People v. Perkins

Docket No. 103693.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
JAHMAL PERKINS, Appellee.

Opinion filed November 29, 2007.–Modified on denial of rehearing
May 27, 2008.

JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Fitzgerald, Garman, and
Karmeier concurred in the judgment and opinion.
Justice Freeman dissented, with opinion, upon denial of rehearing,
joined by Justice Burke.

OPINION

The circuit court of De Kalb County dismissed as untimely
Jahmal Perkins’ postconviction petition. The appellate court vacated
the dismissal of the petition and remanded for further proceedings,
holding that postconviction counsel failed to comply with Supreme
Court Rule 651(c). 367 Ill. App. 3d 895, 906-08. Rule 651(c)
mandates, in pertinent part, amendments to pro se postconviction
petitions that are “necessary for an adequate presentation of
petitioner’s contentions.” 134 Ill. 2d R. 651(c). We allowed the
State’s petition for leave to appeal. 210 Ill. 2d R. 315(a).
 In this appeal, we consider whether Supreme Court Rule 651(c)
requires postconviction counsel to allege any facts necessary to
excuse a late filing. We hold that Rule 651(c) requires amendment of
an untimely petition to allege any available facts showing the delay
in filing was not due to the petitioner’s culpable negligence in an
effort to excuse the untimely filing. We conclude that appointed
counsel complied with Rule 651(c) in this case. Accordingly, we
reverse the judgment of the appellate court and affirm the circuit
court’s judgment dismissing the postconviction petition as untimely.

I. BACKGROUND
Following a jury trial, petitioner was convicted of armed violence,
home invasion, residential burglary, and aggravated battery. 720 ILCS
5/33A–2, 12–11(a)(1), 19–3, 12–4(b)(1) (West 1996). The trial court
sentenced him to concurrent terms of 24 years’ imprisonment on the
armed violence, home invasion, and residential burglary convictions,
and 5 years’ imprisonment on the aggravated battery conviction.
The appellate court vacated petitioner’s convictions of armed
violence and residential burglary based on a violation of the
proportionate penalties clause of the Illinois Constitution (Ill. Const.
1970, art. I, §11). The appellate court directed the circuit court clerk
to amend the mittimus to reflect a single sentence of 24 years’
imprisonment for home invasion and a concurrent 5-year sentence for
the aggravated battery conviction. People v. Perkins, No. 2–98–1294
(2001) (unpublished order under Supreme Court Rule 23).
Petitioner subsequently mailed a postconviction petition and a
“Petition to Vacate the Void Sentencing Judgment” to the trial court.
In his postconviction petition, petitioner alleged imposition of a term
of mandatory supervised release was unconstitutional with his
determinate sentence. The petition to vacate alleged that petitioner’s
attorney had filed “several crucial motions” and a postconviction
petition without notifying petitioner and that this court had found
sentencing error in a similar case.
The trial court docketed the petitions for further proceedings and
appointed a public defender to represent petitioner, treating the two
pleadings as one petition filed under the Post-Conviction Hearing Act
(Act) (725 ILCS 5/122–1 et seq. (West 2002)). At a status hearing,

-2-
appointed counsel stated that he had met with petitioner and that any
amendment to the petition would be filed within three weeks. The
State responded that it expected to file a motion to dismiss after
reviewing petitioner’s amended petition. Petitioner’s attorney
subsequently filed a certificate in accordance with Supreme Court
Rule 651(c) (134 Ill. 2d R. 651(c)), confirming his in-person
consultation with petitioner to ascertain petitioner’s contentions of
deprivation of constitutional rights, examination of the record of
proceedings, and his conclusion that no amendment to the pro se
petition was necessary for an adequate presentation of petitioner’s
contentions.
The State moved to dismiss the petition as untimely. The State
asserted that the petition was filed outside the time limitation period
provided in the Act and that petitioner had failed to allege facts
establishing his lack of culpable negligence in the late filing.
At the hearing on the motion to dismiss, petitioner’s attorney
recited the two issues raised in the petition, emphasizing that
petitioner was entitled to a new sentencing hearing because the trial
court considered convictions that were later overturned on appeal.
The State responded that the petition was untimely and petitioner had
not alleged his lack of culpable negligence in the late filing. The
State, therefore, argued that its motion to dismiss should be granted.
Petitioner’s counsel replied that the appellate court changed
petitioner’s sentence when it vacated two of his convictions on direct
appeal and ordered amendment of the mittimus. Counsel argued that
the appellate court’s decision restarted the time for filing a
postconviction petition. Based on the new beginning date for the
limitation period, petitioner had until June 20, 2004, to file his
petition. Thus, the petition was timely filed.
Counsel also argued that petitioner could not have raised the trial
court’s improper consideration of the vacated convictions earlier
because that issue did not exist until the appellate court vacated the
convictions. Further, counsel argued that the limitations period for
filing a postconviction petition was flexible and the court could
consider equitable factors in determining whether the petition was
timely. Counsel urged the trial court to consider “the fairness issue,
that being whether or not the court took into consideration improperly
*** two felony convictions at the time of sentencing which were later

-3-
vacated.” Finally, counsel argued that the court should not dismiss the
petition as untimely because “it was not unreasonable or
unconscionable.”
The trial court ruled that the time for filing the postconviction
petition did not restart with the appellate court’s decision vacating
petitioner’s convictions because that decision was not a resentencing
or a new date of conviction. The trial court found that the petition was
not timely filed and granted the State’s motion to dismiss.
Petitioner appealed, contending his attorney failed to provide
reasonable assistance. Petitioner asserted that counsel’s arguments
showed he did not understand the time limitations in the Act. As a
result of his unfamiliarity with the Act, counsel failed to amend the
petition adequately to allege petitioner’s lack of culpable negligence
in filing late as required to overcome the time bar.
The appellate court noted that the parties agreed the petition was
not timely filed. 367 Ill. App. 3d at 897. The appellate court held that,
if a pro se postconviction petition is filed beyond the statutory
deadline, under Supreme Court Rule 651(c), appointed counsel must
make a reasonable attempt to determine whether a proper excuse
exists for the late filing. 367 Ill. App. 3d at 900. Counsel must at least
review the record and ask the petitioner about any possible excuse. If
an excuse for the late filing is apparent, counsel must ensure it is
adequately presented to the court. 367 Ill. App. 3d at 900.
The appellate court held that counsel’s arguments in response to
the State’s motion to dismiss were legally without merit. According
to the appellate court, counsel’s arguments “unambiguously
betray[ed] a lack of familiarity with the applicable law.” 367 Ill. App.
3d at 907. Postconviction counsel violated Rule 651(c) because the
record demonstrated he did not understand the filing deadline in the
Act or the exception to the timeliness bar for lack of culpable
negligence in the late filing. 367 Ill. App. 3d at 906-08. The appellate
court, therefore, vacated the dismissal of the petition and remanded
the matter to the trial court for further proceedings. 367 Ill. App. 3d
at 908.
We allowed the State’s petition for leave to appeal. 210 Ill. 2d R.
315(a).

-4-
 II. ANALYSIS
This appeal requires us to construe the scope of Rule 651(c) and
to determine whether counsel complied with that rule. The State
argues that the appellate court erred in holding petitioner’s attorney
violated Supreme Court Rule 651(c). The State contends that the
plain language of Rule 651(c) does not require counsel to amend the
pro se petition to allege a lack of culpable negligence or to go outside
the record and pleadings to find evidence to excuse the petitioner’s
untimely filing.
Petitioner responds that Rule 651(c) requires postconviction
counsel to make any amendments necessary for an adequate
presentation of the petitioner’s claims. Under the Act, a petitioner’s
claims cannot be presented if they are untimely and the petitioner has
not alleged facts showing the delay in filing was not due to his
culpable negligence. Therefore, according to petitioner, if timeliness
is raised as an issue, appointed counsel must allege facts to show a
lack of culpable negligence to present adequately the petitioner’s
claims under Rule 651(c). We will address the construction and
application of Rule 651(c) in turn.

A. Construction of Supreme Court Rule 651(c)
When interpreting our supreme court rules, we apply the same
principles of construction applicable to statutes. People v. Roberts,
214 Ill. 2d 106, 116 (2005), citing In re Estate of Rennick, 181 Ill. 2d
395, 404 (1998). Our primary goal is to ascertain and give effect to
the intent of the drafters. In re Estate of Rennick, 181 Ill. 2d at 404-
05. The most reliable indicator of the drafters’ intent is the language
used, given its plain and ordinary meaning. In re Estate of Rennick,
181 Ill. 2d at 405. We review de novo the proper interpretation of our
supreme court rules. People v. Suarez, 224 Ill. 2d 37, 41-42 (2007).
In construing Rule 651(c), we first review how the rule fits into
the postconviction framework. At the first stage of postconviction
proceedings, the circuit court reviews the petition and may summarily
dismiss it if the court determines it is “frivolous or is patently without
merit.” 725 ILCS 5/122–2.1(a)(2) (West 2002). The process at this
stage “measures a petition’s substantive virtue rather than its
procedural compliance.” People v. Boclair, 202 Ill. 2d 89, 102 (2002).

-5-
The focus is on whether the petition presents “ ‘the gist of a
constitutional claim.’ ” Boclair, 202 Ill. 2d at 99-100, quoting People
v. Gaultney, 174 Ill. 2d 410, 418 (1996). The petition may not be
dismissed as untimely at the first stage of the proceedings. Boclair,
202 Ill. 2d at 99. If the petition is not dismissed at the first stage, the
circuit court must docket it for further consideration. 725 ILCS
5/122–2.1(b) (West 2002).
At the second stage of the proceedings, an indigent petitioner is
entitled to appointed counsel. 725 ILCS 5/122–4 (West 2002). The
right to counsel in postconviction proceedings is wholly statutory.
People v. Lander, 215 Ill. 2d 577, 583 (2005). Therefore, a petitioner
is entitled only to the level of assistance required by the Act. Lander,
215 Ill. 2d at 583. The Act provides for a “reasonable” level of
assistance. People v. Pendleton, 223 Ill. 2d 458, 472 (2006). To
assure the reasonable assistance required by the Act, Supreme Court
Rule 651(c) imposes specific duties on postconviction counsel.
People v. Turner, 187 Ill. 2d 406, 410 (1999). Under Rule 651(c),
counsel must: (1) consult with the petitioner either by mail or in
person to ascertain the contentions of deprivation of constitutional
rights; (2) examine the record of the trial court proceedings; and (3)
make any amendments to the pro se petition necessary for an
adequate presentation of the petitioner’s contentions. 134 Ill. 2d R.
651(c).
If a postconviction petition is not filed within the limitations
period, the Act requires the petitioner to allege facts showing the
delay was not due to his or her culpable negligence. 725 ILCS
5/122–1(c) (West 2002). Absent allegations of lack of culpable
negligence, the Act directs the trial court to dismiss the petition as
untimely at the second stage upon the State’s motion. See 725 ILCS
5/122–1(c) (West 2002) (no postconviction proceedings shall be
commenced outside the time limitations period in the Act “unless the
petitioner alleges facts showing that the delay was not due to his or
her culpable negligence”); Boclair, 202 Ill. 2d at 101 (time limitation
in the Act is an affirmative defense that may be raised, waived, or
forfeited at the second stage by the State). The State may move to
dismiss after petitioner’s counsel has made any necessary
amendments. 725 ILCS 5/122–5 (West 2002).

-6-
 From the foregoing discussion, it is apparent that when a petition
is not timely filed under the Act, to have any chance to present a
petitioner’s constitutional claims at the second stage of proceedings
it is necessary either to: (1) obtain the State’s waiver or forfeiture of
the untimeliness defense; or (2) attempt to overcome the time bar by
alleging lack of culpable negligence in the late filing. Obviously, a
petitioner cannot present any constitutional claim if the petition is
dismissed on the State’s motion as untimely. Therefore, without the
State’s waiver or forfeiture, it is necessary to allege lack of culpable
negligence to be able to present a petitioner’s constitutional claims.
Accordingly, we hold that the plain language of Rule 651(c),
requiring amendments “necessary for an adequate presentation of
petitioner’s contentions,” includes alleging any facts that may
establish a lack of culpable negligence in the late filing.
We note that our construction of Rule 651(c) is consistent with
the purpose of the rule. We have repeatedly held that the purpose of
Rule 651(c) is to ensure that counsel shapes the petitioner’s claims
into proper legal form and presents those claims to the court. People
v. Pinkonsly, 207 Ill. 2d 555, 568 (2003), quoting People v. Owens,
139 Ill. 2d 351, 364-65 (1990). Rule 651(c) requires a showing that
counsel “took the necessary steps to secure adequate representation
of petitioner’s claims.” People v. Szabo, 144 Ill. 2d 525, 532 (1991),
citing Owens, 139 Ill. 2d at 359. An adequate or proper presentation
of a petitioner’s substantive claims necessarily includes attempting to
overcome procedural bars, including timeliness, that will result in
dismissal of a petition if not rebutted.
Further, this construction is consistent with our prior holdings
interpreting Rule 651(c). In particular, this court has held that
postconviction counsel has a duty under Rule 651(c) to meet certain
procedural requirements to present a constitutional claim adequately
under the Act. See Turner, 187 Ill. 2d at 412-14 (Rule 651(c) requires
counsel to amend the pro se petition to allege ineffective assistance
of appellate counsel to avoid the procedural bar of waiver); People v.
Johnson, 154 Ill. 2d 227, 247 (1993) (counsel is obligated under Rule
651(c) to attempt to obtain and submit affidavits from witnesses
identified in the pro se postconviction petition). Additionally, Rule
651(c) is violated when postconviction counsel either fails to file a
brief on appeal (People v. Lyles, 217 Ill. 2d 210, 218 (2005)), or

-7-
submits a brief that is “so fundamentally deficient that it precludes
review” (People v. Johnson, 192 Ill. 2d 202, 207 (2000)). Similarly,
we hold here that Rule 651(c)’s mandate of any amendments
necessary for an adequate presentation of a petitioner’s contentions
requires counsel to allege available facts on the lack of culpable
negligence to avoid the procedural bar of untimeliness.
Nonetheless, the State argues that this court’s decision in Lander
“strongly suggests that counsel’s duties under Rule 651(c) are
independent of the question of timeliness.” In Lander, the petitioner
filed a pro se postconviction petition accompanied by a motion
seeking leave to file a late petition. Lander, 215 Ill. 2d at 580. In his
motion, the petitioner alleged he had received advice about the filing
deadline for his petition from several individuals at the prison,
including a law clerk, “jailhouse lawyers,” and a prison librarian.
Lander, 215 Ill. 2d at 580-81. The trial court found petitioner’s pro
se petition was not frivolous or patently without merit and appointed
two attorneys to represent him. Petitioner’s attorneys filed an
amended motion restating more specifically and with greater detail
the allegations in petitioner’s motion for leave to file a late petition.
Lander, 215 Ill. 2d at 581. Counsel did not, however, file an amended
postconviction petition. Lander, 215 Ill. 2d at 582.
The State moved to dismiss the petition as untimely. The trial
court found that the petition was not timely and petitioner had failed
to show the delay in filing was not due to his culpable negligence.
Accordingly, the trial court granted the State’s motion to dismiss the
postconviction petition as untimely. Lander, 215 Ill. 2d at 582.
On appeal, the petitioner contended that his attorneys failed to
comply with Rule 651(c) in presenting his constitutional claims. The
State argued that petitioner’s attorneys had no obligation to comply
with Rule 651(c) in presenting petitioner’s substantive constitutional
claims until the time bar was overcome and they were granted leave
to file a late petition. Lander, 215 Ill. 2d at 583.
This court held that petitioner’s attorneys were required to comply
with Rule 651(c) despite the untimeliness of the pro se petition.
Lander, 215 Ill. 2d at 584. The holding in Lander was based on our
decision in Boclair, establishing that the time requirement for filing
a postconviction petition is an affirmative defense that may be raised,
waived, or forfeited by the State at the second stage of the

-8-
proceedings. Lander, 215 Ill. 2d at 584, citing Boclair, 202 Ill. 2d at
101. We noted that a prosecutor would have no reason to waive the
defense of untimeliness if a meritorious constitutional claim is not
presented in the petition. Lander, 215 Ill. 2d at 584-85. We held that
postconviction counsel must submit the petitioner’s constitutional
claims in compliance with Rule 651(c). The prosecutor may then
decide whether those claims are sufficient to warrant the State’s
waiver of the affirmative defense of untimeliness. Lander, 215 Ill. 2d
at 585. We remanded the matter to the circuit court for further
proceedings because the record did not establish compliance with
Rule 651(c). Lander, 215 Ill. 2d at 585.
We further held that the facts alleged in the petitioner’s pleadings
were insufficient to establish a lack of culpable negligence in the late
filing. Lander, 215 Ill. 2d at 589. We held that it was petitioner’s sole
responsibility to know the time requirements of the Act and petitioner
was not justified in entrusting that responsibility to “jailhouse
lawyers,” a prison law clerk, and a prison librarian. Petitioner did not
show that those individuals had any specialized knowledge in
postconviction matters. Lander, 215 Ill. 2d at 588-89. We
distinguished People v. Rissley, 206 Ill. 2d 403 (2003), where this
court found the petitioner was reasonable in relying on the advice of
his direct appeal counsel because he had no reason to question the
advice from counsel on the Act’s filing deadline. Lander, 215 Ill. 2d
at 587-88. We cautioned that each case must be examined on its own
facts in making the culpable negligence determination. Lander, 215
Ill. 2d at 589.
Contrary to the State’s argument, we find that Lander is
inapplicable to the issues raised in this appeal. In Lander, the issue
was whether Rule 651(c) required counsel to present the petitioner’s
constitutional claims adequately despite the untimeliness of the pro
se petition. Lander did not involve the issue we address here on the
requirements of the rule and timeliness of a petition. Indeed, the
petitioner’s attorneys in Lander amended the pleadings in an effort to
demonstrate the petitioner’s lack of culpable negligence in his late
filing, apparently in recognition of their duties under Rule 651(c). Our
conclusion in Lander that Rule 651(c) requires amendment of the
petition to present constitutional claims does not preclude or impact
our finding here that the plain language of the rule also requires

-9-
amending a petition to allege available facts showing a lack of
culpable negligence to overcome the time bar in the Act. Both of
those actions are within the plain language of Rule 651(c), requiring
amendments “necessary for an adequate presentation of petitioner’s
contentions.” 134 Ill. 2d R. 651(c).
In Lander, we also indicated it is the petitioner’s sole
responsibility to know the time requirements for filing a pro se
petition. Thus, in this case, petitioner was responsible for knowing the
time limitation for filing his pro se petition. However, after counsel
was appointed at the second stage, petitioner was no longer solely
responsible for presenting his petition to the court. At that point,
counsel became responsible for assisting petitioner with the
presentation of his case. Therefore, after the appointment, counsel
was responsible for presenting the reasons for the late filing in an
effort to establish lack of culpable negligence and avoid dismissal of
the petition as untimely. In sum, we find that Lander is inapplicable
here because it does not address the issues raised on the requirements
of Rule 651(c) and the timeliness of a postconviction petition.
The State also argues that the petitioner is responsible for
including in the pro se petition any allegations that show a lack of
culpable negligence in a late filing. As previously noted, however, the
timeliness of a pro se postconviction petition may not be considered
at the first stage of the proceedings. Boclair, 202 Ill. 2d at 99. The
process at the first stage only “measures a petition’s substantive virtue
rather than its procedural compliance.” Boclair, 202 Ill. 2d at 102.
Thus, a pro se petitioner need not include any allegations on
timeliness or an excuse for a delay in filing to advance past the first
stage. Any allegations on those matters are irrelevant at the first stage
of the proceedings.
If the State decides to file a motion to dismiss, the timeliness of
a postconviction petition is considered at the second stage of the
proceedings. Boclair, 202 Ill. 2d at 102. Thus, timeliness is an issue
considered after appointment of counsel. The timeliness of the
petition and any excuse for a late filing are matters that counsel must
provide assistance on at the second stage. That assistance includes
amending the petition to allege any available facts showing a delay in
filing was not due to the petitioner’s culpable negligence as required
by the Act. See 725 ILCS 5/122–1(c) (West 2002).

-10-
 The State further argues that counsel’s duties under Rule 651(c)
do not include amending the pro se petition to “anticipatorily rebut”
a motion to dismiss based on untimeliness when it may never be filed
by the State. We note that in some cases counsel will be able to
recognize the untimeliness of a postconviction petition on its face. In
those cases, counsel may easily include allegations on any excuse for
the delay in filing while making necessary amendments to the
petition. Then, if the State decides to file a motion to dismiss on
untimeliness, the court may consider the allegations already alleged
in the petition in deciding that motion.
Even if counsel does not “anticipatorily rebut” the State’s motion
by including in the initial amended petition an excuse for the delay in
filing, counsel may seek leave to amend the petition to include those
allegations after the State has moved to dismiss. The Act does not
limit the right to amend the petition. See 725 ILCS 5/122–5 (West
2002). Rather, it grants the trial court discretion to allow additional
amendments. 725 ILCS 5/122–5 (West 2002).
Rule 651(c) also states that counsel may make “any” necessary
amendments to the petition. 134 Ill. 2d R. 651(c). Thus, counsel may
seek to file a second amended petition, if necessary, to respond to the
State’s motion to dismiss a petition as untimely. Our construction of
Rule 651(c), therefore, will not necessarily require anticipatory
rebuttal of a motion to dismiss by the State.
On the other hand, the State’s construction of the rule requiring
petitioners to include allegations on lack of culpable negligence in the
pro se petition would always result in anticipatory rebuttal of the
State’s motion to dismiss. In those circumstances, the allegations on
any excuse for a delay in filing would be required at the first stage of
the proceedings, before the State could ever move to dismiss based on
untimeliness. Thus, it would require presentation of those facts at the
first stage of proceedings when they are irrelevant to the trial court’s
determination based on the substance of the petition.
In sum, consistent with the plain language of Rule 651(c), its
purpose, and our prior decisions, we hold that Rule 651(c) requires
counsel to amend an untimely pro se petition to allege any available
facts necessary to establish that the delay was not due to the
petitioner’s culpable negligence. In discharging this duty, counsel
must inquire of the petitioner whether there is any excuse for the

-11-
delay in filing. As a practical matter, any potential excuse for the late
filing will often be discovered by speaking with the petitioner.
Counsel must also allege any excuse for the delay in filing apparent
from the pleadings and the portions of the record counsel must review
to present petitioner’s claims. See People v. Davis, 156 Ill. 2d 149,
164 (1993) (under Rule 651(c), counsel is required to review those
portions of the record necessary to present and support the claims
raised by the petitioner in the pro se petition).

B. Application of Supreme Court Rule 651(c)
Having concluded that amendment of an untimely pro se
postconviction petition to allege lack of culpable negligence is within
the scope of Rule 651(c), we must determine whether counsel
complied with that rule in this case. Compliance with Rule 651(c) is
mandatory (People v. Munson, 206 Ill. 2d 104, 137 (2002)), and may
be shown by a certificate filed by the petitioner’s attorney (134 Ill. 2d
R. 651(c)). A “certificate” is generally defined as “[a] written
assurance, or official representation, that some act has or has not been
done, or some event occurred, or some legal formality has been
complied with.” Black’s Law Dictionary 225 (6th ed. 1990).
Therefore, when an attorney files a certificate under Rule 651(c), the
attorney is officially representing to the court that the duties listed in
the certificate have been fulfilled. Here, appointed counsel filed a
certificate of compliance with Rule 651(c), assuring the court that he
complied with each of the requirements of that rule. Counsel
specifically asserted that no amendments were necessary for an
adequate presentation of petitioner’s contentions.
The appellate court held, nonetheless, that counsel violated Rule
651(c) because his arguments in response to the State’s motion to
dismiss were legally without merit. 367 Ill. App. 3d at 906-07. The
appellate court held that counsel’s arguments could be interpreted
only as a sign of his unfamiliarity with the timeliness requirements of
the Act. 367 Ill. App. 3d at 907-08.
In our view, the record does not establish that counsel was
unfamiliar with the Act’s timeliness requirements. Counsel is
presumed to know the law. See People v. Holman, 164 Ill. 2d 356,
369 (1995) (courts recognize a strong presumption that attorneys are

-12-
competent). The State recited the timeliness requirements of the Act
in its motion to dismiss, thus notifying petitioner’s counsel of those
standards. The State reasserted the requirements at the hearing on the
motion, arguing that the petition was not timely filed and petitioner
had not alleged facts establishing his lack of culpable negligence in
the late filing. It is difficult to believe counsel was unaware of the
applicable legal standards given the State’s repeated assertions.
Further, counsel in effect argued the delay was not due to
petitioner’s culpable negligence. Specifically, counsel asserted that
petitioner’s claim could not have been raised earlier because it only
arose when the appellate court vacated two of his convictions.
Petitioner acknowledges that appointed counsel argued the sentencing
claims “were not ripe until the appellate court’s Rule 23 order was
entered, and that this excused his late filing.” This argument was
directed at whether the delay in filing was due to petitioner’s culpable
negligence.
Counsel’s argument may not have been particularly compelling
and his other arguments may have been legally without merit. Those
factors, however, do not demonstrate that there was some other
excuse counsel could have raised for the delay in filing. There is
nothing in the record to indicate that petitioner had any other excuse
showing the delay in filing was not due to his culpable negligence.
We cannot assume there was some other excuse counsel failed to
raise for the delay in filing. Counsel’s argument was apparently the
best option available based on the facts.
We note that petitioner has filed a petition for rehearing along
with an affidavit adding factual allegations on his excuse for the delay
in filing. This court has long held that affidavits not filed in the trial
court cannot be considered part of the record on appeal. Kazubowski
v. Kazubowski, 45 Ill. 2d 405, 415 (1970) (citing Joyce v. Harding,
208 Ill. 77 (1904), Plotke v. Chicago Title & Trust Co., 175 Ill. 234,
236 (1898), and Pardridge v. Morgenthau, 157 Ill. 395, 399 (1895)).
Petitioner did not file his affidavit in the trial court. In fact, he did not
even file the affidavit while the appeal was being considered in this
court, but waited to submit it with his petition for rehearing. Contrary
to the dissent, consideration of petitioner’s affidavit is not supported
by Johnson, 154 Ill. 2d 227, 243 (1993). In Johnson, the petitioner’s
attorney filed an affidavit on appeal to this court rather than with a

-13-
petition for rehearing. Johnson, 154 Ill. 2d at 243. The petitioner’s
attorney essentially admitted in the affidavit that he failed to comply
with Rule 651(c). Johnson, 154 Ill. 2d at 248. The submission of the
affidavit appears to have been unchallenged because this court
accepted it without any discussion or citation to authority. Johnson,
154 Ill. 2d at 243-49. We conclude that Johnson is distinguishable
from this case. Thus, in accordance with the established rules of
appellate procedure, we decline to consider petitioner’s affidavit
submitted with his petition for rehearing.
We do not intend to suggest that an attorney’s Rule 651(c)
certificate is conclusive of compliance and can never be rebutted. In
this case, however, nothing in the record on appeal contradicts
counsel’s certificate asserting that there were no amendments
necessary for adequate presentation of petitioner’s claims.
Accordingly, we must give effect to counsel’s official representation
that he complied with Rule 651(c). Based on the facts of this case, we
conclude that counsel fulfilled his duties under Rule 651(c).

III. CONCLUSION
We hold that counsel is required under Supreme Court Rule
651(c) to amend an untimely pro se postconviction petition to allege
any available facts that may establish the petitioner’s lack of culpable
negligence for the delay in filing. We conclude that counsel here
complied with Rule 651(c). The appellate court erred in finding that
counsel failed to comply with the rule. Accordingly, we reverse the
appellate court’s judgment and affirm the judgment of the circuit
court dismissing the postconviction petition as untimely.

Appellate court judgment reversed;
circuit court judgment affirmed.

Dissent Upon Denial of Rehearing

JUSTICE FREEMAN, dissenting:
I would grant rehearing in this case in order to provide additional
guidance to our lower courts with respect to Rule 651(c) compliance.

-14-
 Our opinion in this case holds that Rule 651(c)’s mandate of any
amendments necessary for an adequate presentation of a petitioner’s
contentions “requires counsel to allege available facts on the lack of
culpable negligence to avoid the procedural bar of untimeliness.” Slip
op. at 7-8. Relying on People v. Boclair, the opinion notes that the
State, when it files a motion to dismiss, has a choice regarding
whether to assert the affirmative defense of timeliness. Slip op. at 10,
citing People v. Boclair, 202 Ill. 2d 89, 102 (2002). Given the State’s
choice in this matter, our opinion necessarily recognizes that “[t]he
timeliness of the petition and any excuse for a late filing are matters
that counsel must provide assistance on at the second stage. That
assistance includes amending the petition to allege any available facts
showing a delay in filing was not due to the petitioner’s culpable
negligence as required by the Act.” Slip op. at 10.
In his petition for rehearing, Perkins argues that because his pro
se petition did not address timeliness, his appointed counsel could
have either “anticipatorily rebut[ted]” the State’s motion in the initial
amended petition by including an excuse for delay in the initial
amended petition or “[sought] leave to amend the petition to include
those allegations after the State ha[d] moved to dismiss.” Slip op. at
11. Perkins points out that the Rule 651(c) certificate that this court
relied upon was filed by his attorney on August 25, 2003, some two
months before the State alleged untimeliness in its motion to dismiss.
Perkins states that his appointed counsel did not “anticipatorily rebut”
any timeliness challenge in the amended petition nor did counsel seek
leave to amend the petition to include such allegations after the State
moved to dismiss on timeliness grounds. He notes that after the
State’s motion was filed, no new certificate was filed by his attorney,
who, according to our opinion, “must provide assistance on [this
matter] at the second stage [and] [t]hat assistance includes amending
the petition to allege any available facts showing a delay in filing was
not due to the petitioner’s culpable negligence as required by the
Act.” Slip op. at 10. Perkins therefore suggests that, on this record,
this court cannot say that counsel complied with Rule 651(c) with
respect to the timeliness question. Moreover, the petition for
rehearing contains an affidavit from Perkins in which he states that he
told his appointed postconviction counsel that his appointed appellate
attorney had given him erroneous advice about the time periods for

-15-
filing a postconviction action. See People v. Johnson, 154 Ill. 2d 227,
243 (1993) (allowing consideration of an affidavit filed for the first
time on appeal in the supreme court in determining Rule 651(c)
compliance). Although this explanation may constitute a viable claim
of lack of culpable negligence (see People v. Rissley, 206 Ill. 2d 403
(2003) (holding that the inaccurate legal advice of appellate counsel
shows a lack of culpable negligence on the part of a late-filing,
postconviction petitioner)), it was never raised by appointed counsel
in response to the State’s motion to dismiss.
Under these circumstances, I do not believe that this court can
“give effect to counsel’s official representation that he complied with
Rule 651(c)” with respect to the timeliness issue. And in this respect,
Perkins’ petition for rehearing raises an important general point that
I feel is being overlooked. In order to establish compliance with the
requirements of Rule 651(c), postconviction counsel must file a
certificate of compliance indicating that he has consulted with his
client, examined the record, and made any amendments to the pro se
petition necessary for an adequate presentation of the contentions.
Ordinarily, the certificate is filed at the same time the postconviction
petition is filed. This presents a problem, however, when, as in this
case, the issue of timeliness is raised by the State in a motion to
dismiss filed after the certificate has been filed. What happens in such
circumstances? Our opinion is unclear as to this point and as a result
may cause confusion for lower courts in its application. By not
addressing this matter today, this court will undoubtedly be called
upon to clarify its holding in a future case. I therefore would grant
rehearing and address the matter now.

JUSTICE BURKE joins in this dissent.

-16-