Supreme Court Summaries

Opinions filed March 21, 2013



People v. Cruz, 2013 IL 113399

Appellate citation: 2011 IL App (1st) 091944-U.


      CHIEF JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

      Justices Thomas, Garman, Karmeier, and Theis concurred in the judgment and opinion.

      Justice Freeman specially concurred, with opinion, joined by Justice Burke.


      In 1996, a Cook County jury convicted this defendant of first degree murder and attempted first degree murder, and he was sentenced to consecutive terms of 60 and 30 years. The appellate court affirmed.

      In 1999, Cruz filed a postconviction petition that, it is now agreed, was untimely. In it, he alleged ineffective assistance of trial and appellate counsel. In second-stage proceedings ordered by the appellate court after having received a supreme court supervisory order, counsel was appointed, although Cruz subsequently decided to proceed pro se. In 2008, an amended petition was filed realleging the ineffectiveness claims and also complaining about the jury instructions which had been given at his trial. The State moved to dismiss the amended petition, complaining of the original untimeliness referred to above. In response to this, Cruz filed a supplemental petition, attempting to show that he was eligible for a legal excuse for lateness because he had not been “culpably negligent.” He cited, among other things, conditions at the facility in which he had been incarcerated. The State responded that these allegations were insufficient to establish lack of culpable negligence and the circuit court granted its motion to dismiss for untimeliness, rejecting both the claims of no culpable negligence and ineffective assistance. Cruz sought review in the appellate court.

      On appeal, the State argued for the first time that the dismissal should be affirmed because Cruz had failed to attach a notarized verification affidavit to his supplemental petition alleging lack of culpable negligence, as required by the Post-Conviction Hearing Act. Relying on that argument, the appellate court affirmed the dismissal, finding the unverified pleading to be a “nullity.” It did not reach the claim of lack of culpable negligence.

      In this appeal to the Illinois Supreme Court, Cruz complained that the State had failed to raise the issue of his unnotarized verification affidavit in the trial court. In this decision, the Illinois Supreme Court agreed with him that this was a forfeiture of the issue by the State. In ruling as it did, the appellate court had failed to address the merits of Cruz’s allegations that lack of culpable negligence excused his late filing. On remand, it should do so, and should also address any other unresolved issues in connection with its review of the trial court’s rulings in granting the State’s motion to dismiss.