People v. Johnson

2015 IL App (2d) 131029
No. 2-13-1029
Opinion filed December 16, 2015
____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
v. ) No. 03-CF-2188
)
ALLEN R. JOHNSON, ) Honorable
) Randy Wilt,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

PRESIDING JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Justices Jorgensen and Spence concurred in the judgment and opinion.

OPINION

¶1 The defendant, Allen Johnson, appeals from the second-stage dismissal of his

postconviction petition. The defendant argues that the trial court erred in finding that his petition

was untimely and that it failed to make a substantial showing of a constitutional violation. The

defendant also argues that further second-stage proceedings are necessary because

postconviction counsel did not satisfy the requirements of Illinois Supreme Court Rule 651(c)

(eff. Feb. 6, 2013). We affirm.

¶2 BACKGROUND

¶3 In May 2003, the body of Mary Barnett (the victim) was found in a wooded area behind a

cemetery in Rockford. An autopsy indicated that the victim’s death was caused by multiple

blows to the head. In August 2003, the defendant was charged with two alternate counts of first-
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degree murder (720 ILCS 5/9-1(a)(1), (a)(3) (West 2002)). The indictment alleged that the

defendant either (1) struck the victim with a blunt object, knowingly creating a strong probability

of great bodily harm or death, or (2) killed the victim in the course of a felony, namely criminal

sexual assault. In March 2005, following a jury trial, the defendant was found guilty of first-

degree murder as charged in count I, and not guilty of count II. The trial court denied the

defendant’s posttrial motion and sentenced the defendant to 50 years’ imprisonment.

¶4 On direct appeal, the defendant argued that the trial court erred in instructing the jury that

they could consider evidence of the defendant’s participation in other crimes for four purposes:

identification, intent, motive, and design, rather than for only two: identification and intent.

People v. Johnson, No. 2-05-0507 (2007) (unpublished order under Supreme Court Rule 23).

This court held that the trial court erred in instructing the jury that they could consider the

evidence of other offenses for the purpose of “design.” Id. at 11. Nonetheless, we upheld the

defendant’s conviction because the error did not result in prejudice. Id. The defendant did not

file a petition for rehearing, a petition for leave to appeal to the Illinois Supreme Court, or a

petition for a writ of certiorari from the United States Supreme Court.

¶5 On August 25, 2008, the defendant filed a pro se postconviction petition. The defendant

acknowledged that the petition was untimely, but asserted that his tardiness was not due to his

culpable negligence. The defendant asserted claims based on ineffective assistance of trial

counsel, ineffective assistance of appellate counsel, false testimony, and a discovery violation.

Attached to the petition was an affidavit from Christopher Askew. Askew, a fellow prison

inmate, stated that he helped the defendant prepare the postconviction petition. Although they

had discussed the postconviction petition in January 2008, the defendant was not able to get the

record of his case from the law library until March 19, 2008. After that date, there was a series

of prison lockdowns that prevented Askew from speaking with the defendant and reaching the

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law library. Attached to Askew’s affidavit was a memo from a prison counselor verifying that

the prison was on lockdown from March 25 through April 18, 2008. Additionally, there were

one-day lockdowns on April 24 and May 15, 2008. The counselor noted that he would “try to

get the other dates requested.”

¶6 On November 19, 2008, the trial court summarily dismissed the petition because it was

untimely. On April 30, 2010, this court reversed the summary dismissal of the petition and

remanded the cause to the trial court for second-stage proceedings. People v. Johnson, No. 2-09-

0350 (2010) (unpublished order under Supreme Court Rule 23). This court noted that the Post-

Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)) did not authorize a

summary dismissal of a postconviction petition on the basis that it was untimely. Johnson, slip

order at 2 (citing People v. Boclair, 202 Ill. 2d 89, 99 (2002)).

¶7 On remand, counsel was appointed to represent the defendant. On May 2, 2011, the

defendant filed a motion to allow the late filing of his postconviction petition. The defendant

asserted that his petition was due on March 11, 2008. The defendant alleged that in January

2008 he approached another inmate for assistance in filing a postconviction petition. However,

he was unable to access his transcripts in the prison law library until March 19, 2008, and then

prison lockdowns prevented the completion of his petition until July 22, 2008. The defendant

argued that the late filing of his petition was due not to his culpable negligence, but, rather, to

difficulty accessing his record and to prison lockdowns.

¶8 The State did not respond in writing to the defendant’s motion for late filing. At a May 2,

2011, hearing, before Judge Steven Vecchio, the State argued that the defendant was culpably

negligent because he did not need to wait for access to his record to assert the gist of a

constitutional claim. The trial court stated that it would hold an evidentiary hearing on the issue

of timeliness.

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¶9 On June 8, 2011, the evidentiary hearing took place. At the start of the hearing, the State

acknowledged that the hearing was to address the timeliness issue, but stated that it was

reserving its right to file a motion to dismiss addressing other issues. Postconviction counsel

stated that he had filed a Rule 651(c) certificate. He had spoken with the defendant and they

agreed that all the contentions were properly raised in the defendant’s pro se petition and there

was no need to amend it. The motion for late filing was essentially a supplement that addressed

the timeliness issue.

¶ 10 The defendant testified that, at some point after this court affirmed on his direct appeal,

he received some papers in the mail from this court concerning postconviction petitions. He did

not know what to do. In January 2008, another inmate approached him and offered to help him

file a postconviction petition. However, the prison was essentially on lockdown from January

2008 to April 2008. Due to the lockdowns, he was unable to get his record from the law library

and complete the postconviction petition on time. On cross-examination, the defendant

acknowledged that there were many days that the prison was not on lockdown. He knew that

there was a deadline for filing a postconviction petition but he did not know the deadline.

¶ 11 Following argument, the trial court granted the defendant’s motion for late filing. The

trial court found that the defendant did not know anything about postconviction petitions and had

no other choice but to rely on a “jailhouse lawyer.” The trial court held that, because the

defendant did not know the deadline for filing, he was not culpably negligent in failing to meet

that deadline. The trial court then addressed the defendant and asked if he was comfortable

standing on the allegations in his pro se petition. The defendant consulted with postconviction

counsel privately. Thereafter, the defendant stated that he wished to stand on his petition. The

trial court accepted the Rule 651(c) certificate.

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¶ 12 On January 27, 2012, the case was reassigned to Judge Randy Wilt. On October 26,

2012, the State filed a motion to dismiss the defendant’s postconviction petition. In the motion,

the State acknowledged that the timeliness issue had already been resolved but included

argument on that issue so that it was “not waived for any possible appeal or future proceeding.”

As to the merits, the State argued that the defendant had failed to make a substantial showing of

a constitutional violation.

¶ 13 On July 19, 2013, the trial court heard oral argument on the State’s motion to dismiss.

The State noted that the timeliness issue was resolved by Judge Vecchio and explained that it had

included argument on that issue in the motion to dismiss only so that the issue would be

preserved for possible appeal. Judge Wilt agreed that, since Judge Vecchio had made a

determination on the timeliness issue, he was “not really in a position to overturn that decision.”

Thereafter, the parties presented arguments on the motion to dismiss. As agreed, there was no

further argument on the timeliness of the petition.

¶ 14 On September 10, 2013, in a written order, the trial court granted the State’s motion to

dismiss. The trial court found that the prior order as to timeliness was not dispositive, because

the issue had not been briefed or properly litigated and Judge Vecchio had not made a finding as

to culpable negligence. The trial court found that, “based upon a review of the pleadings and

after considering arguments of counsel,” the petition was untimely and subject to dismissal on

that basis. Noting that the defendant did not file a petition for leave to appeal, or a petition for a

writ of certiorari, the trial court found that the petition was due six months after the 90-day

period in which the defendant could have filed a certiorari petition. This date was February 7,

2008. The trial court found that there was no explanation as to why the defendant waited until

January 2008 before seeking advice regarding the filing of a postconviction petition. The trial

court also found that there was no evidence of any prison lockdown that prevented the defendant

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from getting his transcripts between January and March 2008. The trial court also addressed the

merits of the defendant’s claims and found that the defendant had failed to make a substantial

showing of a constitutional violation. The trial court found that the postconviction petition

should be dismissed for that reason as well. Thereafter, the defendant filed a timely notice of

appeal.

¶ 15 ANALYSIS

¶ 16 On appeal, the defendant argues that the trial court erred in dismissing his petition at the

second stage. Specifically, the defendant argues that the trial court erred in considering the issue

of timeliness. Additionally, the defendant argues that, with respect to the merits of certain claims

in the petition, postconviction counsel did not satisfy the requirements of Rule 651(c) and the

case should be remanded for further second-stage proceedings.

¶ 17 The Act provides a remedy to criminal defendants who have had substantial violations of

their constitutional rights during their criminal trials. See People v. Vernon, 276 Ill. App. 3d

386, 391 (1995). A postconviction proceeding is not an appeal per se, but a collateral attack

upon a final judgment. See People v. Lester, 261 Ill. App. 3d 1075, 1077 (1994). The trial court

must review the petition within 90 days, and may summarily dismiss it if the court finds that it is

frivolous or patently without merit. People v. Pendleton, 223 Ill. 2d 458, 472 (2006). If the

petition is not dismissed during this period, the trial court will docket it for further proceedings.

Id.

¶ 18 Once a petition reaches the second stage, the defendant bears the burden of making a

substantial showing of a constitutional violation. People v. Coleman, 206 Ill. 2d 261, 277

(2002). At the second stage, all well-pleaded facts are taken as true unless they are positively

rebutted by the trial record. Pendleton, 223 Ill. 2d at 473. Mere conclusions cannot serve as the

basis for postconviction relief. People v. Coleman, 183 Ill. 2d 366, 381 (1998). If a defendant

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makes a substantial showing of a constitutional violation, then the petition is advanced to the

third stage for an evidentiary hearing. Id. We review de novo the dismissal of a postconviction

petition at the second stage. People v. Edwards, 195 Ill. 2d 142, 156 (2001).

¶ 19 The defendant’s first contention is that Judge Wilt erred in revisiting the issue of

timeliness and dismissing his postconviction petition on that basis. As to whether Judge Wilt

erred in ruling on the timeliness of the defendant’s petition, we note that the June 8, 2011, order,

granting the defendant’s motion for late filing, was an interlocutory order that was not

immediately appealable. A court has the inherent authority to reconsider and correct its rulings,

and this power extends to interlocutory rulings as well as to final judgments. People v. Mink,

141 Ill. 2d 163, 171 (1990). As such, a second trial judge has the authority to vacate the first trial

judge’s order. Id. Accordingly, Judge Wilt had the authority to revisit the timeliness issue and

reach a different conclusion than Judge Vecchio as to the timeliness of the defendant’s petition.

¶ 20 In so ruling, we note that the defendant argues that the State was barred from asking

Judge Wilt to review the decision of Judge Vecchio. However, the record demonstrates that the

State did not ask Judge Wilt to reconsider Judge Vecchio’s determination. Rather, the State

indicated that it included the issue in its written motion to dismiss so as to preserve the issue for

appeal. Even if the State had asked for reconsideration, that would not have been improper as an

interlocutory order can be reviewed, modified, or vacated at any time before final judgment.

Catlett v. Novak, 116 Ill. 2d 63, 68 (1987). The defendant also argues that, because he believed

that the issue of timeliness was settled after Judge Vecchio’s ruling, he did not amend his

petition on this issue or reargue it before Judge Wilt. As to the first point, before the hearing on

the defendant’s motion for late filing began, postconviction counsel stated that he filed a Rule

651(c) certificate and that there was no need to amend the petition. He further indicated that the

motion for late filing sufficed as to any amendments on the timeliness issue. The defendant’s

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insinuation that he was somehow prejudiced is thus without merit. As to the second point, the

defendant correctly notes that Judge Wilt did not hear further argument on the timeliness issue.

Nonetheless, the defendant had a full and fair opportunity to argue the issue before Judge

Vecchio.

¶ 21 We must next determine whether Judge Wilt erred in finding that the defendant’s

postconviction petition was untimely. In addressing the timeliness of the defendant’s petition,

we find instructive People v. Wallace, 406 Ill. App. 3d 172 (2010). In Wallace, the defendant,

Willon Wallace, pled guilty to home invasion and was sentenced to 36 years’ imprisonment. Id.

at 173. On January 13, 2006, after our supreme court directed this court to reconsider its initial

decision, we affirmed Wallace’s conviction and sentence. Id. Wallace did not file a petition for

leave to appeal. In October 2006, Wallace filed a pro se postconviction petition as well as a

motion for leave to file it late. Id. Wallace argued that the late filing was due not to his culpable

negligence but to prison law library closures. Id. at 174. The State filed a motion to dismiss,

which the trial court granted. Id.

¶ 22 This court affirmed the dismissal. Id. at 178. We noted that the applicable time limits for

filing a postconviction petition are the ones in effect when the defendant files his petition. Id. at

174. At the time of Wallace’s petition, section 122-1(c) of the Act provided that “ ‘[i]f a petition

for certiorari is not filed, no proceedings under this Article shall be commenced more than [six]

months from the date for filing a certiorari petition, unless the petitioner alleges facts showing

that the delay was not due to his or her culpable negligence.’ ” (Emphasis omitted.) Id. at 175

(quoting 725 ILCS 5/122-1(c) (West 2006)). The version of Illinois Supreme Court Rule 315(b)

in effect when Wallace filed his petition allowed a defendant 21 days from the entry of judgment

on direct appeal to file a petition for leave to appeal, or, if he filed an affidavit of intent within 21

days, he had 35 days from the date of the judgment. Id. (citing Ill. S. Ct. R. 315(b) (eff. Aug. 15,

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2006)). We noted that, applying either the 21-day or the 35-day period, Wallace’s petition for

leave to appeal was due in February 2006. Id. at 176. Thereafter, the defendant had six months

“from the date for filing a certiorari petition” in which to file his postconviction petition. Id. We

held that “the ‘date for filing a certiorari petition’ could arguably be interpreted as the date for

filing a petition for leave to appeal to the Illinois Supreme Court.” Id. Accordingly, we held that

Wallace’s postconviction petition was due in August 2006, which was six months from the time

his petition for leave to appeal was due (February 2006). Id. Because Wallace did not file his

postconviction petition until October 2006, it was untimely. Id.

¶ 23 We went on to explain that, even if the phrase “certiorari petition” in section 122-1(c)

referred only to a petition seeking review from the United States Supreme Court, the result

would not change. Id. at 177. We noted that, under United States Supreme Court Rule 13, a

“ ‘petition for a writ of certiorari seeking review of a judgment of a lower state court that is

subject to discretionary review by the state court of last resort is timely when it is filed with the

Clerk within 90 days after entry of the order denying discretionary review.’ (Emphasis added.)

Sup. Ct. R. 13.” Id. In other words, if a petition for leave to appeal to the state supreme court is

not filed, one cannot file a petition for a writ of certiorari from the United States Supreme Court.

We noted, therefore, that, because Wallace did not file a petition for leave to appeal to the

Illinois Supreme Court, he did not have an additional 90 days in which to appeal to the United

States Supreme Court. Id. Thus, his petition was still due in August 2006. Id.

¶ 24 In this case, as in Wallace, the defendant filed a direct appeal but did not file a petition

for leave to appeal to the Illinois Supreme Court or a petition for a writ of certiorari from the

United States Supreme Court. When he filed his pro se postconviction petition, the same version

of section 122-1(c) was in effect as was in effect in Wallace. However, the version of Rule

315(b) in effect at the time allowed the defendant 35 days from the entry of judgment to file a

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petition for leave to appeal. Accordingly, based on the reasoning in Wallace and the applicable

time limits when he filed his postconviction petition, the defendant had 35 days after the

judgment on direct appeal to file a petition for leave to appeal and six months from that point to

file his postconviction petition. Because we issued our determination on direct appeal on May 7,

2007, the defendant’s petition for leave to appeal was due on June 11, 2007, and his

postconviction petition was thus due on December 11, 2007. As he did not file it until August

2008, it was untimely. Id.

¶ 25 In so ruling, we note that the defendant urges us to follow the reasoning in People v.

Robinson, 2015 IL App (4th) 130815. In Robinson, the court addressed the same portion of

section 122-1(c) of the Act, which states that, “[i]f a petition for certiorari is not filed, no

proceedings under this Article shall be commenced more than [six] months from the date for

filing a certiorari petition, 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 2008). The Robinson court

rejected this court’s determination in Wallace that the date for filing a certiorari petition in

section 122-1(c) of the Act could be interpreted as the date for filing a petition for leave to appeal

to the Illinois Supreme Court (Robinson, 2015 IL App (4th) 130815, ¶ 22) and held that it

referred exclusively to a petition to the United States Supreme Court for a writ of certiorari (id.

¶ 28). The Robinson court held that, if a defendant files no petition for leave to appeal and

obtains no order denying discretionary review, then the 90-day period for filing a certiorari

petition under Rule 13 (Sup. Ct. R. 13) does not begin to run. Robinson, 2015 IL App (4th)

130815, ¶ 31. The Robinson court further reasoned that, under those circumstances, section 122-

1(c) of the Act leads to a procedural “cul-de-sac.” Id. Specifically, if the period for filing a

certiorari petition does not begin to run, “there would be no deadline for filing a certiorari

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petition, and without a deadline for filing a certiorari petition, there would be no deadline for

filing a postconviction petition.” Id. ¶ 36.

¶ 26 The defendant argues that, based on the reasoning in Robinson, his pro se postconviction

petition was not untimely, because he never filed a petition for leave to appeal to the Illinois

Supreme Court and, therefore, the date for filing a certiorari petition did not begin to run. Id.

Accordingly, because there was no deadline for filing a certiorari petition, there was no deadline

for filing his postconviction petition. Id. However, this court is not bound to follow the

decisions of appellate courts in other districts. People v. Aldridge, 219 Ill. App. 3d 520, 523

(1991). Further, the interpretation in Robinson violates the purpose of the statute, which is

clearly to provide deadlines for the filing of a postconviction petition. Under the interpretation in

Robinson, a defendant could potentially file a postconviction petition 20 years or more after his

conviction. It is well settled that courts should avoid statutory interpretations that lead to absurd

results. In re D.D., 196 Ill. 2d 405, 418-19 (2001). As stated by our supreme court:

“[W]here a plain or literal reading of a statute produces absurd results, the literal

reading should yield: ‘It is a familiar rule, that a thing may be within the letter of the

statute and yet not within the statute, because not within its spirit, nor within the intention

of its makers. *** If a literal construction of the words of a statute be absurd, the act

must be so construed as to avoid the absurdity.’ ” People v. Hanna, 207 Ill. 2d 486, 498

(2003) (quoting Church of the Holy Trinity v. United States, 143 U.S. 457, 459-60

(1892)).

As such, we decline to revisit our determination in Wallace.

¶ 27 Having determined that the defendant’s petition was untimely, we must next determine if

the late filing is excused, i.e., if the delay was not due to the defendant’s culpable negligence.

An untimely petition will not be dismissed if the defendant can prove that his delay in filing was

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not due to his culpable negligence. 725 ILCS 5/122-1(c) (West 2008). Culpable negligence has

been defined as unintentional yet negligent conduct that involves a disregard of consequences

that are likely to result from a person’s actions. Boclair, 202 Ill. 2d at 106. Further, culpable

negligence is akin to recklessness and requires something more than ordinary negligence. Id.

Nonetheless, all citizens are presumed to know the law and it was the defendant’s obligation to

know the Act’s time requirements. People v. Lander, 215 Ill. 2d 577, 588-89 (2005). It is well

settled that a defendant’s unfamiliarity with those requirements does not demonstrate a lack of

culpable negligence. People v. Hampton, 349 Ill. App. 3d 824, 829 (2004). A trial court’s

findings of fact regarding a defendant’s culpable negligence will not be reversed unless

manifestly erroneous, but the trial court’s ultimate conclusion as to whether the established facts

demonstrate culpable negligence is reviewed de novo. People v. Ramirez, 361 Ill. App. 3d 450,

452 (2005).

¶ 28 The defendant argued in his pro se postconviction petition and in his motion for late

filing that the delay was not due to his culpable negligence. Specifically, the defendant stated in

the petition and the motion that, in January 2008, he approached a prisoner who was a paralegal

and asked for help on his case. The defendant alleged that the delay between that time and the

time the petition was filed was due to difficulty accessing his record and to prison lockdowns.

At the second stage of postconviction proceedings, these statements must be taken as true. See

Pendleton, 223 Ill. 2d at 473. Further, the defendant’s testimony at the June 8, 2011, hearing

corroborated these statements. Nonetheless, as we have determined above, the defendant’s

petition was due in December 2007. Accordingly, any record difficulty or prison lockdowns

after January 2008 cannot explain the lateness of the petition or provide a basis for a finding of

lack of culpable negligence. See People v. Croft, 2013 IL App (1st) 121473, ¶ 13 (fact that

prison staff confiscated the defendant’s documents in April 1998 could not provide basis for lack

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of culpable negligence, because his postconviction petition was due prior to that date).

Accordingly, the defendant has failed to establish that the late filing was not due to his culpable

negligence.

¶ 29 In sum, we conclude that the defendant has failed to establish a lack of culpable

negligence for the late filing of his postconviction petition. On that basis, we affirm the trial

court’s second-stage dismissal of the defendant’s petition for postconviction relief. Having so

found, we need not address the defendant’s contention that, with respect to the merits of his

claims, there are factual disputes that require an evidentiary hearing.

¶ 30 The defendant’s final contention on appeal is that postconviction counsel did not satisfy

the requirements of Rule 651(c). We note that under Rule 651(c) counsel is required 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. People v. Perkins, 229 Ill. 2d 34,

52-53 (2007). However, the defendant does not argue that postconviction counsel violated Rule

651(c) with respect to this responsibility. Rather, the defendant’s arguments as to Rule 651(c)

are related to the merits of his postconviction claims. As we have affirmed the dismissal of his

petition as untimely, we also need not address this contention.

¶ 31 CONCLUSION

¶ 32 For the foregoing reasons, the judgment of the circuit court of Winnebago County is

affirmed.

¶ 33 Affirmed.

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