioner J ose Cruz filed a petition under the Post-Convi ction Hea ring Act (Act) (725 I L CS 5/122-1 et s eq. (West 1998)), alleg ing severa l violations of hi s constituti o n al ri gh ts. The circ uit court of Cook County g rante d the State’s motion to dismiss the petition, finding it was not timely filed and reje cting petitioner’s alleg ations that the delay in filing wa s not due to his culpable neg lige nce. In aff irming the dismiss al, the appellate court did not addre ss petitioner’s alleg ations on lack of culpable neg lige nce for the delay in f iling. The appellate
court instead held that those alleg ations wer e a “nullity ” beca use they wer e included in a supplemental petition f

iled with a

n unnotarized aff

idavit of verific ation. 2011 I L App (1st) 091944-U. ¶ 2 We allowed petitioner’s petition for leave to ap p ea l (Ill

. S. Ct. R. 315 (ef f. Fe b. 26, 2010)). We hold that the State forf eited its argument on the absenc e of a notarized aff idavit of verific ation by failing to raise that claim in the circ uit court. Acc ording ly
, we reve rse the appellate court’s judg ment and re mand to the appe llate cour t for fur ther review of the t rial court’s de cision on the State’s motion to dism iss.

¶ 3 I . BA CKGROUND ¶ 4 Following a jury trial, petitioner was convicted of first degree murder and attempted first degree murder. On J anuar y 3 0
, 1996, the trial court sentenc ed him to consec utive prison
terms of 60 y ear s for murder and 30 y ear s for attempted murder. The appellate court aff irmed the trial court’s judgme nt on direc t app ea l

. P eople v. Cruz
, No. 1-96-0575 (1998) (unpublished orde r under Supreme Court Rule 23).

-2-¶ 5 On J une 2, 1999, petitioner filed a pro se postconviction peti t i o n al l egi n g i neff ective assistance of trial and appellate counsel. The trial court summarily dismiss ed the petition as untimely

. The appellate court aff irmed the summary dismiss al of th e petition. People v. Cruz
, 324 I ll. App. 3d 927 (2001). ¶ 6 In the ex er ci s e o f o u r supervisory authority
, this court direc ted the appellate court to

vacate its judgment and rec onsider in light of People v . Boclair , 202 I ll. 2d 89 (2002). The appellate court then reve rsed the summary dismiss al of the petition and rema nded to the trial court for second- stag e postconviction proc eeding s. ¶ 7 The trial court appoint ed t h e p ub l ic defe nder to repr esent petitioner. On petitioner’s motion, howeve r, the trial court subsequently discharg ed the pub l i c d ef ender and allowed petitioner to proce ed pro se

. In J anuar y 2008, petitioner filed an amended postconviction petition r ealleg ing claims of ineffe ctive assistance of trial and appellate counsel. Petitioner also added a claim that the trial court err ed in instruc ting the jury on the fac tors to consider when we ighing

identification testimony

. ¶ 8 The State filed a motion to dismiss the am en d ed p et ition. The State alleg ed that the petition was not timely filed. Alternatively
, the State asser ted petitioner’s claims wer e barr ed by waiver or res judicata
, and the petition failed to make a substan t i al s h o wi n g of a constitutional viol ation. ¶ 9 In response , petitioner filed a supplemental petition containing his al le g ations that he wa s not c ulpably

neg lige nt in the untimely filing. Petitioner a sserted the delay in f iling was not du e t o his culpable neg lige nce beca use he is “illiterate in law,” has poor compre hension skills, and is not fluent in Eng lish. As a result, he was require d to rel y o n t h e advice of “jailhouse lawyers” and law cler ks assig ned to the pris o n l aw l i brar y who incorre ctly told petitioner he had six months following the denial of his petition for leave to appea l to file his postconviction petition. ¶ 10 Petitioner further asser ted the prison law cler

ks wer e not proper ly trained and he was not g iven adequate acc ess to the law library or leg al materia ls to prepa re his petition in a timely

manner

. Additionally
, petitioner alleged an attorney reta ined to revie w his case failed to advise him of t he correc t filing deadline. Finally
, while acknowled ging he had not alleg ed

a claim of actua l innocenc e, petitione r as s er ted the untimeliness of his petition should be excused bec ause he is actually innocent. ¶ 11 Petitioner attache d t o h i s s upplemental petition a document entitled “Af fidavit.” The document stated:

“I
, J OSE CRUZ, the Pro Se Def endant in the attached mot io n fo r L eave to file Suplement [ sic ]/ Amend to the Post Conviction Petition, being first duly sworn upon my oath, do here by swea r under penalty of perjury
, that the fac ts and information contained in the attached mot ion are true and corr ect to the best of m y kno wl ed g e. AFF IANT F URTHER SAYTH [ sic ] NOT.” ¶ 12 Petitioner signe d the document. He included a space for a date and notary signature, but the document wa s not dated and the re w as no notary signature or stamp. ¶ 13 Petitioner later file d a s e c o n d s upplemental petition, adding an alleg ation that his retained postconviction attorney

had a c onflict of intere st beca use he also repr esente d the detective

-3-wh o arr ested petiti oner. Petit ioner alleg ed his attorney ’s failures could be attributed t o t h e

conflict of interest. In an attache d notarized aff idavit, petitioner swore that the fac ts alleg ed

wer e true and cor

rec t to the best of his knowledg e. ¶ 14 The State filed a response to t h e s up p l em en t al p et i t i o n s , co n t en ding pe titioner’s alleg ations were insufficient to establish that the delay in filing wa s not due to petitioner’s

cu l pable neg lige nce. The State did not asser t that petitioner’s supplemental petiti o n containing his alleg ations on lack of culpable neg lige nce was defic ient for failure to include
a notar ized affidavit of ve rification. ¶ 15 The trial court enter ed a written order g ranting the State’s motion to dismiss the petition. The t ri al court conclude d that the petition was not timely filed and reje cted petitioner’s alleg ations on lack of culpable neg lige nce for the delay in filing. The trial court also reje cted petitioner’s inef

fec tive assistance of counse l claims on the merits. ¶ 16 On appea l, the State arg ued for the first time that the dism i s s al s h o u l d b e af firmed beca use petitioner failed to attach a notarized v er i fi ca t i on aff idavit to his supplemental petition a lleg ing lack of culpable neg lige nce. Relying on that argument, the appellate court held that section 122-1(b) of the Act require s pleading s to be verifie d by a notarized aff idavit and petiti oner’ s failure to attach a n o t ar i z ed verific ation aff idavit to his first supplemental petition rende red it a “nullity .” The proper ly verifie d second supplemental petition failed to include alleg ations on the rea sons for the delay in filing. The appellate court conclude d that “bec ause [petitioner] filed no notarized aff idavit to support the alleg ations of ca use for the delayed filing, the trial court proper ly dismiss ed the postconviction petition.” 2011 I L App (1st ) 0 9 1944-U, ¶ 28. Acc ording ly
, the appellate court aff irmed the trial court’s judgme nt dismiss ing the petition as untimely

.

¶ 17 I I . ANALYSI S ¶ 18 The parties ag ree t h at p et i t i o n er ’s postconviction petition was not timely

. The Ac t require d petitioner to file his petition within three y ear s of the date of his conviction. See 725 I L CS 5/122-1(c) (West 1998) (“N o proce eding s under this Article shall be commence d more than 6 months after

the denial of a petition f

or leave to a

ppeal *** or 3 year s from the date of conviction, whicheve r is sooner ***.”). Petitioner was sentenc ed on J anuar y 30, 1996. His petition was, there fore
, due by J anuar y 30, 1999, but it was not filed until J une 2, 1999. Acc ording ly
, it is undisputed that petitioner failed to file timely his postconviction petition. ¶ 19 The Act, nonetheless, contains a “spec ial safe ty valve” allowing a petit i o n er t o fi le an untimely postconviction petition if “the petitioner a lleg es fa cts showingthat the delay was not due t o h i s o r her culpable neg lige nce.” 725 I L CS 5/122-1(c) (West 1998); People v. R is s ley
, 206 I ll. 2d 403, 420-21 (2003). The parties dispute whether under the Ac t , petitioner’s supplemental petition containing his alleg ations on lack of culpable neg lige nce must be acc ompanied by a notarized verific ation aff id av i t

. We need not decide that issue beca use we ag ree with petitioner that the State forf eited its argument on the failure to attach
a notar ized verification affidavit by failingto raise that issue in the tria l court. ¶ 20 Ge n er al l y , an i s s u e not raised in the trial court is forf eited on appeal

. P eo

p l e v. Thompson
, 2 3 8 I l l. 2d 598, 612 (2010). Our appellate court rec ently held that the State

-4-forf eited a challeng e based o n a p e titioner’s failure to notarize a verific ation aff idavit beca

use that issue was not included in its motion to dismiss at the second stag e of the postconviction
proce eding s. People v. Turner
, 2012 I L App (2d) 100819, ¶ 42. The appellate court rea soned that the failure t o notarize a verification affida v i t i s a p rocedural defec t that may be easily

reme died if ra ised in a ti mely manner in the trial court. Turner , 2012 I LApp (2d) 100819, ¶¶ 42, 43. ¶ 21 The Turner court noted that in Boclair
, this court held the Act’s timeliness r equire ment can be procedura lly defa

ulted by the S tat e. Turner
, 2012 I L App (2d) 100819, ¶ 41 (citing Boclair
, 202 I ll. 2d at 98). In Boclair
, t his court explained that the State should not be allowed to raise for the first time on appea l a proce dural matter that the defe ndant could have attempted to reme dy if the issue had been raised in the trial court. Boclair
, 202 I ll. 2d at 98. Turner held that the same ru l e s h o u l d apply to the lack of notarization beca use, like untimeliness, it is a nonjurisdictional proce dural defe ct subject to proce dural defa ult by the State. Turner
, 2012 I L App (2d) 100819, ¶ 41. The appellate court, there fore
, conclude d that th e p et i t ioner’s noncompliance with the section 122-1(b) aff idavit require ment was not proper ly raised f or the fir st tim e on appe al. Turner , 2012 I LApp (2d) 100819, ¶ 44. ¶ 22 Her e, the State acknow ledg es it did n o t ra i s e t h e i s s u e o f t he petitioner’s a lleg ed noncompliance in the trial court, but raised it for the first time in its brief on appea l. Prior to the appea l, the focus was on whether petitioner’s alleg ations in his supplem en t al p et ition

wer e sufficie nt to establish a lack of culpable neg lige nce for the delay i n filing. The trial
court decide d petitioner’s alleg ations wer e in s u ff i ci ent to establish a valid excuse for the delay

. The State’s fa ilure to raise in the trial court the issue on the unnotarized verific ation aff idavit deprive d that court of the opportunity to co nsider the issue. Petitioner may have been g iven the opportunity to corr ect the alleg ed pleading defic iency if it had been raised in a timely manner

. ¶ 23 We c onclude that to pr eser ve this issue for revie w, the State should ha ve raised it in its motion to dismiss

. Pleading s filed at the second stag e of postconvict i o n p ro cee dings are g overne d by

section 122-5 of

the Act. Sec tion 122-5 provides that: “Within 30 day s afte r t he making of an order pursuant to subsection (b) of S ection 122-2.1, or within such further time as the court may set, the State shall answe r or

move to dismi ss. In the eve nt that a motion to dismiss is f iled and denied, the State
must file an answe r within 20 day s afte r such denial. No other or further pleading s shall be filed except as the court may o rd er o n i t s own motion or on that of either party

. The court may in its discretion g rant leave
, at any stag e of the proce eding prior
to entry of judgme nt, to withdraw the petition. The court may in its discretion make such order as to amendment of the petit ion or any other plea ding, or

as t o pleading
over, or filing further pleadings, o r extending the time of filing any pleading other than the orig inal petition, as shall be ap p ropriate, just and rea sonable and as is
g ener ally provided in civil ca ses.” 725 I L CS 5/ 122-5 (West 1998). ¶ 24 Section 122-5, there fore
, provides the State the option of filing an answe r or a motion to dismiss the petition. Here , the State filed a motion to di smiss. I n this case, the unnota rized verific ation aff

idavit w as attache d to petitioner’s supplemental petition alleg ing his lack of

-5-culpable neg lige nce for the d el ay i n filing. The supplemental petition was submitt ed in

response to the State’s motion to d i s m i s s the petition as untimely

. Acc ording ly
, the notarization issue could not have been raised by the S tate in its orig inal motion t o dismiss beca use the unnotarized aff

idavit was not submitte d u nti l la te r. The State, never

theless, could have soug ht to amend i t s m o t i on to dismiss to include the issue. Section 122-5 allows for “ame ndment of the petition or any other pleading ” within the discretion of the trial court. 725 I L CS 5/122-5 (West 1998). We also note that the State did not inclu d e t h e i s s u e in its
response to the supplemental petition. ¶ 25 We hold that the State forf eited its argument challeng ing the supplemental petition ba sed

on the unnot ar i z ed v er i fication aff idavit by failing to raise that issue in the trial court. Petitioner asks this court to rema nd to the appellate court to consider his claims on lack of culpable neg lige nce alleg ed in his supplemental petition. W e agree that the appe llate court should initially consider the merits of t hose allega tions, along wit h any other iss ues raised in the appea l of the t ri al co u rt ’s decision g ranting the State’s motion to dismiss

. We, there fore
, rema

nd this cause to the appellate court for further revie w of the trial court’s ruling on the State’s motion to dism iss.

¶ 26 I I I . CONCLUSI ON ¶ 27 For the fore g oing rea sons, we reve rse the appellate court’s judgme nt and rema nd to the appellate court for further revie w of the trial court’s decision g ranting the State’s motion to dismiss

.

¶ 28 Appellate c ourt judg ment reve rsed. ¶ 29 Cause re manded.

¶ 30 J USTI CE FREEMAN, spe cially concur ring : ¶ 31 I agree with the court’s judgme nt. I write separ ately in order to make a fewobservations about prope r motion practice under the Act. ¶ 32 The court corr ectly notes the importance of section 122-5 of the Act to this case

. Indeed, that section reve als that the leg islature intended that, once the State enter s the case , the matter is to proce ed as it would in any adver sarial civil case

. 725 I L CS 5/122-5 (West 2010). To that end, it is perha

ps helpful to think of the petition initially filed to commence a postconviction
proce edingas func tioning in many way s like a complaint does in a c ivil case. ¶ 33 Her e, the S t at e soug ht dismiss al of the i nitial petition on the grounds that it lacke d the require d alleg ations of culpable neg lige n ce

. I n response , petitioner filed a “supplementa l petition” that contained the requisite allega tions, albeit l acking a supporting affidavit. The better prac tice would have been for the parties to have let the circ uit court rule on the State’s motion and the orig inal petition. Section 122-5 all o ws t h e co urt to have dismiss ed the orig inal, defic ient petition with leave to amend it to include the missing culpable- neg lige nce alleg ations. Alternatively
, petitioner could have soug ht leave of court to file an amende d petition, as section 122-5 al l o ws

. At that point, the State could then have challeng ed the

-6-sufficie ncy of the pe titioner’s new pleading in a new motion to dismiss or filed a n answe r. By proce eding in either manner , the case would have adv an ce d i n a way much more consistent with section 122-5. ¶ 34 Given the languag e of section 122-5, I encour ag e bench and bar to litigate se cond-stag e proce eding s with an eye toward proper , civil motion prac tice. In my view, had that occur red here
, it is possible the two rounds of appea ls that have taken place could have been avoided.

¶ 35 J USTI CE BURKE joins in this special conc urre nce.

-7-