SECOND DIVISION November 26, 2013

1-12-1473

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 86 CR 9932 ) ) CURTIS CROFT, ) Honorable ) Lawrence Flood, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE QUINN delivered the judgment of the court, with opinion. Justices Simon and Pierce concurred in the judgment and opinion.

OPINION

¶1 Defendant Curtis Croft appeals from the second-stage dismissal of his petition for relief

under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). He

contends that the circuit court erred in dismissing his petition where his sentence of natural life

without parole was imposed without consideration of the factors cited in Miller v. Alabama,

,

(2012). For the reasons stated, we affirm.

¶2 I. BACKGROUND

¶3 At the age of 17, defendant participated in the gang rape and murder of 16-year-old Kim

Boyd. Following a 1987 bench trial, he was found guilty of murder, aggravated kidnapping, and

aggravated criminal sexual assault, then sentenced to natural life imprisonment for the murder, 1-12-1473

45 years for aggravated criminal sexual assault, and 10 years for aggravated kidnapping, to run

concurrently. This court affirmed defendant's convictions on direct appeal; however, we vacated

his sentence and remanded the cause for a new sentencing hearing after finding that the trial court

improperly considered the statements of his codefendants at sentencing. People v. Croft,

(1991). On remand, a different judge presided over defendant's sentencing hearing

and imposed the same sentence as before, stating:

"The defendant talks about mistake in judgment. This is

not a case of passive presence, negative acquiescence, mistaken

judgment, none [sic] participation. It is not a situation of not using

good judgment to associate with certain people, in effect then

being in the wrong place at the wrong time.

This is a case of the defendant's participation in the series

of events which properly resulted in guilty findings as to murder

and aggravated kidnapping and aggravated criminal sexual assault.

The evidence in this case seems to me to be about a person

who was really cold hearted, almost inhuman in his participation in

this brutal, heinous, evil doing. One of the most brutal crimes I

have ever seen in all the years I've spent in this building.

About 40 stab wounds, gang rape, driving over this young

girl in a car, after having her in the trunk. One can almost not

imagine any worst [sic] facts. Nightmarish is almost too weak a

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word. It staggers the imagination.

And this defendant cannot simply say, gee, I'm terribly

sorry this all happened.

There is [sic] certain crimes that there are no second

chances. There are [sic] no one free bite. There are no

forgivenesses, saying I'm sorry, expressing regret. Even if I were

to consider the defendant's words about mistake in judgment to be

equivalent, are [sic] not good enough.

There was a participation in one of the brutal crimes that

I've heard about. And for that a great penalty must be paid.

The victim cannot be brought back and the family's tragedy,

which the defendant alluded to in his remarks cannot be allayed. I

[sic] simply saying, well, I'm sorry it happened. I'm sorry, I was

there or legally participated.

So, considering the presentence report, considering the

arguments and testimony and evidence at this sentencing hearing,

considering the factors set forth in the statute, considering the

crime and the criminal, the crime being about as heinous a murder

as one can imagine, and by a person who because of the nature of

the crime, one can only determine to have evil intentions and to be

absolutely heartless, merciless and heartless during the killing and

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torture of this young girl.

All things considered, the sentence of the Court will be a

reiteration of Judge Neville's sentence, that is natural life without

parole on the murder, 45 years for aggravated criminal sexual

assault, and 10 years for aggravated kidnapping, concurrent."

On appeal, this court reduced defendant's sentence for aggravated criminal sexual assault to 30

years' imprisonment, but otherwise affirmed the sentence imposed. People v. Croft, No. 1-92-

2163 (1994) (unpublished order under Supreme Court Rule 23). The supreme court denied

defendant's petition for leave to appeal on December 6, 1994. People v. Croft,

(1994).

¶4 On March 25, 1999, defendant filed a pro se petition for postconviction relief alleging

ineffective assistance of trial and appellate counsel. Defendant acknowledged that the petition

was untimely, but claimed that he was not culpably negligent for the late filing. First, defendant

noted that he had sought relief in federal court after his petition for leave to appeal was denied

and argued that his "time spent litigating in Federal Court shows that he was not setting [sic] by

idlely [sic] during this time period but was actually attempting to obtain some relief in his cause."

Second, he claimed that in April 1998, prison staff confiscated his documents from a jailhouse

paralegal named "Thomas," who was working on his petition, and the documents were not

returned to him until December 1998. A grievance report attached to the petition showed that

two volumes of defendant's trial transcripts were, indeed, confiscated from another inmate's cell

and ordered returned to him.

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¶5 On April 15, 1999, the circuit court summarily dismissed defendant's postconviction

petition on the grounds that it was untimely and that defendant had failed to demonstrate his lack

of culpable negligence. This court affirmed that dismissal. People v. Croft, No. 1-99-1606 (Mar.

21, 2001) (unpublished order under Supreme Court Rule 23). However, the supreme court

subsequently entered a supervisory order directing us to reconsider the matter in light of People

v. Boclair,

(2002). People v. Croft,

(2003) (supervisory order).

Having reconsidered, we found that the trial court erred in summarily dismissing defendant's

petition on the grounds of untimeliness and, therefore, reversed and remanded the cause for

further proceedings. People v. Croft, No. 1-99-1606 (July 20, 2004) (unpublished order under

Supreme Court Rule 23).

¶6 On remand, the public defender was initially appointed to represent defendant on his

petition. Defendant then hired a private attorney, and the public defender was granted leave to

withdraw. Eventually, defendant fired his private attorney as well and filed a pro se amended

postconviction petition alleging that his life sentence was unconstitutional " 'As Applied' " under

Roper v. Simmons,

(2005), and People v. Miller,

(2002). The State

filed a motion to dismiss defendant's petition, arguing that it was untimely and that defendant had

failed to explain why the delay in filing was not due to his culpable negligence. After the State

filed its motion, defendant again requested assistance of counsel, and the public defender was

reappointed to represent him.

¶7 On November 10, 2011, a hearing was held on the State's motion to dismiss. At the

hearing, the State reiterated that defendant's petition was four years late and that he had not

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established why he was not culpably negligent for the late filing. In response, counsel for

defendant stated:

"I contacted [defendant] and asked him if he could provide me with

any information that could explain why his petition was four years

late, and the only thing that he responded is the fact that he thought

his petition wasn't late because he was raising a constitutional

issue, and that was the only thing, Judge."

On March 22, 2012, the court granted the State's motion to dismiss, finding that "basically, the

defendant's filing was untimely, no basis under the law to exclude [sic] that untimeliness."

Defendant now appeals from that dismissal.

¶8 II. ANALYSIS

¶9 The Act provides a mechanism by which a criminal defendant may assert that his

conviction was the result of a substantial denial of his constitutional rights. People v. Delton,

(2008). At the second stage of proceedings, defendant has the burden of

making a substantial showing of a constitutional violation. People v. Pendleton,

(2006). A petition may be dismissed at this stage only where the allegations, liberally

construed in light of the trial record, fail to make such a showing. People v. Hall,

(2005). All well-pleaded facts that are not positively rebutted by the record are to be taken

as true. Pendleton,

. We review de novo the dismissal of a petition without an

evidentiary hearing. Hall,

.

¶ 10 In this appeal, defendant contends that his natural life sentence for a murder that occurred

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when he was under 18 years of age is unconstitutional under Miller v. Alabama. In Miller,

,

, the United States Supreme Court held that "mandatory life without

parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's

prohibition on 'cruel and unusual punishments.' " While not imposing a categorical bar on life

sentences for juveniles, the Court required "that a sentencer follow a certain process–considering

an offender's youth and attendant characteristics–before imposing a particular penalty." Miller,

,

. Defendant claims that such a process was not followed in the

case at bar and that "he was sentenced without regard to his age and its hallmark features."

¶ 11 The State responds that Miller does not apply retroactively to cases on collateral review,

as it announced a new rule of constitutional law. The State further responds that Miller does not

render defendant's natural life sentence unconstitutional because it only prohibits mandatory life

sentences for juveniles, not a discretionary life sentence such as the one defendant received in

this case.

¶ 12 Before considering these arguments, we must first address an issue that the parties have

almost completely failed to discuss: the untimeliness of defendant's petition. At the time

defendant's petition was filed, the Act provided:

"No proceedings under this Article shall be commenced more than

6 months after the denial of a petition for leave to appeal or the

date for filing such a petition if none is filed or more than 45 days

after the defendant files his or her brief in the appeal of the

sentence before the Illinois Supreme Court *** or 3 years from the

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date of conviction, whichever is sooner, unless the petitioner

alleges facts showing that the delay was not due to his or her

culpable negligence." 725 ILCS 5/122-1(c) (West 1998).

See People v. Wallace,

(2010) (noting that "[t]he applicable time limits

for a postconviction petition are the ones that were in effect when the defendant filed the

petition"). Throughout the proceedings, defendant conceded that his postconviction petition was

untimely and that is not at issue here. He argued, however, that the late filing was not due to his

culpable negligence.

¶ 13 Our supreme court has held that culpable negligence "contemplates something greater

than ordinary negligence and is akin to recklessness." Boclair,

. In this case,

defendant offered three reasons for why he was not culpably negligent for the late filing of his

petition: (1) he was initially busy seeking relief in federal court; (2) prison staff confiscated his

documents in April 1998; and (3) he thought his petition was not late because he was raising a

constitutional issue. None of these excuses are persuasive. First, there is no reason defendant

could not file a timely postconviction petition regardless of his proceedings in federal court.

Second, defendant's petition was already late by the time his documents were confiscated by

prison staff in April 1998. And, finally, the fact that defendant thought his petition was not late

because he was raising a constitutional issue is simply ignorance of the law, which our supreme

court has noted will not excuse a delay in filing a lawsuit. People v. Lander,

(2005). Under the circumstances, defendant clearly failed to establish that the late filing of his

petition was not due to his culpable negligence. Boclair,

.

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¶ 14 That said, even assuming arguendo his petition was timely, we find defendant's claim that

his life sentence is unconstitutional under Miller to be without merit. In Miller, the Supreme

Court prohibited "mandatory" life sentences for juveniles. Miller,

,

. Here, section 5-8-1 of the Unified Code of Corrections, which applied at the time of

defendant's sentencing, provided for a discretionary life sentence, stating:

"(a) A sentence of imprisonment for a felony shall be a determinate

sentence set by the court under this Section, according to the

following limitations:

(1) for murder, (a) a term shall be not less than 20 years and

not more than 40 years, or (b) if the court finds that the murder was

accompanied by exceptionally brutal or heinous behavior

indicative of wanton cruelty *** the court may sentence the

defendant to a term of natural life imprisonment ***[.]"

(Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, ¶ 1005-8-1(a)(1).

At defendant's sentencing hearing, moreover, the trial court expressly considered defendant's

presentence investigation report, which included his age, as well as "the crime and the criminal."

People v. Partin,

(1987) (trial court is presumed to have considered any

evidence of mitigation before it). Ultimately, however, the court found the murder of which

defendant was convicted to be "brutal" and "as heinous a murder as one can imagine," and, on

that basis, rejected a term of years in favor of a sentence of natural life imprisonment. This court

rejected defendant's claim on direct appeal that his sentence was excessive. Croft, No. 1-92-

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2163. Contrary to defendant's claim, there is simply no basis for applying Miller in this case.

Defendant not only received a discretionary life sentence, but his youth was also a mitigating

factor considered by the court in its sentencing determination. Miller,

, __,

.

¶ 15 We reaffirm our holding in People v. Williams, that Miller is a "watershed rule[] of

criminal procedure" and should be applied retroactively. (Internal quotation marks omitted.)

People v. Williams,

(quoting People v. Sanders,

(2010)). In the case at bar, however, Miller does not provide a basis for collateral relief

where a juvenile's natural life sentence was imposed as a result of the sentencing court exercising

its discretion, as opposed to mandatorily sentencing defendant to natural life. Miller,

,

. We specifically leave the issue of whether the Supreme Court's holding in

Miller trumps the timeliness of a postconviction petition to be decided in a case where Miller

applies.

¶ 16 For the reasons stated, we affirm the second-stage dismissal of defendant's postconviction

petition by the circuit court of Cook County.

¶ 17 Affirmed.

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