             NOTICE
                                         2015 IL App (5th) 140468
 Decision filed 09/11/15.   The
 text of this decision may be                 NO. 5-14-0468
 changed or corrected prior to
 the filing of a Peti ion for
 Rehearing or the disposition of                  IN THE
 the same.

                                   APPELLATE COURT OF ILLINOIS

                                 FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,        )     Appeal from the
                                            )     Circuit Court of
      Plaintiff-Appellant,                  )     St. Clair County.
                                            )
v.                                          )     No. 97-CF-430
                                            )
BRANDON CRAIGHEAD,                          )     Honorable
                                            )     John Baricevic,
      Defendant-Appellee.                   )     Judge, presiding.
________________________________________________________________________

         JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.
         Justices Welch and Chapman concurred in the judgment and opinion.

                                       OPINION

¶1       The State appeals from an order of the circuit court of St. Clair County granting

the postconviction request of defendant, Brandon Craighead, for a new sentencing

hearing. The issues raised in this appeal are: (1) whether defendant's postconviction

petition was timely filed and (2) whether Miller v. Alabama, 567 U.S. ___, 132 S. Ct.

2455 (2012), retroactively applies to cases on collateral review. We affirm.

¶2                                  BACKGROUND

¶3       After a jury trial, defendant was convicted of two counts of first-degree murder for

the April 17, 1997, murders of Martin and Judy Dotson. Defendant, age 16 at the time of

                                              1
the murders, was tried as an adult pursuant to section 5-4(6)(a) of the Juvenile Court Act

of 1987 (705 ILCS 405/5-4(6)(a) (West 1996)). On March 6, 2000, the trial court

sentenced defendant to natural life in prison pursuant to section 5-8-1(a)(1)(c)(ii) of the

Unified Code of Corrections, which required a mandatory natural life sentence for any

defendant, "irrespective of the defendant's age at the time of the commission of the

offense, [who] is found guilty of murdering more than one victim." 730 ILCS 5/5-8-

1(a)(1)(c)(ii) (West 1996). On direct appeal, this court affirmed defendant's convictions

and sentence. People v. Craighead, No. 5-00-0198 (2003) (unpublished order under

Supreme Court Rule 23). Our Illinois Supreme Court denied leave to appeal on June 4,

2003. People v. Craighead, 204 Ill. 2d 667, 792 N.E.2d 309 (2003) (table).

¶4     On October 4, 2004, defendant filed a pro se postconviction petition pursuant to

the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)). On

October 26, 2004, the trial court found the petition stated the gist of a constitutional

claim, appointed counsel, and ordered an amended petition be filed by December 23,

2004. Without objection by the State, counsel sought additional time to file an amended

petition. A first amended petition was filed on August 13, 2009.

¶5     The State filed a motion to dismiss on, inter alia, grounds of untimeliness, alleging

the last day for defendant to file a postconviction petition was March 2, 2004. In

response, defense counsel filed a motion to excuse late filing, alleging the late filing was

not due to defendant's culpable negligence. After a hearing in January 2011, the trial

court denied the State's motion to dismiss on grounds of untimeliness. The State did not

file a motion to reconsider.
                                             2
¶6     Defense counsel sought additional time to file a second amended petition and,

later, a third amended petition, both without objection by the State. Both amended

petitions incorporated Miller v. Alabama, which holds that a mandatory imposition of a

life sentence without parole on a person under the age of 18 at the time of the offense

violates the eighth amendment's prohibition against cruel and unusual punishment.

Miller, 567 U.S. at __, 132 S. Ct. at 2460. Defendant supplemented his petition with a

copy of People v. Davis, 2014 IL 115595, 6 N.E.3d 709, which holds Miller applies

retroactively to cases on collateral review.

¶7     The State filed a motion to dismiss defendant's third amended postconviction

petition, alleging, inter alia, each of defendant's arguments was either refuted by or not

supported by the record or by affidavit, and all claims were barred for a variety of

procedural reasons. The State sought to preserve for appellate review the trial court's

January 2011 hearing on timeliness and the retroactivity of Miller.             The State

acknowledged Davis, but asserted it was raising the retroactivity argument "in the likely

event that this issue is decided by the United States Supreme Court, given the fact that

other state high courts have ruled that Miller does not apply retroactively."

¶8     The trial court held a hearing, and the issue of retroactivity of Miller advanced to

the third stage, while the remaining issues remained at the second stage of postconviction

proceedings. On August 28, 2014, the trial court entered an order finding defendant was

entitled to a new sentencing hearing pursuant to Miller and Davis, but all other issues

were either "waived" or "without merit." The trial court also found the State preserved

the timeliness issue for appeal. The State now appeals.
                                             3
¶9                                        ANALYSIS

¶ 10   The first issue raised on appeal is whether defendant's postconviction petition was

timely filed.   The State argues the trial court should have dismissed defendant's

postconviction petition as untimely where he failed to prove lack of culpable negligence

for the late filing, and it raises five specific contentions as to why defendant failed to

meet his burden of proving he lacked culpable negligence in the late filing. On the other

hand, defendant insists the two issues raised by the State on appeal are intertwined.

Defendant contends we are not confined to the trial court's precise ruling made on

January 19, 2011, finding a lack of culpable negligence excused the delay and urges us to

consider the overall circumstances, including significant changes in both state and federal

law affecting defendant's initial petition, which remained pending in the trial court for

nearly a decade. We agree with defendant and, therefore, consider both the timeliness

issue and the issue of the retroactivity of Miller to cases on collateral review together.

¶ 11   A postconviction action is a collateral attack on a prior conviction and sentence

and " 'is not a substitute for, or an addendum to, direct appeal.' " People v. Simmons, 388

Ill. App. 3d 599, 605, 903 N.E.2d 437, 444 (2009) (quoting People v. Kokoraleis, 159 Ill.

2d 325, 328, 637 N.E.2d 1015, 1017 (1994)). The Act contemplates the filing of only

one postconviction petition, and obtaining leave of the court is a condition precedent to

the filing of a successive postconviction petition. Simmons, 388 Ill. App. 3d at 605, 903

N.E.2d at 444-45. The purpose of a postconviction proceeding is to allow inquiry into

constitutional issues relating to the conviction or sentence that were not and could not


                                              4
have been determined on direct appeal. People v. Barrow, 195 Ill. 2d 506, 519, 749

N.E.2d 892, 901 (2001).

¶ 12   The Act provides for up to three stages of postconviction proceedings. People v.

Pendleton, 223 Ill. 2d 458, 471-72, 861 N.E.2d 999, 1007-08 (2006). At the first stage,

the circuit court has 90 days to examine the petition and to determine, without input from

the State, whether it is frivolous or patently without merit, and, if so, to summarily

dismiss it. 725 ILCS 5/122-2.1(a)(2) (West 2004). If the petition is not dismissed at the

first stage or if the circuit court fails to rule on it in 90 days, it proceeds to the second

stage. 725 ILCS 5/122-2.1(b) (West 2004). At the second stage, the circuit court must

determine whether the petitioner is indigent, and, if so, whether he or she wishes to have

counsel appointed. 725 ILCS 5/122-4 (West 2004). After appointed counsel makes any

necessary amendments to the petition, the State may file a motion to dismiss. 725 ILCS

5/122-5 (West 2004). To survive a second stage dismissal, the petitioner must make a

substantial showing of a constitutional violation. People v. Quigley, 365 Ill. App. 3d 617,

618, 850 N.E.2d 903, 905 (2006). The circuit court must accept as true all of the

petition's well-pleaded facts. People v. Coleman, 183 Ill. 2d 366, 380, 701 N.E.2d 1063,

1071 (1998).    If a substantial showing is not made, the petition is dismissed; if a

substantial showing is made, the proceeding advances to the third stage and an

evidentiary hearing. Coleman, 183 Ill. 2d at 381-82, 701 N.E.2d at 1072.

¶ 13   The instant case presents a unique set of circumstances. In 2004, defendant filed a

pro se postconviction petition. The first stage followed schedule in that within 90 days of

the filing, the circuit court (1) found defendant raised the gist of a constitutional claim,
                                             5
(2) appointed counsel, and (3) ordered the petition amended. The proceedings then went

awry, with continuances and failure to address the underlying issues presented in the

petition, resulting in a 10-year second stage. However, during those 10 years, case law

developed which further supported defendant's initial contention that his mandatory

natural life sentence was unconstitutional because the sentencing judge was precluded

from considering his status as a juvenile.

¶ 14   We point out that time is not an inherent element of the right to bring a

postconviction petition and the time limitations provided in the Act are to be considered

affirmative defenses that can be raised, waived, or forfeited by the State. People v.

Boclair, 202 Ill. 2d 89, 101, 789 N.E.2d 734, 742 (2002). The State raised the issue of

timeliness; therefore, defendant was required to allege "facts showing that the delay was

not due to his *** culpable negligence." 725 ILCS 5/122-1(c) (West 2004). Here, the

trial court found that a lack of culpable negligence excused the delay in filing.

¶ 15   It is well settled "that the Act must be liberally construed to afford a convicted

person an opportunity to present questions of deprivation of constitutional rights."

People v. Correa, 108 Ill. 2d 541, 546, 485 N.E.2d 307, 308 (1985) (citing People v.

Pier, 51 Ill. 2d 96, 98, 281 N.E.2d 289, 290 (1972)). The record shows the State did not

file a motion to reconsider the January 19, 2011, ruling. The State did, however, ask to

have the issue "preserved" for review.       Nevertheless, when defense counsel sought

additional time to file a second amended petition, ultimately filed on December 20, 2012,

the State did not object.


                                              6
¶ 16   On June 25, 2012, Miller was decided. Defense counsel amended the petition by

incorporating Miller. On July 1, 2014, approximately three months after our supreme

court's decision in Davis, which recognized the "new substantive rule" established in

Miller, and held it applies retroactively, defense counsel amended the petition by

supplementing it with a copy of Davis. The circuit court conducted a hearing and entered

a written order on August 28, 2014, ordering a new sentencing hearing. While we agree

with the trial court that there is a lack of culpable negligence on the part of defendant

which excuses the delay in filing, even assuming arguendo the circuit court incorrectly

ruled on that issue on January 19, 2011, we cannot ignore defendant's new claim based

upon Davis.

¶ 17   In general, a "claim of substantial denial of constitutional rights not raised in the

original or an amended petition is waived." 725 ILCS 5/122-3 (West 2012). However,

an exception to the waiver language contained in section 122-3 will be made in cases in

which fundamental fairness requires such an exception. See People v. Pitsonbarger, 205

Ill. 2d 444, 459, 793 N.E.2d 609, 621 (2002). Pitsonbarger adopted the cause-and-

prejudice test as the tool for determining whether fundamental fairness allows for the

relaxation of the waiver rule contained in section 122-3 of the Act. The cause-and-

prejudice test adopted by our supreme court in Pitsonbarger and codified in section 122-

1(f) of the Act states:

       "Only one petition may be filed by a petitioner under this Article without leave of

       the court. Leave of court may be granted only if a petitioner demonstrates cause

       for his or her failure to bring the claim in his or her initial post-conviction
                                          7
       proceedings and prejudice results from that failure.        For purposes of this

       subsection (f): (1) a prisoner shows cause by identifying an objective factor that

       impeded his or her ability to raise a specific claim during his or her initial post-

       conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that

       the claim not raised during his or her initial post-conviction proceedings so

       infected the trial that the resulting conviction or sentence violated due process."

       725 ILCS 5/122-1(f) (West 2012).

Here, the new substantive rule proclaimed in Miller establishes cause because it was not

available earlier to counsel. Prejudice is established because the new rule has been

deemed by our supreme court to apply retroactively. Davis, 2014 IL 115595, ¶ 42, 6

N.E.3d 709. Therefore, we agree with defendant that even if the trial court erred in its

January 19, 2011, ruling and the trial court should have dismissed defendant's

postconviction petition as untimely filed, defendant's third amended petition nevertheless

warrants relief as a successive petition.

¶ 18   In Davis our supreme court firmly established that Miller applies retroactively to

cases on collateral review. Nevertheless, the State asks us to hold our decision in this

case in abeyance because the United States Supreme Court accepted certiorari in a case

from Louisiana, Montgomery v. Louisiana, ___ U.S. ___, 135 S. Ct. 1546 (2015), which

will consider the issue of the retroactivity of Miller. We decline the State's request to

hold our decision in abeyance.

¶ 19   Where our supreme court has declared the law on any point, it alone can modify or

overrule its previous opinion, and the appellate districts are bound to follow such
                                         8
decision. Agricultural Transportation Ass'n v. Carpentier, 2 Ill. 2d 19, 27, 116 N.E.2d

863, 867 (1953). Our supreme court's decision in Davis is clear, and it is binding on us.

Accordingly, defendant is entitled to a new sentencing hearing.

¶ 20   For the foregoing reasons, we hereby affirm the judgment of the circuit court of St.

Clair County and remand for a new sentencing hearing pursuant to Miller and Davis.



¶ 21   Affirmed and remanded.




                                            9
                               2015 IL App (5th) 140468

                                     NO. 5-14-0468

                                        IN THE

                          APPELLATE COURT OF ILLINOIS

                                   FIFTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,          )     Appeal from the
                                              )     Circuit Court of
      Plaintiff-Appellant,                    )     St. Clair County.
                                              )
v.                                            )     No. 97-CF-430
                                              )
BRANDON CRAIGHEAD,                            )     Honorable
                                              )     John Baricevic,
      Defendant-Appellee.                     )     Judge, presiding.
__________________________________________________________________________

Opinion Filed:        September 11, 2015
__________________________________________________________________________

Justices:           Honorable Richard P. Goldenhersh, J.

                 Honorable Thomas M. Welch, J., and
                 Honorable Melissa A. Chapman, J.,
                 Concur
__________________________________________________________________________

Attorneys        Hon. Brendan F. Kelly, State's Attorney, St. Clair County Courthouse,
for              10 Public Square, Belleville, IL 62220, Patrick Delfino, Director,
Appellant        Stephen E. Norris, Deputy Director, Jennifer Camden, Staff Attorney,
                 Office of the State's Attorneys Appellate Prosecutor, 730 East Illinois
                 Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
__________________________________________________________________________

Attorneys        Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy
for              Defender, Alexander G. Muntges, Assistant Appellate Defender, Office
Appellee         of the State Appellate Defender, Fifth Judicial District, 909 Water
                 Tower Circle, Mt. Vernon, IL 62864
__________________________________________________________________________
