Silence equals forfeiture

The Illinois Post-Conviction Hearing Act requires that a petitioner file his petition within three years after the date of his conviction. But the Act also contains a “special safety valve” that allows a petitioner to file an untimely postconviction petition if he or she alleges facts showing that the delay was not due to his or her culpable negligence.

Petitioner in this case filed an untimely postconviction petition. After the State filed a motion to dismiss arguing that the petition was not timely filed, the petitioner filed a supplemental petition alleging that the filing delay was not due to his culpable negligence. The petitioner attached an “affidavit” that was signed but not notarized. The trial court dismissed the petition.

On appeal, the State argued for the first time that the dismissal should be affirmed because petitioner failed to attach a notarized affidavit to his supplemental petition. The appellate court affirmed the dismissal.

The Illinois Supreme Court stated that the “parties dispute whether under the Act, petitioner’s supplemental petition containing his allegations on lack of culpable negligence must be accompanied by a notarized verification affidavit. We need not decide that issue because we agree with petitioner that the State forfeited its argument on the failure to attach a notarized verification affidavit by failing to raise that issue in the trial court.” The court relied on a line of cases holding that the State should not be allowed to raise for the first time on appeal a procedural matter that the defendant could have attempted to remedy if the issue had been raised in the trial court. Under that authority, in order to preserve the issue for review, the State should have raised it in its motion to dismiss.

Justice Freeman authored a special concurrence, joined by Justice Burke, in which he noted that the Post-Conviction Hearing Act provides that, once the State enters a case brought under the Act, “the matter is to proceed as it would in any adversarial civil case.” In light of that consideration, he “encourage[d] bench and bar to litigate second-stage proceedings with an eye toward proper, civil motion practice,” observing that “had that occurred here, it is possible that the two rounds of appeals that have taken place could have been avoided.”

People v. Cruz, 2013 IL 113399.