                                                                              FILED

                                                                           November 19, 2018

                                                                               Carla Bender

                                   2018 IL App (4th) 160526
                                                                           4th District Appellate

                                                                                 Court, IL

                                          NO. 4-16-0526

                                IN THE APPELLATE COURT

                                          OF ILLINOIS

                                     FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,                        )
    Appeal from the

     Plaintiff-Appellee,                                    )
    Circuit Court of

                                                            )
    McLean County

       v.                                                   )
    No. 10CF796

                                                            )

TIIYON T. BYRD,                                             )
    Honorable

     Defendant-Appellant.	                                  )     Robert L. Freitag,

                                                            )     Judge Presiding.



               JUSTICE KNECHT delivered the judgment of the court, with opinion.
               Presiding Justice Harris and Justice Holder White concurred in the judgment and
opinion.

                                           OPINION

¶1             Defendant, Tiiyon T. Byrd, appeals from the second-stage dismissal of his

amended postconviction petition. On appeal, defendant argues the trial court erroneously

dismissed his amended postconviction petition as untimely and this court should remand for a

third-stage evidentiary hearing as his petition made a substantial showing he received ineffective

assistance of plea counsel. We affirm.

¶2                                       I. BACKGROUND

¶3                                        A. Indictment

¶4             In August 2010, the State charged defendant by information with four counts of

armed robbery (720 ILCS 5/18-2(a)(2) (West 2008) (counts I through IV)). The armed robberies
were alleged to have occurred on or about March 25, April 5, April 18, and July 7, 2010. The

information was later superseded by indictment on each count.

¶5             In October 2010, the State charged defendant by indictment with one count of

attempted armed robbery (720 ILCS 5/8-4, 18-2(a)(2) (West 2008) (count V)) and an additional

count of armed robbery (720 ILCS 5/18-2(a)(2) (West 2008) (count VI)). The attempted armed

robbery was alleged to have occurred on or about July 12, 2010, and the armed robbery was

alleged to have occurred on or about July 20, 2010.

¶6                                       B. Plea Hearing

¶7             At a January 7, 2011, hearing, the parties indicated they reached a fully negotiated

plea agreement. As part of that agreement, defendant would plead guilty to each count in this

case, be assessed $2685.85 in restitution, and serve “an agreed sentence of 34 years[’]

[imprisonment]” in exchange for the State moving to dismiss McLean County case Nos. 10-CF­

771, 10-CF-803, 09-CM-369, 10-CM-735, 10-CM-761, 10-CM-1262, 10-CM-1396, 10-DT-477

and 09-TR-2545. According to a pretrial services bond report contained in the record on appeal,

the State charged defendant in the additional McLean County cases with residential burglary,

aggravated domestic battery, domestic battery, endangering the life/health of a child, criminal

trespass to a residence, possession of cannabis in a penal institution, criminal trespass to a

building, resisting a peace or correctional officer, possession of drug paraphernalia, possession of

cannabis in an amount between 2.5 and 10 grams, possession of cannabis in an amount less than

2.5 grams, theft in an amount less than $300, driving under the influence of any amount of a

drug, operating an uninsured motor vehicle, and operating a vehicle with a loud sound

amplification system. The parties also indicated the agreed sentence of 34 years’ imprisonment


                                               -2­
would consist of consecutively imposed terms of six years’ imprisonment on each armed robbery

count and four years’ imprisonment on the count of attempted armed robbery.

¶8             The trial court admonished defendant as to the charges and the possible penalties

to which he desired to plead. Defendant indicated he understood. The court admonished

defendant as to the rights he was giving up if he pleaded guilty. Defendant indicated he

understood. The court questioned defendant if he had an adequate opportunity to consult with his

counsel before making the decision to plead guilty. Defendant indicated he had. The court

questioned defendant if he needed more time to talk with his counsel. Defendant indicated he did

not. Defendant expressed his desire to plead guilty and signed a jury waiver.

¶9             The State provided the following factual basis in support of the plea:

               “If this case went to trial, we expect the witnesses would testify

               that between March and July, there were a number of armed

               robberies here in McLean County. Those include at Thorton’s on

               March 25, 2010; Walgreen’s on April 5, 2010; Beningo’s on April

               18, 2010; Steak ‘n Shake on July 7, 2010; and Clark Gas Station

               on July 20, 2010.

                       Additionally, on July 12, 2010, an attempt was made at the

               Shell Gas Station. At the time, an individual later identified as the

               [d]efendant attempted to enter the store while masked, and at that

               time the doors had already been locked, and he was unable to gain

               entry into the station.

                       The officers obtained a description, and in the first four


                                               -3­
robberies just mentioned, two individuals entered the stores while

masked and concealing their identities and also brandishing

handguns, one a revolver and one an automatic, and in the later

Clark Gas Station, it was a single individual, also concealing his

identity and using a handgun.

       Descriptions were obtained and videos were also obtained

for those individuals. The individuals were also at one point

wearing blue latex gloves. One of those gloves was located near

the robbery that occurred at the Steak n’ Shake on July 7, 2010. A

later DNA [(deoxyribonucleic acid)] match came back to an

individual by the name of Buchanan, who turned out to be the co-

defendant of the [d]efendant Tiiyon Byrd, who was later identified

as the second individual in the first four robberies and the single

individual in the Shell and Clark stations.

       After two individuals were identified, a search warrant was

obtained for the location where they were found. The search

warrant turned up several items of identification that matched the

descriptions of the robbers.

       Also, the two handguns were also located. Those handguns

were later sent to the [c]rime [l]ab, in addition to the glove, and the

[d]efendant’s DNA was found on one or both of those handguns as

a mixture.


                                 -4­
                       Also, after the two individuals were apprehended, Mr.

               Buchanan did in fact acknowledge his part in the armed robberies

               and did in fact identify the [d]efendant as his accomplice or the

               second individual in the robberies and matched the photos of the

               two that were done singularly by one individual. All of the events

               occurred in McLean County.”

Defendant stipulated that the State could produce witnesses who would testify substantially as

indicated, and the trial court found the factual basis sufficient to support the plea.

¶ 10           The trial court questioned defendant if he had any questions before it accepted his

plea. Defendant indicated he did not. The trial court accepted defendant’s plea, finding it to be

knowingly and voluntarily made, and then sentenced him as provided in the plea agreement and

entered an order of restitution. The court further dismissed the additional McLean County cases.

¶ 11           After rendering its sentence, the trial court admonished defendant as to his

appellate rights. Specifically, the court admonished defendant as follows:

                       “The only way you could ever appeal what has happened

               here today is to first file within 30 days in writing a motion to

               withdraw your guilty plea. You don’t get to just change your mind

               because you feel like it. You would have to have a good legal

               reason to be allowed to do that.

                       [Plea counsel] remains your appointed counsel for the next

               30 days, and if he filed a motion like that on your behalf, we’d

               hold a hearing about it, and if I thought you had a good legal


                                                  -5­
reason, I would let you take the plea back, we would reinstate all

of the six counts that you just plead[ed] to, plus the State could

reinstate all the charges in all the cases that just got dismissed, and

we would essentially go back and start over where we were at the

start of this hearing. Everything would be set for trial and we

would go from there and resolve the cases with you being subject

to the maximum penalties that I explained to you in any of the

charges plus the maximum penalty in any of these cases that got

dismissed.

       If I held a hearing on your motion and I thought you didn’t

have a good legal reason, I would deny your motion, and then you

would get 30 additional days in which you would have to file a

written notice of appeal with the Clerk, and only be following that

procedure can you appeal to the Appellate Court down in

Springfield about what may have happened here today. You cannot

raise issues unless you put them in the written motion, so anything

you leave out is waived.

       You have the right to counsel, and counsel if you can’t

afford it, for the whole process in the trial court as well as the

appeal in Springfield, and you have the right to a free transcript of

any proceedings that might be necessary to have a hearing on your

motion or to appeal down in Springfield.”


                                 -6­
The court questioned defendant if he understood his appellate rights. Defendant indicated he did.

¶ 12                         C. Defendant’s Letter to the Trial Court

¶ 13           In April 2011, defendant sent a letter to the trial court inquiring into his “plea­

withdrawal process.” The letter was dated April 5, 2011. In the letter, defendant acknowledged

“[i]t’s been well over my time limit so I’m definitely concerned with what exactly is going on.”

Defendant asserted both he and his family wrote his plea counsel but received no response.

Defendant requested “to get back into court” because he was not in his “right state of mind”

when he pleaded guilty. Defendant asserted he was “forced” to believe accepting the plea offer

was his “best bet.” Defendant indicated his research in the prison law library led him to realize

his plea counsel did not act in his best interest. Defendant asserted he “lied” to the court when it

asked him if he was satisfied with how his counsel handled his case at the plea hearing.

Defendant requested a response from the court as to his next step, as he had not received a

response from his counsel.

¶ 14                D. Untimely Pro Se Motion to Withdraw the Guilty Plea

¶ 15           On April 13, 2011, the trial court entered a docket entry indicating it reviewed

defendant’s April 5, 2011, letter and construed it to be a pro se motion to withdraw his guilty

plea. The court then struck the pro se motion, finding it to be untimely as the plea was entered on

January 7, 2011.

¶ 16                                   E. Notice of Appeal

¶ 17           On May 11, 2011, defendant placed in the institutional mail a pro se “Late Notice

of Appeal.” Later that month, this court granted defendant leave to file his notice of appeal and

appointed the office of the State Appellate Defender (OSAD) to represent him on appeal.


                                               -7­
¶ 18                                    F. Direct Appeal

¶ 19           On July 28, 2011, OSAD, on defendant’s behalf, filed a motion to dismiss the

appeal. In the motion, OSAD asserted dismissal was necessary as (1) the trial court properly

admonished defendant as to his appellate rights and (2) defendant failed to comply with the

requirements of Illinois Supreme Court Rule 604(d) (eff. July 1, 2006). OSAD also indicated it

advised defendant of the availability of postconviction procedures.

¶ 20           On August 1, 2011, this court granted the motion to dismiss the appeal.

¶ 21           On August 17, 2011, defendant placed in the institutional mail a pro se “Petition

for Rehearing.” In the petition, defendant requested this court to reconsider the dismissal of the

appeal as he was not provided an opportunity to respond to the motion to dismiss.

¶ 22           On August 30, 2011, this court vacated the order dismissing defendant’s appeal,

reinstated the case, and granted defendant the opportunity to respond to the motion to dismiss the

appeal by September 20, 2011.

¶ 23           Shortly before the September 20, 2011, deadline to file a response to the motion

to dismiss the appeal, defendant filed a pro se motion for an extension of time. Defendant’s

pro se motion was file-stamped on September 19, 2011. That same day, this court granted the

motion and extended the deadline to file a response to October 11, 2011.

¶ 24           On October 7, 2011, defendant placed in the institutional mail a pro se response to

the motion to dismiss the appeal. In the response, defendant requested this court deny the motion

to dismiss as both his appellate and plea counsel provided ineffective assistance. Specifically,

defendant argued his plea counsel provided ineffective assistance by failing to file a motion to

withdraw his guilty plea after being requested to do so and his appellate counsel provided


                                              -8­
ineffective assistance by moving to dismiss the appeal rather than pursuing a claim concerning

plea counsel’s performance. Defendant acknowledged his appellate counsel suggested he file a

pro se postconviction petition. Defendant asserted composing such a petition would be difficult

due to his lack of legal training and would result in unnecessary delay.

¶ 25           On October 26, 2011, this court granted the motion to dismiss the appeal over

defendant’s objection.

¶ 26                             G. Pro Se Postconviction Petition

¶ 27           On December 5, 2012, defendant placed in the institutional mail a pro se

postconviction petition. In the petition, defendant alleged, in part, that he received ineffective

assistance because plea counsel (1) failed to investigate an alibi for the July 20, 2010, armed

robbery and (2) failed to file a motion to withdraw the guilty plea after being requested to do so.

Defendant attached to his petition a personal affidavit swearing he was at Bromenn Hospital for

the birth of his child the “whole entire day and night” of July 20, 2010, as well as affidavits of

his mother and aunt swearing he was at the hospital that “entire” day. Defendant also attached

copies of January 14, 2011, emails between plea counsel and defendant’s mother. In those

emails, defendant’s mother inquired into the appeal process for her son, to which plea counsel

responded as follows:

                         “As I have explained to [defendant] and as the [j]udge

               explained to [defendant], [i]f he wishes to appeal his plea and

               sentencing, he must file, within 30 days of the date of his plea[,] a

               written motion asking to take his plea agreement back and listing

               all of his reasons therefor[e]. I remain his attorney for those 30


                                               -9­
              days. If that is filed, I will get a transcript and review it for any

              other causes for the judge to set aside what appears to be a valid

              agreement. There would be a hearing and, at that time or shortly

              thereafter, the judge would rule. If he grants the motion,

              [defendant] would be back in the same position he was in last

              Friday a.m., charged in all cases and headed for trial on 10-CF­

              796. All dismissed charges would be reinstated; if [defendant] gets

              to start over, the State would be afforded the same right. The

              prosecutor is never required to make any offers. Having offered, as

              in this case, he is in no way obligated to ever offer again. The great

              likelihood is that the judge would deny the motion. If the motion

              were denied, then [defendant] could ask that a [n]otice of [a]ppeal

              be filed and hire an attorney or have the judge appoint [OSAD].

              Recall that, given my review of the case to which he plead[ed], he

              was properly charged and the State could have produced witnesses

              who would have testified substantially as indicated.”

¶ 28             H. Pro Se Postconviction Petition Advanced to Second Stage

¶ 29          In March 2013, the trial court advanced defendant’s pro se postconviction petition

to the second stage of postconviction proceedings and appointed counsel to represent him.

¶ 30                                  I. Motion to Dismiss

¶ 31          In December 2015, the State filed a motion to dismiss defendant’s pro se

postconviction petition. In the motion, the State argued dismissal was proper as the petition


                                              - 10 ­
(1) was untimely and (2) failed to make a substantial showing of a constitutional violation.

¶ 32                           J. Amended Postconviction Petition

¶ 33           In May 2016, defendant, through postconviction counsel, filed an amended

postconviction petition. Defendant’s postconviction counsel also filed a certificate in compliance

with Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013).

¶ 34           In the amended postconviction petition, defendant initially addressed the issue of

timeliness. Defendant argued “[t]he record in this case supports a finding that [the] delay in filing

his post[ ]conviction petition was not due to his culpable negligence.” Citing a March 2012

request for discovery and transcripts and an August 2012 request for a copy of his April 5, 2011,

letter to the trial court, defendant argued that he “was doing all he knew to do in order to obtain

the proper documents to prepare his post[ ]conviction petition.” Defendant attached his March

and August 2012 requests for documents to his amended postconviction petition.

¶ 35           After addressing the issue of timeliness, defendant alleged claims of ineffective

assistance of plea counsel. In part, defendant asserted his plea counsel provided ineffective

assistance by failing to (1) “investigate certain matters regarding his alibi,” (2) “challenge the

State’s evidence,” and (3) “file [a] motion to withdraw [his] guilty plea.”

¶ 36           Defendant argued plea counsel’s ineffective assistance—by failing to investigate

certain matters regarding his alibi—impacted his ability to knowingly and voluntarily plead

guilty. Defendant alleged he told counsel he would not plead guilty to the July 20, 2010, armed

robbery as he did not commit that offense, to which counsel advised him the State did not have a

case. Defendant alleged counsel later advised him at a final pretrial hearing “ ‘he had not a

fighting chance, and the best thing he could do for himself at this moment, would be to take the


                                               - 11 ­
State’s offer of 34 years.’ ” Defendant asserted counsel’s change in advice caused him to believe

he had no other choice than to plead guilty. That is, he “felt all hope was lost since his ***

counsel did not do any investigation and was telling him he would be found guilty at trial.”

Defendant attached his pro se postconviction petition, including his personal affidavit and the

affidavits of his mother and aunt, to his amended postconviction petition.

¶ 37           Defendant argued plea counsel’s ineffective assistance—by failing to challenge

the State’s evidence—impacted his ability to knowingly and voluntarily plead guilty. Defendant

asserted the State failed to present any evidence before the grand jury or in its factual basis,

indicating the attempted armed robbery was committed with a firearm. Defendant further

asserted he was prejudiced by counsel’s failure to challenge the State’s evidence because “at the

very least as far as [c]ount [V] is concerned *** he would have gone to trial and been found not

guilty because the State would not have been able to prove all the elements of that count.”

Defendant attached copies of transcripts from the grand jury and plea proceedings to his

amended postconviction petition.

¶ 38           Defendant argued plea counsel provided ineffective assistance by failing to file a

motion to withdraw his guilty plea after being requested to do so. Defendant alleged he wrote

plea counsel several times, telling him “he wanted to withdraw his guilty plea,” but counsel

never responded. Defendant also alleged he requested his family to ask plea counsel to file a

motion to withdraw the guilty plea on his behalf. As to the grounds that could have been raised

in a motion to withdraw the guilty plea, defendant asserted he “would have alleged that his guilty

plea was not knowing and voluntary based on [plea counsel’s ineffective assistance by failing to

investigate an alibi and challenge the State’s evidence].” Defendant attached a copy of his April


                                              - 12 ­
5, 2011, letter to the trial court and copies of the January 14, 2011, emails between plea counsel

and defendant’s mother.

¶ 39                       K. Hearing on the State’s Motion to Dismiss

¶ 40           Following a July 2016 hearing, the trial court dismissed defendant’s amended

postconviction petition, finding it was untimely and defendant failed to show the delay was not

due to his culpable negligence. The court also found dismissal was proper as the petition failed to

make a substantial showing of a constitutional violation.

¶ 41           This appeal followed.

¶ 42                                       II. ANALYSIS

¶ 43           On appeal, defendant argues the trial court erroneously dismissed his amended

postconviction petition as untimely and this court should remand for a third-stage evidentiary

hearing as his petition made a substantial showing he received ineffective assistance of plea

counsel. The State disagrees.

¶ 44           Defendant argues the trial court erroneously dismissed his amended

postconviction as untimely. Specifically, defendant asserts the court applied the wrong

limitations period and postconviction counsel provided unreasonable assistance by failing to

identify the correct limitations period. Alternatively, defendant asserts even if the court applied

the correct limitations period and his petition is untimely, the late filing was not due to his

culpable negligence and postconviction counsel provided unreasonable assistance by failing to

assert the court and plea counsel were the parties culpable for the late filing.

¶ 45           Section 122-1(c) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(c)

(West 2012)) provides, in part, as follows:


                                                - 13 ­
                       “When a defendant has a sentence other than death, no

               proceedings under this Article shall be commenced more than 6

               months after the conclusion of proceedings in the United States

               Supreme Court, unless the petitioner alleges facts showing that the

               delay was not due to his or her culpable negligence. If a petition

               for certiorari is not filed, no proceedings under this Article shall be

               commenced more than 6 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. If a

               defendant does not file a direct appeal, the post-conviction petition

               shall be filed no later than 3 years from the date of conviction,

               unless the petitioner alleges facts showing that the delay was not

               due to his or her culpable negligence.”

Our supreme court has also read into section 122-1(c) a six-month limitations period from the

date for filing a petition for leave to appeal. People v. Johnson, 2017 IL 120310, ¶ 24, 77 N.E.3d

615 (construing the statute as “provid[ing] that a postconviction petition must be filed within six

months of the date for filing a petition for certiorari or a petition for leave to appeal”).

¶ 46           Defendant, for the first time on appeal, asserts his postconviction petition was

timely as it was filed within three years from the date of his conviction and his postconviction

counsel provided unreasonable assistance for failing to argue so before the trial court.

Specifically, defendant argues the three-year limitations period applies because he “could not

pursue a direct appeal” due to his failure to comply with Illinois Supreme Court Rule 604(d) (eff.


                                                - 14 ­
Sept. 1, 2006). In support of his argument, defendant cites People v. Flowers, 208 Ill. 2d 291,

301, 802 N.E.2d 1174, 1180 (2003), for the proposition the failure to file a timely Rule 604(d)

motion generally precludes a reviewing court from considering an appeal on the merits and

results in dismissal. Defendant also—for the first time in his reply brief—cites People v. Ross,

352 Ill. App. 3d 617, 619-20, 818 N.E.2d 738, 740-41 (2004), which found “no direct appeal was

taken” and the three-year limitations period applied where a defendant’s appeal was dismissed

for the failure to file a timely Rule 604(d) motion. Defendant also requests, citing People v.

McDonald, 2018 IL App (3d) 150507, ¶ 23, 95 N.E.3d 1, we apply the rule of lenity and

construe any ambiguity in the statute in his favor.

¶ 47           The State asserts the three-year limitations period does not apply because

defendant “file[d] a direct appeal.” Specifically, the State contends the filing of a notice of

appeal constitutes the filing of a direct appeal and defendant’s failure to comply with Illinois

Supreme Court Rule 604(d) (eff. Sept. 1, 2006) does not negate the fact a direct appeal was filed.

In support of its argument, the State cites the plain language of the statute, as well as Johnson,

2017 IL 120310, ¶ 23, which noted section 122-1(c) “even provides a three-year deadline for

filing a petition when no notice of appeal is filed.”

¶ 48            Defendant’s argument presents a question of statutory interpretation. “The

cardinal rule of statutory construction is to ascertain and give effect to the legislature’s intent.”

Id. ¶ 15. “The most reliable indicator of legislative intent is the language of the statute, given its

plain and ordinary meaning.” Id. “If the language of a statute is clear and unambiguous, we will

give effect to the statute’s plain meaning without resort to other aids of statutory construction.”

In re Jarquan B., 2017 IL 121483, ¶ 22, 102 N.E.3d 182.


                                                - 15 ­
¶ 49           The relevant part of the statute states: “If a defendant does not file a direct appeal,

the post-conviction petition shall be filed no later than 3 years from the date of conviction, 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 2012). The three-year limitations period is applicable only if a

defendant “does not file a direct appeal.” Id. Based on the clear and unambiguous language of

the statute, it is the act of filing a direct appeal that precludes the three-year limitations period

from applying. Contrary to defendant’s argument, the three-year limitations period is not

conditioned on the “pursuit” of an appeal or the manner in which it is resolved.

¶ 50           In reaching this decision, we find Ross to be distinguishable. At the time that

decision was rendered, section 122-1(c) provided, in part, as follows:

               “No proceedings under this Article shall be commenced more than

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

               date for filing such a petition if none is filed *** or 3 years from

               the date of conviction, whichever is sooner, unless the petitioner

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

               culpable negligence.” 725 ILCS 5/122-1(c) (West 2002).

Public Act 93-972, § 10 (eff. Aug. 20, 2004), amended section 122-1(c) to include language

indicating the three-year limitations period applies only “[i]f a defendant does not file a direct

appeal.” (Emphasis added.) This additional language makes Ross distinguishable. See Jarquan

B., 2017 IL 121483, ¶ 22 (“[W]e must construe words and phrases *** so that, if possible, no

term is rendered superfluous or meaningless.”).




                                               - 16 ­
¶ 51           Having concluded the statutory language is clear and unambiguous, we also need

not address defendant’s request for us to apply the rule of lenity to the Act. See Johnson, 2017 IL

120310, ¶ 30 (“Pursuant to the rule of lenity, ambiguous criminal statutes will generally be

construed in the defendant’s favor.”).

¶ 52           We must next address what constitutes the filing of a direct appeal. In Johnson,

2017 IL 120310, ¶ 12, the defendant argued no filing deadline existed under section 122-1(c) of

the Act (725 ILCS 5/122-1(c) (West 2008)) when no petition for leave to appeal is filed, as the

statute was silent on the issue. In rejecting the defendant’s argument on the ground it would lead

to an absurd and unjust result not intended by the legislature, the court noted:

               “The statute even provides a three-year deadline for filing a

               petition when no notice of appeal is filed. We see no reason for the

               legislature to provide a deadline when no notice of appeal has been

               filed but not to include one when no petition for leave to appeal

               has been filed.” Johnson, 2017 IL 120310, ¶ 23.

While the issue of what constitutes the filing of a direct appeal was not directly before the court,

we find the court’s comments, suggesting it is the filing of a notice of appeal, to be persuasive.

Illinois Supreme Court Rule 606(a) (eff. Mar. 20, 2009) provides “[a]ppeals shall be perfected by

filing a notice of appeal.” If the filing of a notice of appeal commences a direct appeal, it follows

the filing of a notice of appeal constitutes the “fil[ing] [of] a direct appeal” for purposes of

section 122-1(c), thereby precluding the three-year limitations period from applying.

¶ 53           Here, defendant elected to seek appellate review by filing a pro se late notice of

appeal. The filing of that notice of appeal commenced his direct appeal and precluded the three­


                                               - 17 ­
year limitations period from applying. Defendant’s postconviction counsel therefore could not

have provided unreasonable assistance by failing to raise an argument to the contrary before the

trial court.

¶ 54           Defendant alternatively asserts even if the trial court applied the correct

limitations period and his petition is untimely, the late filing was not due to his culpable

negligence, postconviction counsel provided unreasonable assistance by failing to identify the

court, and plea counsel were the parties culpable for the late filing.

¶ 55           As an initial matter, the record is clear defendant did not file his postconviction

petition within the applicable limitations period. Again, our supreme court has read into section

122-1(c) a six-month limitations period from the date for filing a petition for leave to appeal.

Johnson, 2017 IL 120310, ¶ 24. On October 26, 2011, this court dismissed defendant’s direct

appeal. Defendant had 35 days from that date to file a petition for leave to appeal. Ill. S. Ct. R.

315(b)(2) (eff. Feb. 26, 2010); R. 612(b)(2) (eff. Sept. 1, 2006). The six-month period for filing a

postconviction petition started to run after the expiration of that 35-day period. Johnson, 2017 IL

120310, ¶ 24. The postconviction petition defendant placed in the institutional mail on December

5, 2012, was clearly beyond the six-month limitations period.

¶ 56           The failure to file a postconviction petition within the applicable limitations

period 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(c) (West 2012). Culpable negligence refers to

“ ‘something greater than ordinary negligence and is akin to recklessness.’ ” Johnson, 2017 IL

120310, ¶ 26 (quoting People v. Boclair, 202 Ill. 2d 89, 108, 789 N.E.2d 734, 745 (2002)). We

review a trial court’s ultimate conclusion as to whether the established facts demonstrate


                                                - 18 ­
culpable negligence de novo. People v. Flowers, 2015 IL App (1st) 113259, ¶ 45, 24 N.E.3d

1240.

¶ 57             Defendant’s primary argument, raised for the first time on appeal, as to why the

late filing was not due to his culpable negligence concerns the “triggering event that caused the

abbreviated deadline.” Defendant asserts “the inciting incidents for th[e] abbreviated deadline

were the trial court’s improper admonishments and plea counsel’s failure to file a motion to

withdraw [his] guilty plea.” Defendant further contends postconviction counsel provided

unreasonable assistance by failing to assert the court and plea counsel were the parties culpable

for the late filing.

¶ 58             Under section 122-1(c), a defendant must show his or her delay in filing the

petition within the applicable limitations period was not due to his or her culpable negligence.

725 ILCS 5/122-1(c) (West 2012); see also Johnson, 2017 IL 120310, ¶ 26 (“A petition that is

untimely will not be dismissed if the petitioner alleges facts showing that the delay in filing the

petition was not due to his or her culpable negligence.”). Defendant’s assertion he was not

culpable for the “triggering event” that caused the “abbreviated deadline” is an attempt to seek

review of claims he could have raised in his direct appeal or postconviction petition. These

events do not demonstrate cause for why he did not file his postconviction petition within the

applicable limitations period. Defendant’s postconviction counsel therefore could not have

provided unreasonable assistance for failing to raise this argument before the trial court.

¶ 59             Defendant’s other arguments as to why the late filing was not due to his culpable

negligence are also meritless. Defendant asserts his age and lack of legal training prevented him

from preparing his postconviction petition within the “abbreviated deadline.” Setting aside


                                               - 19 ­
defendant’s extensive history of pro se filings with this court while imprisoned, our supreme

court has made clear ignorance of the law does not excuse a delayed filing. Boclair, 202 Ill. 2d at

104. Defendant asserts his imprisonment prevented him from preparing his postconviction

petition within the “abbreviated deadline.” Imprisonment alone does not excuse a delayed filing.

See People v. Upshaw, 2017 IL App (1st) 151405, ¶¶ 24-25, 89 N.E.3d 1049 (finding a delay

was not due to the defendant’s culpable negligence where the defendant showed he was subject

to a prison lockdown for a substantial amount of time and prison staff lost his trial transcripts and

legal materials). Finally, defendant asserts the delay was not due to his culpable negligence

because section 122-1(c) does not clarify the applicable limitations period “when a defendant

cannot pursue a direct appeal on the merits.” The filing of a direct appeal alone precludes the

three-year limitations period from applying.

¶ 60           Defendant failed to show the delay in filing his postconviction petition was not

due to his culpable negligence. The trial court properly dismissed defendant’s amended

postconviction petition as untimely, and we need not address the court’s alternative ground for

dismissal.

¶ 61                                    III. CONCLUSION

¶ 62           We affirm the trial court’s dismissal of defendant’s amended postconviction

petition and award the State its $75 statutory assessment as costs of this appeal (55 ILCS 5/4­

2002(a) (West 2016)).

¶ 63           Affirmed.




                                               - 20 ­
