also specially concurring:
The majority holds that a post-conviction petition which is untimely filed and which fails to allege facts which show that the delay in filing was not due to the petitioner’s “culpable negligence” (725 ILCS 5/122 — 1(c) (West 2000)) may not be summarily dismissed by a circuit court during the first stage of post-conviction proceedings under section 122 — 2.1(a)(2) of the Post-Conviction Hearing Act (725 ILCS 5/122 — 2.1(a)(2) (West 2000)). I write separately to explain the basis of my agreement with this conclusion. I also write, however, to express my disagreement with the majority’s decision to neither cite to nor to explain the effect of its ruling on this court’s recent decision in People v. Collins, 202 Ill. 2d 59 (2002).
I
In People v. Collins, 202 Ill. 2d 59 (2002), this court affirmed the circuit court’s summary dismissal of a pro se defendant’s post-conviction petition because the defendant failed to comply with the affidavit requirement set forth in section 122 — 2 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 — 2 (West 2000)). That section states, in pertinent part, that “[t]he petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.” 725 ILCS 5/122 — 2 (West 2000). The defendant in Collins had alleged in his post-conviction petition that his court-appointed attorney had failed to comply with his request to file an appeal. The defendant’s petition in Collins did contain an affidavit which attested to the truthfulness of this claim. However, this court concluded that the defendant’s affidavit served only to verify the allegations in the petition. As such, this court reasoned, the defendant’s affidavit was sufficient to satisfy section 122 — 1(b) of the Act (725 ILCS 5/122 — 1(b) (West 2000) (post-conviction petition must be verified by affidavit)), but was insufficient to satisfy the requirements of section 122 — 2. Collins, 202 Ill. 2d at 67.
To satisfy the affidavit requirement of section 122 — 2, this court held, the defendant should have attached at least one additional affidavit in support of his post-conviction claim. This second affidavit was necessary, this court reasoned, to show “that the verified allegations are capable of objective or independent corroboration.” Collins, 202 Ill. 2d at 67. Therefore, the additional affidavit needed to come from someone other than the defendant. This court further held that, in the absence of a second affidavit, the defendant was required to “at least explain why such [objective or independent] evidence is unobtainable.” Collins, 202 Ill. 2d at 68. The defendant’s failure to comply with this latter “pleading requirement,” by itself, warranted summary dismissal of his post-conviction petition. Collins, 202 Ill. 2d at 65, 68. This court emphasized in Collins that it was not deciding whether the defendant’s petition alleged a constitutional deprivation. See Collins, 202 Ill. 2d at 69 (distinguishing People v. Edwards, 197 Ill. 2d 239 (2001)). Rather, the court’s holding rested solely on the affidavit requirement of section 122 — 2.
II
In the case at bar, this court is asked to decide whether a post-conviction petition which has not been filed within the time limitations set forth in section 122 — 1 of the Post-Conviction Hearing Act (725 ILCS 5/122 — 1 (West 2000)) and which has failed to allege facts which show that the delay in filing was not due to the petitioner’s “culpable negligence,” may be summarily dismissed as “frivolous or *** patently without merit” under section 122 — 2.1(a)(2) of the Act (725 ILCS 5/122— 2.1(a)(2) (West 2000)). The majority concludes that such a petition may not be summarily dismissed. In so holding, the majority reasons that the circuit court may not consider the timeliness of the post-conviction petition at the summary dismissal stage of the proceedings because the time limitations are neither included nor mentioned in the section of the Act which authorizes summary dismissals. The majority explains:
“Section 122 — 2.1(a)(2) requires the circuit court to determine within 90 days of the filing of a post-conviction petition whether the petition is ‘frivolous or is patently without merit.’ 725 ILCS 5/122 — 2.1(a)(2) (West 2000). Importantly, we note that this section is silent regarding timeliness. Rather, timeliness is addressed elsewhere, in section 122 — 1(c), instructing defendants as to the time periods for filing petitions. If this court can ascertain legislative intent from the plain language of the statute itself, that intent must prevail. Barnett v. Zion Park District, 171 Ill. 2d 378 (1996). We will not depart from the plain language of the statute by reading into it exceptions, limitations, or conditions that conflict with the express legislative intent. Barnett, 171 Ill. 2d at 389.
Under a plain reading of section 122 — 2.1(a)(2), the circuit court may dismiss a post-conviction petition at the initial stage only if the petition is deemed to be ‘frivolous or patently without merit,’ not if it is untimely filed. If the legislature intended for a trial judge to sua sponte dismiss a petition as being untimely, it would have so provided in section 122 — 2.1(a)(2) of the Act. Instead, the legislature provided in section 122 — 5 that the State may file a motion to dismiss. [Citation.] By addressing timeliness and frivolousness in separate provisions of the Act, the legislature plainly intended to draw a distinction between these two flaws of post-conviction petitions.” 202 Ill. 2d at 100-01.
After reaching the above conclusions, the majority-goes on to determine that the phrase “frivolous or *** patently without merit” refers only to the substance of the claim alleged in the petition, not any procedural requirements or limitations imposed by the Act. The majority notes:
“To accept the argument that the circuit court has the authority to dismiss [an untimely] petition pursuant to section 122 — 2.1(a)(2) of the Act we would have to hold, contrary to the language of the Act, that the phrase ‘frivolous or *** patently without merit’ encompasses untimely petitions. We will not ignore the Act’s language and adopt this interpretation. If a petition is untimely that does not necessarily mean that the petition lacks merit.” 202 Ill. 2d at 101.
The majority also explains that it would be improper for a circuit court to consider the timeliness of a post-conviction petition at the summary dismissal stage because such an inquiry might require the court to determine whether the petitioner had alleged facts showing a lack of “culpable negligence” which would excuse the tardy filing. See 725 ILCS 5/122 — 1(c) (West 2000). Making a determination as to whether a petitioner lacked culpable negligence, the majority observes, would require the circuit court to do more than examine whether the petition alleged a violation of a constitutional right. The majority concludes that this would be improper:
“Moreover, when a circuit court determines whether a defendant is culpably negligent in filing his petition late, the circuit court makes an assessment of the defendant’s credibility. See McCain, 312 Ill. App. 3d at 531. At this initial stage of the proceedings, however, the court should only determine whether the petition alleges constitutional deprivations. The process at the summary review stage measures a petition’s substantive virtue rather than its procedural compliance. See Johnson, 312 Ill. App. 3d at 534. In determining an issue of credibility, the circuit court necessarily exceeds the boundary set by section 122— 2.1(a)(1).” (Emphasis added.) 202 Ill. 2d at 102.
Finally, the majority notes that it is inappropriate as a matter of policy for the circuit court to consider the timeliness of a post-conviction petition at the summary dismissal stage because to do so might result in the loss of a meritorious claim of actual innocence. As the majority explains:
“Claims of actual innocence may be raised in a manner other than in a post-conviction petition, including in a section 2 — 1401 motion. 735 ILCS 5/2 — 1401 (West 2000). Nonetheless, to allow the circuit court to dismiss summarily post-conviction petitions for failure to present evidence of actual innocence in a timely manner could lead to a miscarriage of justice. Although our criminal justice system needs finality in criminal litigation and judgments, it should not come at the expense of justice and fairness.” 202 Ill. 2d at 102.
For the foregoing reasons, the majority concludes that matters of timeliness must “be left for the State to assert during the second stage of the post-conviction proceedings.” 202 Ill. 2d at 102. During the initial, summary dismissal stage of post-conviction proceedings, the majority holds, a circuit court may not consider whether a post-conviction petition has satisfied the procedural requirement of timeliness.
III
The majority opinion in this case conflicts with Collins at every significant point in its analysis. For example, this court’s opinion in Collins states:
“Contrary to the clear mandate of section 122 — 2 of the Act, defendant’s petition was unsupported by ‘affidavits, records, or other evidence’ and offered no explanation for the absence of such documentation. This fact alone justifies the summary dismissal of defendant’s petition.” (Emphasis added.) Collins, 202 Ill. 2d at 66.
The affidavit requirement that this court found dispositive in Collins was found in section 122 — 2 of the Act, not section 122 — 2.1, the section of the Act which authorizes summary dismissal. Pursuant to the majority opinion in the case at bar, a circuit court may not look to any section of the Act other than section 122 — 2.1 to determine whether a post-conviction petition is subject to summary dismissal. See 202 Ill. 2d at 100.
In addition, the majority opinion in the case at bar holds that the only inquiry the circuit court may make at the summary dismissal stage is whether the post-conviction petition “alleges constitutional deprivations.” 202 Ill. 2d at 102. In other words, under the majority’s holding, the circuit court is limited at the summary dismissal stage to asking whether the petition states the “ ‘gist of a constitutional claim.’ ” 202 Ill. 2d at 99-100, 102, quoting People v. Gaultney, 174 Ill. 2d 410, 418 (1996). According to the majority opinion, matters of “procedural compliance” (202 Ill. 2d at 102) may not be considered in the initial stage of post-conviction review.
In contrast, this court in Collins did not consider whether the defendant’s petition successfully alleged a constitutional deprivation by stating the gist of a constitutional claim. Instead, the court concerned itself solely with whether the defendant complied with the affidavit requirement of section 122 — 2. In contrast to the case at bar, Collins holds that the circuit court should consider whether a pro se defendant has complied with the Act’s procedural requirements at the initial stage of post-conviction review. Collins holds that a pro se defendant’s failure to explain the absence of a second affidavit is sufficient reason, standing alone, to summarily dismiss a post-conviction petition (Collins, 202 Ill. 2d at 66, 68), even though the failure to provide that explanation “does not necessarily mean that the petition lacks merit” (Boclair, 202 Ill. 2d at 101).
This court’s holding in Collins also conflicts with the policy concerns expressed by the majority in the instant case. As noted, in Collins, this court held that a pro se post-conviction petition should be summarily dismissed if it fails to comply with one of the pleading requirements set forth in section 122 — 2 of the Act. Section 122 — 2 provides, in full:
“The petition shall identify the proceeding in which the petitioner was convicted, give the date of the rendition of the final judgment complained of, and clearly set forth the respects in which petitioner’s constitutional rights were violated. The petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached. The petition shall identify any previous proceedings that the petitioner may have taken to secure relief from his conviction. Argument and citations and discussion of authorities shall be omitted from the petition.” 725 ILCS 5/122 — 2 (West 2000).
As this court explained in Collins, the defendant in that case failed to satisfy section 122 — 2’s requirement that he “at least explain” why a second affidavit was not attached to his petition. Collins, 202 Ill. 2d at 68. Therefore, this court held, his petition was properly dismissed at the summary review stage. Collins, 202 Ill. 2d at 68. Notably, in reaching this conclusion, this court chose not to provide the defendant with the opportunity to amend his post-conviction petition with an explanation for why an additional affidavit was unavailable. Our case law would permit such an amendment. See People v. Watson, 187 Ill. 2d 448 (1999). Nevertheless, this court held that the defendant’s petition should be finally dismissed.
This court’s decision not to permit any amendment of the defendant’s post-conviction petition in Collins is of considerable importance. Under this holding, it is possible that a pro se defendant who has a meritorious constitutional claim, including a claim of actual innocence, may never have that claim reviewed by the courts solely because of a technical pleading defect that is easily subject to correction through amendment. This court recognized in Collins that its holding “will, in some cases, place an unreasonable burden upon post-conviction petitioners.” Collins, 202 Ill. 2d at 68. However, this court concluded that it was constrained by the language of the Act to reach this result. See Collins, 202 Ill. 2d at 68 (“[n]othing in the Act” authorizes the circuit court to depart from section 122 — 2’s pleading requirements at the summary dismissal stage).
The majority today reaches a contrary result. In the case at bar, the majority holds that it would be a “miscarriage of justice” for a meritorious claim of actual innocence to evade judicial review because of a procedural deficiency in the post-conviction petition. According to the majority, allowing a claim of actual innocence to be lost because of a procedural deficiency would be contrary to principles of “justice and fairness.” 202 Ill. 2d at 102. In sum:
• This court in Collins held that, in determining whether a pro se post-conviction petition is subject to summary dismissal, the circuit court should look beyond section 122 — 2.1(a)(2) of the Act and consider whether the petition has complied with the pleading requirements set forth in section 122 — 2. The majority opinion in the case at bar holds that the circuit court may not consider sections of the Act other than section 122 — 2.1(a)(2).
• This court in Collins upheld the summary dismissal of the defendant’s post-conviction petition without considering whether the defendant’s petition stated the gist of a constitutional claim. The majority opinion in this case holds that the circuit court may dismiss a post-conviction petition at the initial stage of review only if the petition fails to state the gist of a constitutional claim.
• This court in Collins held that a technical pleading deficiency in a pro se post-conviction petition warrants its summary dismissal. The majority opinion in the case at bar holds that, at the summary dismissal stage, the circuit court should not consider whether the petition is in “procedural compliance.” 202 Ill. 2d at 102.
• This court in Collins held that the language of the Act requires strict procedural compliance from pro se post-conviction petitioners at the summary dismissal stage. The majority opinion in the instant case holds that such compliance may not be required at the initial stage of post-conviction review because to do so could result in “a miscarriage of justice.” 202 Ill. 2d at 102.
This court’s opinion in Collins and the majority opinion in this case are in direct and irreconcilable conflict. Given this conflict, it appears that the majority opinion in the case at bar, as the later issued of the two opinions, has overruled this court’s decision in Collins sub silentio. The majority’s decision to overrule Collins is not, of itself, error. However, I do believe that the majority has seriously erred by not citing Collins or explaining the effect that the instant holding has on that decision.1 As a result of the majority opinion in this case, the bench and bar of this state will be confronted with two opinions from this court, issued within six months of each other, whose holdings and reasoning with respect to the summary dismissal of post-conviction petitions are diametrically opposed. The inevitable result of allowing these two opinions to stand side-by-side will be confusion in our lower courts. Indeed, the present case itself illustrates the problems that are bound to occur. In the case at bar, this court is asked to explain the meaning and scope of our holding in People v. Wright, 189 Ill. 2d 1 (1999). That opinion, as was noted at the time of its issuance, contained conflicting statements regarding the nature of the post-conviction time limitations set forth in section 122 — 1 of the Act (725 ILCS 5/122 — 1 (West 2000)). See Wright, 189 Ill. 2d at 32-33 (Freeman, C.J., specially concurring, joined by McMorrow, J.). Because of these conflicting statements, as the majority in the case at bar notes, our circuit courts were uncertain how to treat the time limitations and numerous, conflicting appellate court decisions were issued which sought to make sense of Wright. See 202 Ill. 2d at 98. Now, three years later, the majority in the case at bar has cleared up the conflict created by Wright by expressly overruling that decision in part. See 202 Ill. 2d at 99. Although I welcome the clarity brought by the majority’s decision, the reality is that the confusion and expenditure of judicial resources which followed Wright could have been easily avoided if this court had simply spoken with a clearer voice. Unfortunately, the same confusion and the same unnecessary expenditure of time and resources to decipher this court’s meaning are certain to take place following the issuance of the majority opinion in the case at bar.
Justice Thomas attempts to reconcile the positions taken by this court in Collins and the case at bar. See 202 Ill. 2d at 141-43 (Thomas, J., specially concurring, joined by Fitzgerald, J.). Notably absent from Justice Thomas’ analysis, however, is any discussion of the relevant holding of the majority opinion in this case. The principal issue presented in the instant case is whether the circuit court may summarily dismiss a post-conviction petition as frivolous or patently without merit if the petition is untimely filed and if the petition offers no explanation for the tardy filing. Stated otherwise, the question presented is whether an untimely post-conviction petition may be deemed frivolous or patently without merit. The majority opinion answers this question “no.” Why? Because, the majority explains, the definitions of the terms “frivolous” and “patently without merit” do not include any of the Act’s requirements, such as timeliness, which are set forth in sections of the Act outside section 122 — 2.1(a)(2). Instead, according to the majority, a frivolous or meritless petition is defined solely as one which fails to allege a constitutional deprivation. The majority opinion makes this point absolutely clear. The majority states:
“At [the] initial stage of the [post-conviction] proceedings, however, the court should only determine whether the petition alleges constitutional deprivations.” (Emphasis added.) 202 Ill. 2d at 102.
“Only” means only. Thus, under the majority holding in this case, the circuit courts are instructed that, at the summary dismissal stage, they need not and should not consider whether the post-conviction petition is timely filed. Nor should they consider whether affidavits are attached to the petition. Nor should they consider whether any of the requirements set forth in section 122 — 1 or section 122 — 2 have been met. Instead, the circuit courts are instructed that they should only determine whether the petition alleges a constitutional deprivation, that is, whether the petition states the gist of a constitutional claim.
This court’s opinion in Collins, however, stands in stark contrast to the principles regarding summary dismissal adopted by the majority opinion in this case. According to Collins, a frivolous or meritless petition is not defined solely as one which fails to state the gist of a constitutional claim. Instead, under Collins, a frivolous or meritless petition is also defined as one which fails to meet the pleading requirements set forth in section 122 — 2, e.g., the requirement that an affidavit be attached or that an explanation be offered for its absence. Accordingly, under Collins, a post-conviction petition which fails to meet the pleading requirements of section 122 — 2 may be summarily dismissed even if it states the gist of a constitutional claim. Collins makes this point absolutely clear. This court’s opinion in Collins emphasizes that the summary dismissal of the pro se defendant’s petition was affirmed without our deciding whether the petition stated the gist of a constitutional claim. See Collins, 202 Ill. 2d at 69 (distinguishing People v. Edwards, 197 Ill. 2d 239 (2001)).
According to the case at bar, a frivolous or meritless petition means only one thing — a petition which fails to state the gist of a constitutional claim. Thus, in this case, any pleading requirements set forth in the Act are not relevant at the summary dismissal stage. Collins, on the other hand, holds that a frivolous or meritless petition means more than one thing. It also means a petition which fails to meet the pleading requirements of section 122 — 2. The holdings of the two cases are in direct conflict, notwithstanding Justice Thomas’ protestations that they are not.
Also strikingly absent from Justice Thomas’ analysis is any recognition of the dramatically different policy positions taken in Collins and the majority opinion in this case. As noted, Collins takes an extremely strict view of the pleading requirements set forth in section 122 — 2. The failure to include one of these requirements, Collins holds, will result in summary dismissal, even of a pro se petition. Further, no amendment of the pro se petition will be allowed, even to include the pleading requirement which Collins holds indispensable. Section 122 — 2 lists several pleading requirements, one of which is that the petition must “give the date of the rendition of the final judgment complained of.” 725 ILCS 5/122 — 2 (West 2000). Following the logic of Collins, a pro se defendant who fails to include the date of his conviction in his post-conviction petition must have that petition summarily and finally dismissed even if the petition contains a meritorious claim of actual innocence. This is an extraordinarily harsh result, but one which Collins concludes is mandated by the plain language of the Act. See Collins, 202 Ill. 2d at 68 (“[n]othing in the Act” authorizes the circuit court to depart from section 122 — 2’s pleading requirements at the summary dismissal stage).
The majority opinion in this case, on the other hand, offers a liberal construction of the time limitations set forth in section 122 — 1. Under the logic of the majority opinion, a post-conviction petition may be filed years beyond the appropriate statutory deadline without any explanation for the delay, yet the circuit court may not raise the issue of timeliness at summary dismissal. Why? In part because, according to the majority, if the circuit court did so, claims of actual innocence might be lost. See 202 Ill. 2d at 102 (allowing a claim of actual innocence to be lost because of a procedural deficiency in the petition would be contrary to principles of “justice and fairness”).
Surely, a post-conviction petition which is filed years too late and which offers no explanation for the delay is as deficient, or more deficient, than one which fails to list the date of conviction or to explain the absence of an affidavit. Why then are these latter deficiencies treated with such draconian fervor in Collins, while the former are liberally excused in the case at bar? Why is the concern that a meritorious claim of actual innocence might escape judicial review a dispositive factor in the majority’s analysis in the case at bar while that same concern appears nowhere in Collins? No explanation has been offered for the extreme disparity in policy concerns and statutory interpretation between the two cases.
Justice Thomas’ special concurrence in this case addresses none of the issues noted above. Instead, Justice Thomas focuses solely on the notions of substance and procedure and determines that Collins and the majority opinion in this case may be reconciled on the basis of these precepts. According to Justice Thomas, the critical portion of the majority opinion in the case at bar is the conclusion that the circuit court may not consider a post-conviction petition’s procedural compliance at summary dismissal but, instead, must consider only its substantive merits. See 202 Ill. 2d at 102 (“The process at the summary review stage measures a petition’s substantive virtue rather than its procedural compliance”). Justice Thomas concludes that the requirements addressed in Collins, i.e., the obligation to attach an affidavit or explain its absence, are “essential substantive components of a post-conviction petition.” (Emphasis added.) 202 Ill. 2d at 141 (Thomas, J., specially concurring, joined by Fitzgerald, J.). Indeed, according to Justice Thomas all of the requirements contained in section 122 — 2 are “essential” to a post-conviction petition and are “purely substantive.” 202 Ill. 2d at 141-42 (Thomas, J., specially concurring joined by Fitzgerald, J.). Thus, Justice Thomas concludes that there is no conflict between Collins and the case at bar. This is a remarkable conclusion given that Collins itself holds that one of the requirements at issue in that case, the failure to explain why an affidavit is not attached to the post-conviction petition, is nothing more than a nonsubstantive, pleading defect:
“[Election 122 — 2 makes clear that the petitioner who is unable to obtain the necessary ‘affidavits, records, or other evidence’ must at least explain why such evidence is unobtainable. In this case, defendant is asking to be excused not only from section 122 — 2’s evidentialy requirements but also from section 122 — 2’s pleading requirements. Nothing in the Act authorizes such a comprehensive departure.” (Emphases in original.) Collins, 202 Ill. 2d at 68.
According to this court’s opinion in Collins, which was authored by Justice Thomas, the failure to explain why an affidavit is not attached to the petition is a pleading deficiency. It is not a substantive defect. In light of the above, how can it possibly be stated that the failure to explain the absence of an affidavit is an “essential substantive component[ ]” of a post-conviction petition, or that section 122 — 2 is a “purely substantive” provision? 202 Ill. 2d at 141 (Thomas, J., specially concurring, joined by Fitzgerald, J.).
Furthermore, Justice Thomas’ determination that all of the pleading requirements contained in section 122 — 2 are substantive components of a post-conviction petition is directly contradicted by the majority opinion in this case. Here, the majority states:
“At this initial stage of the proceedings, however, the court should only determine whether the petition alleges constitutional deprivations. The process at the summary review stage measures a petition’s substantive virtue rather than its procedural compliance.” 202 Ill. 2d at 102.
Again, according to the majority in this case, at the summary dismissal stage, the circuit court must only consider whether the petition alleges a constitutional deprivation. No other inquiry is permitted. In the view of the majority, whether the petition alleges a constitutional deprivation is the measure of the petition’s “substantive virtue.” 202 Ill. 2d at 102. The majority opinion in this case has thus defined the “substance” of a post-conviction petition as that portion of the petition which attempts to allege a constitutional deprivation, i.e., to state the gist of a constitutional claim.
The affidavit requirement discussed in Collins is not a “substantive” component of a post-conviction petition under the logic of the majority opinion in the case at bar. Whether a petition contains an explanation for the absence of an affidavit simply has no bearing on the question of whether the allegations of the petition state the gist of a constitutional claim. The two cases cannot, therefore, be reconciled under notions of substance and procedure, and Justice Thomas’ assertion to the contrary is in error.
The only authority which Justice Thomas cites in support of his contention that all of the pleading requirements listed in section 122 — 2 are “essential substantive components” of a post-conviction petition is People v. Jennings, 411 Ill. 21 (1952). As I noted in my dissent upon denial of rehearing in Collins, Jennings is inapposite to issues of summary dismissal “because that case predates the addition of section 122 — 2.1(a)(2) to the Act. The petitioner in Jennings was represented by counsel and summary dismissal was not a possibility.” Collins, 202 Ill. 2d at 85 (McMorrow, J., dissenting upon denial of rehearing, joined by Freeman, J.). What relevance Jennings has to deciding whether a post-conviction petition, particularly one filed by a pro se defendant, should be summarily dismissed has never been explained by any member of this court. Furthermore, Justice Thomas’ reliance on Jennings is highly selective. Jennings holds that where the required affidavits are not attached to a post-conviction petition, the circuit court may “grant a further time within which such affidavits may be obtained.” Jennings, 411 Ill. at 26. As noted, this court in Collins ignored this holding and refused to grant the pro se defendant any additional time in which to amend his petition. Evidently then, Jennings is considered binding authority on this court in only certain select respects.
The position taken by Justice Thomas in his special concurrence also leads to questionable results. According to Justice Thomas, all the pleading requirements contained in section 122 — 2 of the Act, including the affidavit requirements, are “substantive components” of a post-conviction petition. 202 Ill. 2d at 141 (Thomas, J., specially concurring, joined by Fitzgerald, J.). On the other hand, the time limitations and pleading requirements contained in section 122 — 1 are procedural. For this reason, Justice Thomas concludes, there is no conflict in holding that the circuit court may not consider whether the petition is timely filed at summary dismissal (a procedural matter) but that it may consider whether the proper affidavits are attached to the petition (a substantive matter). As this court is well aware, section 122 — 1 of the Act contains a “safety valve,” which states that a defendant’s tardiness in filing a post-conviction petition may be excused if the defendant “alleges facts showing that the delay was not due to his or her culpable negligence.” 725 ILCS 5/122 — 1 (West 2000). Under the reasoning advanced by Justice Thomas in his special concurrence at bar, a defendant who fails to plead a lack of culpable negligence has committed a “procedural” error, while the defendant who fails to explain the absence of an affidavit has committed a “substantive” error. No explanation has been offered for this highly questionable outcome.
The circuit court judge who is forced to deal with Collins and the case at bar is presented with a dilemma. Confronted with a post-conviction petition alleging a claim of ineffective assistance of counsel for failing to file an appeal, and without an additional affidavit attached, what should the court do? Should the judge follow Collins’ instructions to summarily dismiss the petition, or should the judge follow the instructions of the majority opinion in this case and “only determine whether the petition alleges constitutional deprivations”? 202 Ill. 2d at 102. Should the judge invoke this court’s holding in Collins that the failure to explain the absence of an affidavit is simply a pleading deficiency, or should the judge give effect to the statement of the author of that opinion which has been offered in this case that the failure to explain the absence is an “essential substantive componente[ ]” of the petition? 202 Ill. 2d at 141 (Thomas, J., specially concurring, joined by Fitzgerald, J.). Should the circuit court follow the holding of the majority in this case, since it is the later issued opinion, or should the court follow Collins, since it specifically rules on the affidavit question and the majority today makes no mention of Collins? Surely the circuit court is entitled to guidance from this court and should not have to attempt to reconcile the irreconcilable.
Moreover, what of the consequences after the circuit court rules? Some circuit judges, relying on Collins, will summarily dismiss post-conviction petitions which lack an additional affidavit. On appeal, members of the defense bar will, with justification, point to our holding in this case and argue that the circuit courts should only be addressing whether the petition states the gist of a constitutional claim and should not be considering the affidavit requirement. Some appellate panels will agree with this argument. Others will not. As a result, conflicting opinions will arise and will continue until this court grants leave to appeal in order to resolve the conflict. Time and judicial resources will be expended needlessly. Nothing will be gained.
The majority opinion in the case at bar holds that the process of summary dismissal addresses only one issue, i.e., whether the petition states the gist of a constitutional claim. Collins holds that the summary dismissal process addresses more than one issue, i.e., whether the petition states the gist of a constitutional claim or whether the petition meets any of the pleading requirements contained in the Act. Whatever one thinks of the merits of these approaches to the process of summary dismissal, it cannot be said that they are compatible or can logically exist at the same time. Either the circuit court’s inquiry at the summary dismissal stage should be limited solely to whether the petition states the gist of constitutional claim or it should not be so limited. The court cannot have it both ways.
The petition for rehearing filed by the defendant in Collins has been pending in this court at the same time this opinion has been under advisement. If the court truly means what it says in the case at bar, and I assume that it does, then in the interests of clarity and guidance, it should have simply granted rehearing in Collins to conform that opinion with the holding set forth here. See Collins, 202 Ill. 2d at 75 (McMorrow, J., dissenting upon denial of rehearing, joined by Freeman, J.). The court’s failure to do so is both unfortunate in a practical sense for the bench and bar and a poor reflection on the wisdom of this court.
IV
Although I disagree with the majority’s failure to discuss the effect of its decision on Collins, I agree with the conclusion the majority reaches on the merits. Addressing the defendants’ arguments in the instant appeal, the majority first examines this court’s decision in People v. Wright, 189 Ill. 2d 1 (1999). In Wright, this court was asked to decide whether the post-conviction time limitations set forth in section 122 — 1 of the Act (725 ILCS 5/122 — 1 (West 2000)) are a jurisdictional prerequisite to maintaining a post-conviction petition and whether a petition’s timeliness was a matter that could be raised for the first time by the State on appeal. A majority of this court answered these questions in the negative. In a separate opinion which I joined, Justice Freeman disagreed with the majority’s treatment of the post-conviction time limitations. Based on the language of the Act, and the importance placed on the time limitations by the legislature, Justice Freeman concluded that time was “ ‘an inherent element of the right’ ” (Fred-man Brothers Furniture Co. v. Department of Revenue, 109 Ill. 2d 202, 209 (1985), quoting Smith v. Toman, 368 Ill. 414, 420 (1938)) to pursue a post-conviction claim and, hence, a jurisdictional prerequisite to maintaining a post-conviction petition. As such, according to Justice Freeman, the State could raise the issue of timeliness on appeal. Justice Freeman noted that treating the time limitations as jurisdictional did not create any unfairness for the post-conviction petitioner because, under this analysis, the petitioner could excuse the tardiness of the petition by alleging that the delay in filing was not due to his “culpable negligence.” See 725 ILCS 5/122 — 1(c) (West 2000). As Justice Freeman explained:
“[A] petitioner whose untimely petition is dismissed for lack of jurisdiction could return to the circuit court and attempt to take advantage of the ‘safety valve’ by filing a new petition which contains the requisite allegations concerning the lack of culpable negligence. Such a successive petition would not be barred by the doctrine of res judicata because a dismissal for lack of jurisdiction does not constitute an adjudication on the merits. Under this approach, the action would proceed in a way that is consistent with the language of the Act (the petitioner must allege and establish his or her lack of culpable negligence for the delay as required under the Act), and the State has not been allowed to ‘trump’ the truly nonculpably negligent petitioner from the opportunity to seek collateral review under the Act.” Wright, 189 Ill. 2d at 30 (Freeman, C.J., specially concurring, joined by McMorrow, J.).
The majority in Wright, however, held that, under the plain language of the Act, time was not an integral part of post-conviction relief and that the time limitations were best viewed as a statute of limitations. Wright, 189 Ill. 2d at 8. The court noted that, like other statues of limitations, the time limitations in the Act were an affirmative defense that were subject to waiver by the State. Wright, 189 Ill. 2d at 10-11. Thus, if the State failed to raise the issue of timeliness in the circuit court, it could not raise the issue for the first time on appeal. Wright, 189 Ill. 2d at 10-11. In sum, the court concluded that the post-conviction time limitations were an ordinary statute of limitations that should not “be treated differently [than] any other.” Wright, 189 Ill. 2d at 12.
After reaching the above conclusions, however, the court in Wright went on to state that it was “not limiting the trial court’s ability, during the court’s initial review of noncapital petitions [under section 122— 2.1(a)(2) of the Act], to dismiss the petition as untimely.” Wright, 189 Ill. 2d at 11. Moreover, Wright expressly held that the circuit court had a “duty,” imposed upon the court by section 122 — 2.1(a)(2), to dismiss untimely post-conviction petitions during the first stage of review. Wright, 189 Ill. 2d at 11-12. As was explained at the time Wright was decided, these latter statements are at odds with the Wright court’s holding that the post-conviction time limits are an ordinary statute of limitations, since a statute of limitations defense is traditionally treated as an affirmative defense that must be raised in responsive pleadings. See Wright, 189 Ill. 2d at 32-33 (Freeman, C.J., specially concurring, joined by McMorrow, J.).
In the instant case, the majority acknowledges that this court’s opinion in Wright contains conflicting statements regarding the nature of the post-conviction time limitations and that these statements have generated considerable confusion in our appellate court. See 202 Ill. 2d at 98-99. The majority today resolves the ambiguity in Wright by overruling that portion of the Wright opinion which holds that the circuit court may sua sponte dismiss an untimely petition. I agree with this result.
As Justice Freeman explained at length in his separate opinion in Wright, the clear and overriding holding of the Wright majority opinion is that the time limitations in the Act are “an affirmative matter to be raised by the State, and the State alone.” (Emphasis added.) Wright, 189 Ill. 2d at 33 (Freeman, C.J., specially concurring, joined by McMorrow, J.). As Justice Freeman stated, “I read [the majority opinion in Wright] as holding that section 122 — 1 is to be treated as an ordinary statute of limitation, i.e., an affirmative defense, and not as a jurisdictional prerequisite. Therefore, in noncapital cases, the untimely petition that lacks culpable negligence allegations [and which is nonfrivolous] must be docketed in order to allow the State to put the culpable negligence matter at issue as an affirmative defense.” Wright, 189 Ill. 2d at 32 (Freeman, C.J., specially concurring, joined by McMorrow, J.).
The Wright court’s additional statements that the circuit court could raise the issues of timeliness and culpable negligence sua sponte are irreconcilable with the major holding of that case. See Wright, 189 Ill. 2d at 32-33 (Freeman, C.J., specially concurring, joined by McMorrow, J.) Although I joined Justice Freeman in dissenting from the Wright court’s principal holding that issues pertaining to timeliness must be raised by the State, I accept the Wright court’s holding as the law. Accordingly, because the fundamental holding of Wright is that the issues of timeliness and culpable negligence are an affirmative defense that can be raised only by the State, and because any rule which allows the Circuit court to raise these issues sua sponte is directly at odds with that holding, I agree that the portion of Wright which authorizes the circuit courts to sua sponte dismiss untimely petitions should be overruled. Wright holds that the post-conviction time limitations are an ordinary statute of limitations that should not “be treated differently [than] any other.” Wright, 189 Ill. 2d at 12. Wright dictates, therefore, that issues of timeliness may not be raised sua sponte by the circuit court at the summary dismissal stage of post-conviction proceedings.
In addition to the above, I note that by holding that the circuit court should not concern itself with matters of timeliness on first stage review, the majority in the case at bar has removed an issue from the circuit court’s consideration during this stage, thereby reducing the burden placed on the circuit court. In this way, the rule adopted by the majority comports with this court’s understanding that the first stage of post-conviction review, set forth in section 122 — 2.1(a)(2) of the Act, is intended to be “a simplified procedure” (People v. Rivera, 198 Ill. 2d 364, 372 (2001)). For this reason, and for the reasons previously discussed, I concur in the majority’s holding that a circuit court may not sua sponte raise the timeliness of a post-conviction petition during the first stage of post-conviction review.
JUSTICE FREEMAN joins in this special concurrence.
My criticism is not directed to Justice Kilbride. Because Justice Kilbride dissented in Collins, his positions in Collins and the case at bar are not inconsistent.