                                           No. 2--04--0127

                                 October 6, 2006
______________________________________________________________________________

                                                IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE              ) Appeal from the Circuit Court
OF ILLINOIS,                         ) of De Kalb County.
                                     )
    Plaintiff-Appellee,              )
                                     )
v.                                   ) No. 97--CF--413
                                     )
JAHMAL PERKINS,                      ) Honorable
                                     ) Robbin J. Stuckert,
    Defendant-Appellant.             ) Judge, Presiding.
    __________________________________________________________________________
    ____

        JUSTICE O'MALLEY delivered the opinion of the court:

        Defendant, Jahmal Perkins, appeals from the dismissal of his petition under the Post-

Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2002)). He contends that the

assistance of counsel he received was less than the reasonable assistance due him under the Act.

Specifically, he asserts that postconviction counsel's defense of his petition against the State's motion

to dismiss for untimeliness showed that counsel was unfamiliar with the applicable legal principles.

The State responds that defendant has presented nothing to suggest that he could have successfully

defended against its motion to dismiss had counsel argued according to proper principles, and,

because defendant has failed to show any prejudice, the State asserts that the law does not require a

remand. We agree with defendant that postconviction counsel's arguments show a misunderstanding

of the law, which may have caused him to fail to investigate whether facts existed that would have
No. 2--04--0127


supported legally sound arguments. Further, we conclude that a defendant need not show that

postconviction counsel's less-than-reasonable assistance prejudiced him or her. We therefore vacate

the dismissal and remand the matter to the trial court.

                                        I. BACKGROUND

       A jury convicted defendant of armed violence (720 ILCS 5/33A--2 (West 1996)) predicated

on residential burglary (720 ILCS 5/19--3 (West 1996)), residential burglary, home invasion (720

ILCS 5/12--11(a)(1) (West 1996)), and aggravated battery (720 ILCS 5/12--4(b)(1) (West 1996)).

He received concurrent sentences for all four convictions: 24 years' imprisonment for the armed

violence, residential burglary, and home invasion convictions, and 5 years' imprisonment for the

aggravated battery conviction. Defendant appealed, asserting among other things that under People

v. Lombardi, 184 Ill. 2d 462 (1998), the penalty for armed violence involving a category I weapon

and predicated on residential burglary or home invasion violated the proportionate penalties clause

of the Illinois Constitution. This court agreed and vacated the armed violence conviction and the

conviction of the lesser included offense of residential burglary. We ordered the clerk to correct the

mittimus to reflect the vacated convictions. People v. Perkins, No. 2--98--1294 (2001) (unpublished

order pursuant to Supreme Court Rule 23). The mandate issued on July 20, 2001.

       On October 17, 2002, defendant mailed a "Petition to Vacate the Void Sentencing Judgment"

and a "Petition for Postconviction Relief" to the circuit court. In the postconviction petition, he

contended that the imposition of a term of mandatory supervised release (MSR) was unconstitutional

in conjunction with determinate sentencing. In the "Petition to Vacate the Void Sentencing

Judgment," he contended that trial counsel had filed "several crucial motions" and a postconviction

petition without notifying defendant. He also stated that the supreme court was considering issues




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No. 2--04--0127


relevant to his case in "People v. Evans, Washington, Case[]# 93959, 95951 and 84952" and that in

these cases the court had found sentencing error. 1

       The court appointed the public defender to represent defendant, apparently treating both

filings as a single postconviction petition. At an early status hearing, the State mentioned that it

expected to file a motion to dismiss after defendant filed his amended petition. Shortly after that,

counsel stated that he had correspondence from defendant and that he wanted to be sure that the

amended petition incorporated everything that defendant wanted it to. On August 25, 2003, counsel

filed a certificate pursuant to Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)), stating, inter alia,

that no amendment was necessary for an adequate presentation of the issues. On October 20, 2003,


       1
           As best we can determine, defendant is referring to Lombardi: two defendants whose

appeals the supreme court consolidated with Lombardi's were named Evans and Washington, and

No. 84952 is one of the docket numbers associated with Lombardi. The other two docket numbers

are those of cases in which the court denied leave to appeal.




                                                 -3-
No. 2--04--0127


the State moved to dismiss the petition as untimely. The parties agreed below (and agree on appeal)

that defendant filed the petition outside the time provided by the Act.

       On January 26, 2004, the court heard argument on the State's motion to dismiss. Counsel

asserted the merits of the petition, contending that defendant's "[f]irst and foremost" contention was

"that the sentencing Court improperly took into consideration charges which were overturned on

appeal [i]n sentencing the defendant." He asserted that this claim was a part of the "Petition to

Vacate the Void Sentencing Judgment." The State argued only the petition's untimeliness; it

asserted that defendant filed the petition beyond the last regular filing date for a postconviction

petition and that he did not allege his lack of culpable negligence for the late filing. In response,

counsel argued that, when this court vacated two of defendant's convictions, it changed his

sentences, restarting the time for filing a petition. He further argued that defendant could not have

timely raised the trial court's improper consideration of the vacated sentences because the issue did

not exist until this court vacated the two convictions. Finally, he argued that the limitations period

for filing a petition was flexible and that the court could take into account the unfairness of

defendant having been sentenced in part based on vacated convictions. The court granted the motion

to dismiss, and defendant appealed.

       On appeal, defendant argues that counsel failed to provide reasonable assistance, because he

relied on arguments for the petition's timeliness that are contradicted by binding authority.

Defendant contends that these arguments showed a lack of understanding of the law regarding

timeliness. We take defendant to imply that, because counsel was unaware of the law, he probably

did not ask defendant the questions necessary to amend the petition to allege a lack of culpable

negligence in filing late. The State responds with two arguments. First, it asserts that because

untimeliness is an affirmative defense, postconviction counsel need not anticipatorily amend a

                                                 -4-
No. 2--04--0127


petition to allege a lack of culpable negligence in filing late. Instead, it asserts, counsel need address

the issue only in response to the State's motion to dismiss. Second, citing People v. Vasquez, 356

Ill. App. 3d 420, 425 (2005), the State argues that defendant has failed to show that facts existed

such that counsel could have amended the petition to assert a lack of culpable negligence for his

untimely filing. Therefore, the State asserts, defendant has not shown that counsel's failure to amend

the petition prejudiced defendant. (The State does not claim, we note, that counsel's failure to

address timeliness more cogently caused no prejudice for the additional reason that defendant's

petition would have been dismissed for lack of merit even if its untimeliness was excused.)

                                            II. ANALYSIS

        Under the Act, an imprisoned defendant can mount a collateral attack on his conviction or

sentence by alleging that either was the consequence of violations of his constitutional rights.

People v. Erickson, 183 Ill. 2d 213, 222 (1998). Proceedings under the Act, where the defendant is

not under a sentence of death, have up to three stages. People v. Gaultney, 174 Ill. 2d 410, 418

(1996). At the first stage, the trial court examines the petition independently and should

summarily dismiss it if it is frivolous or patently without merit. 725 ILCS 5/122--2.1(a)(2)

(West 2002); Gaultney, 174 Ill. 2d at 418. If the court does not summarily dismiss the petition, it

proceeds to the second stage. At this stage, an indigent defendant is entitled to appointed counsel,

counsel may amend the petition, and the State may answer or move to dismiss the petition.

Gaultney, 174 Ill. 2d at 418. The court should dismiss the petition "when the allegations in the

petition, liberally construed in light of the trial record, fail to make a substantial showing of a

constitutional violation." People v. Hall, 217 Ill. 2d 324, 334 (2005). However, the State may move

to dismiss the petition on the basis that the defendant did not file the petition within the statutory

time limit. People v. Ramirez, 361 Ill. App. 3d 450, 453 (2005). If the State does so

                                                   -5-
No. 2--04--0127


move, and the defendant did file late, the court should dismiss the petition unless the defendant can show that the

late filing was not due to his culpable negligence. Ramirez, 361 Ill. App. 3d at 453. If the court does

not dismiss the petition at the second stage, the proceeding advances to the third stage, at which an

evidentiary hearing is held. Gaultney, 174 Ill. 2d at 418.

        Under section 122--4 of the Act (725 ILCS 5/122--4 (West 2002)), an indigent

postconviction petitioner is entitled to appointed counsel if the court has not dismissed his or her

petition at the first stage. However, the right is purely statutory rather than constitutional (People v.

Turner, 187 Ill. 2d 406, 410 (1999)), and under the Act, the petitioner is entitled only to a

" 'reasonable level of assistance' " (emphasis omitted) (People v. Lander, 215 Ill. 2d 577, 583-84

(2005), quoting People v. Owens, 139 Ill. 2d 351, 364 (1990)). Reasonable assistance includes

compliance with the specific obligations of Rule 651(c). People v. Bashaw, 361 Ill. App. 3d 963,

967 (2005). Under that rule, counsel must certify, or the record on appeal must otherwise show, that

counsel "has consulted with petitioner either by mail or in person to ascertain his contentions of

deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has

made any amendments to the petitions filed pro se that are necessary for an adequate presentation of

petitioner's contentions." 134 Ill. 2d R. 651(c). When the record demonstrates that counsel has

failed to provide the representation required by Rule 651(c), counsel's certificate that he has done so

is ineffective to establish compliance. See People v. Waldrop, 353 Ill. App. 3d 244, 250-51 (2004).

        The first issue this case presents is what postconviction counsel's specific duties are with

respect to a petition filed outside the statutory time. In particular, we must ask whether counsel has

a duty to attempt to amend such a petition to show that its lateness was not due to the defendant's

culpable negligence.




                                                       -6-
No. 2--04--0127


       Postconviction counsel normally has no duty to go beyond the record and the evidence

mentioned in the petition to find new evidence supporting a defendant's claims. People v. Johnson,

154 Ill. 2d 227, 247 (1993). Further, Rule 651(c) does not specifically mention any duty of counsel

to seek facts to respond to an untimeliness claim. Therefore, one could argue that consulting with a

defendant to get evidence to overcome an untimeliness claim is beyond counsel's duty.

       On the other hand, counsel is to amend the petition to make " 'an adequate presentation of

petitioner's contentions.' " Turner, 187 Ill. 2d at 412, quoting 134 Ill. 2d R. 651(c). We do not think

that counsel has made an adequate presentation of a defendant's claims if he or she has not attempted

to help the defendant avert dismissal for a reason other than the merits of the claim. Certainly, a

technical issue such as timeliness is a matter where a defendant may need assistance. We partially

addressed this issue in People v. Robinson, 324 Ill. App. 3d 553, 556-57 (2001), in which we held

that postconviction counsel was inadequate in defending against a motion to dismiss for

untimeliness. The failure there was striking: the record contained evidence that the defendant had

such severe cognitive disabilities that he would have had trouble even understanding the concept of

timeliness. Robinson, 324 Ill. App. 3d at 554-55. However, when explicitly asked by the court

whether any evidence suggested that the lateness was not due to the defendant's culpable negligence,

counsel told the court that he had written to the defendant, explained the timeliness requirements and

asked for facts that would excuse the late filing, but the defendant told him only that he believed that

the petition was not late. Robinson, 324 Ill. App. 3d at 555. We held that, based on the record facts,

postconviction counsel should have, at a minimum, advised the trial court that the defendant's mental

condition may have caused him to file the petition late. Robinson, 324 Ill. App. 3d at 557. We deem

that, when postconviction counsel is faced with a petition filed outside the regular statutory period,

to make an adequate presentation of the defendant's contentions counsel must make a reasonable

                                                  -7-
No. 2--04--0127


attempt to find out if any proper excuse exists for the late filing. This would include at least

recognizing whether the record suggested any excuse (per Robinson) and inquiring of the defendant.

If a possible excuse is apparent, counsel must act to make sure it is adequately presented to the

court.

         The State makes a narrower argument. It contends that, although defendant argues that

counsel had a duty to amend the petition to allege defendant's lack of culpable negligence, counsel

had no duty to defend against an untimeliness claim until the State moved to dismiss on that basis.

That is, it claims that counsel need not anticipate that the State will move to dismiss on timeliness

grounds. Assuming that the State is correct, that does not change counsel's obligation to provide a

reasonable defense against the motion, anticipatorily or otherwise. As we will later discuss, counsel

never did this. The question of when counsel's obligation arose is thus immaterial.

         Given that a defendant does have a right to reasonable assistance in fighting the State's

untimeliness defense to his or her petition, the next question we must address is what test determines

when he or she is entitled to relief. We must decide whether it is enough for a defendant to show

that postconviction counsel provided less-than-reasonable assistance, or whether he or she must also

show that the less-than-reasonable assistance caused him or her prejudice. If one assumes a two-

prong test, analogous to that in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693,

104 S. Ct. 2052, 2064 (1984), showing that counsel here acted without understanding how to defend

a late-filed petition against dismissal for untimeliness would satisfy only the first (lack of reasonable

assistance) prong. To satisfy the second (prejudice) prong, defendant would have to show, at a

minimum, some possibility that with reasonable assistance he could have alleged facts such that the

court would not have dismissed the petition for untimeliness. Because, as we discussed, the right to




                                                  -8-
No. 2--04--0127


postconviction counsel is statutory, not constitutional, Strickland is not automatically applicable to

claims of less-than-reasonable assistance of postconviction counsel.

        The determinative question here is what defendant must show beyond the mishandling of his

case by postconviction counsel, that is, the extent to which defendant must show that counsel's errors

harmed him. Were this a claim of ineffective assistance of trial counsel, made on direct appeal,

defendant's right to counsel would derive from the sixth amendment (U.S. Const., amend. VI), and

we would decide by the test in Strickland whether counsel had been ineffective. As noted, that is not

the relevant standard here. Nevertheless, the Strickland test is an essential standard for comparison.

Under that test, a court should not reverse a conviction because of ineffective assistance of counsel

unless the defendant shows (1) "that counsel made errors so serious that counsel was not functioning

as the 'counsel' guaranteed the defendant by the Sixth Amendment" and (2) that "the deficient

performance prejudiced the defense." Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at

2064. Showing prejudice requires demonstrating that "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different." Strickland,

466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. "A reasonable probability is a probability

sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 80 L. Ed. 2d at

698, 104 S. Ct. at 2068.

        Again, the right to counsel under the Act is purely statutory (Turner, 187 Ill. 2d at 410) and

Strickland is thus not applicable, except potentially by analogy. Notably, for defendants not under

the death sentence, the statutory right to counsel attaches only if a trial court reviews the defendant's

petition and finds it to be neither frivolous nor patently without merit, or the trial court fails to

enter a contrary finding within 90 days. Gaultney, 174 Ill. 2d at 418; 725 ILCS 5/122--4 (West

2002). When the right attaches is not the sole defining feature of the right, however. We therefore

                                                  -9-
No. 2--04--0127


first review the scope of the right to counsel under the Act before considering the cases that decide

when a defendant is entitled to relief for substandard performance.

       A core feature of a defendant's right to counsel under the Act is the entitlement to have

counsel amend the original petition to make an adequate presentation of the defendant's contentions.

The Act does not explicitly state this entitlement; courts interpret the Act to give defendants a right

to, simply, a " 'reasonable level of assistance.' " (Emphasis omitted.) Turner, 187 Ill. 2d at 410,

quoting People v. Owens, 139 Ill. 2d 351, 364 (1990). However, Rule 651(c) makes explicit some

of the duties that a "reasonable level of assistance" implies. See Turner, 187 Ill. 2d at 410. As

noted, the rule requires a showing that counsel has "consulted with petitioner *** to ascertain his

contentions of deprivation of constitutional rights, has examined the record of the proceedings at the

trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate

presentation of petitioner's contentions" (134 Ill. 2d R. 651(c)). Courts treat a failure to do any of

these things as a violation of the rule. E.g., Turner, 187 Ill. 2d at 412. We will refer to the duties

listed in Rule 651(c) as the Rule 651(c) mandates. Because Rule 651(c) sets out entitlements

inherent in the statutory right to counsel, a failure to satisfy a Rule 651(c) mandate is a violation of

both the statutory right and the rule.

       Illinois cases addressing claims of unreasonable assistance of postconviction counsel fall into

two lines, based on whether they apply a Strickland-like analysis, requiring the defendant to make a

positive showing of prejudice, or whether they apply Rule 651(c). The Strickland-like line begins

with People v. Ashley, 34 Ill. 2d 402, 411-12 (1966). The other line, typified by Turner and

Johnson, is rooted in the enforcement of Rule 651(c). It plainly rejects a Strickland-like prejudice

analysis but without explicitly foreclosing use of a harmless-error analysis.




                                                 -10-
No. 2--04--0127


       Ashley and its progeny use a Strickland-like prejudice standard to evaluate claims of

insufficient representation by postconviction counsel. (This line of cases originated before

Strickland itself, but not before the principles familiar from Strickland were current in Illinois law.)

Ashley stated:

                 "While petitioner strenuously argues that his representation in the post-conviction

       proceedings by appointed counsel was so inadequate, indifferent to his cause and

       incompetent as to amount to no representation at all, it is well settled that in order to

       establish incompetency of counsel, actual incompetent representation and substantial

       prejudice to the defendant as a result thereof must be established." Ashley, 34 Ill. 2d at 411,

       citing People v. Gray, 33 Ill. 2d 349, 355 (1965), and People v. Morris, 3 Ill. 2d 437, 447

       (1954) (both proto-Strickland cases involving trial counsel).

More directly on point is the later People v. Stovall, 47 Ill. 2d 42, 46 (1970):

       "Absent a showing of available material for supporting affidavits, a failure to present

       affidavits obviously cannot be considered a neglect by the attorney.

                 *** Where there is not a showing that sufficient facts or evidence exist, inadequate

       representation certainly will not be found because of an attorney's failure to amend a petition

       or, when amended, failing to make the petition's allegations factually sufficient to require the

       granting of relief." Stovall, 47 Ill. 2d at 46.

The supreme court most recently used this kind of analysis in People v. Spreitzer, 143 Ill. 2d 210,

221 (1991), which quotes from the passage in Stovall given above.

       The State cites this court's decision in Vasquez, but that case does not decide

whether a defendant whose postconviction counsel failed to comply with Rule 651(c) must

also show consequent prejudice in order to obtain relief. In Vasquez, we held that

                                                 -11-
No. 2--04--0127


postconviction counsel was not required under Rule 651(c) to include a new claim in the

defendant's postconviction petition. We then said:

              "Even if it could be shown that postconviction counsel should have amended

       the petition to allege a violation of the Vienna Convention, to establish that

       postconviction counsel provided inadequate representation, defendant must show

       that the petition could have been amended to state a case upon which relief could

       be granted. [Citation.]" Vasquez, 356 Ill. App. 3d at 425.

We went on to explain that the claim that the defendant urged should have been included in

his petition would not have stated a cause of action upon which relief could be granted.

Vasquez, 356 Ill. App. 3d at 425.

       Having found in Vasquez that the defendant received the assistance required by

Rule 651(c), we did not need to reach the question of whether our conclusion would have

changed had we found that counsel failed to meet the requirements of Rule 651(c) by

omitting the claim. We did, nevertheless, opine that the defendant's position was not

compromised by the omission of the claim, because the claim would not have afforded him

relief. However, because our opinion on this was not necessary to decide the case, it was

a dictum. Vasquez, therefore, does not hold that a defendant whose postconviction

counsel failed to discharge his duty under Rule 651(c) must show resultant prejudice.

       Moreover, Vasquez presented a factual situation where, had the court applied a

Strickland-type performance/prejudice analysis, the two prongs would have collapsed into

one, because counsel's failure to raise the issue of trial counsel's omission of the Vienna

Convention claim could not have been deemed inadequate performance (prong one)

unless that issue had merit such that it would have changed the outcome of the


                                           -12-
No. 2--04--0127


postconviction proceeding (prong two). There are, however, situations where Strickland's

performance and prejudice prongs are not so intertwined, allowing the adequacy of

counsel's performance to be examined independently of the prejudice question. See, e.g.,

Strickland, 466 U.S. at 699; 80 L. Ed. 2d at 700-01, 104 S. Ct. at 2070-71 (counsel's

decision of which mitigating evidence to present at sentencing found reasonable

independently of prejudice prong); People v. Rodriguez, 364 Ill. App. 3d 304, 314 (2006)

(counsel's decision not to ask alleged rape victim at trial whether or not she consented to

the sexual contact found reasonable independently of prejudice).

       Turner and Johnson take a different approach from Ashley and its progeny. 2 In Turner, the

court reversed the dismissal of a postconviction petition, stating that it "[would] not speculate" on

what the outcome would have been if "counsel had adequately performed his duties under Rule

651(c)." Turner, 187 Ill. 2d at 416. Postconviction counsel's performance was inadequate in two

ways: (1) he failed to amend the petition to cure a waiver problem by alleging that appellate counsel

had been ineffective in not raising certain matters on direct appeal; and (2) he failed to amend the


       2
           Turner and Johnson were both death penalty cases, meaning that the defendants were

automatically entitled to counsel (725 ILCS 5/122--2.1(a)(1) (West 2002)). However, the Turner

court emphasized that counsel's duties are the same, whether the case is a death penalty case or not.

Turner, 187 Ill. 2d at 413.




                                               -13-
No. 2--04--0127


petition to state a claim for ineffective assistance of trial counsel under the Strickland standard by

alleging that counsel's incompetent decisions had prejudiced the defendant. Turner, 187 Ill. 2d at

413. The court did not discuss whether the record suggested the existence of facts that would make

these new claims viable.

       In Turner, the State asserted that reversal was unnecessary because the petition was without

merit and thus the defendant could not show prejudice. Without addressing the merit of the petition,

the court observed that there was a "palpable" prejudice because counsel's failure to cure the waiver

problem "precluded consideration of [the defendant's] claims on the merits and directly contributed

to the dismissal of the petition without an evidentiary hearing." Turner, 187 Ill. 2d at 415.

However, we do not take the court to have established a lower "direct contribution" standard of

prejudice that a defendant must satisfy to obtain reversal.3 Indeed, the court went on to reject the

State's argument "[o]n a more fundamental level," holding that a dismissal is improper when "post-

conviction counsel's performance was so deficient that it amounts to virtually no representation at

all," i.e., when counsel had not "adequately performed his duties under Rule 651(c)." Turner, 187

Ill. 2d at 415-16. Thus, the court suggested its adherence to the general proposition that, when

counsel fails to comply with Rule 651(c), no showing of prejudice is necessary. See Lander, 215 Ill.

2d at 585.

       In Johnson, the court held that counsel failed to fulfill his duties under Rule 651(c) in that he

failed to contact witnesses whom the defendant named in his petition. Johnson, 154 Ill. 2d at 243-


       3
           Even if this were the standard, we would reach the same result in this case. Counsel's

failure to properly address the timeliness issue was the immediate cause of, and thus directly

contributed to, the petition's dismissal.


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No. 2--04--0127


45. Counsel's failure precluded the court from affirming a dismissal based on a lack of affidavits

from these witnesses, although, naturally enough, nothing in the record showed that the witnesses'

testimony would have been enough to make the petition viable. Johnson, 154 Ill. 2d at 243-45.

        Turner and Johnson are the supreme court's most recent word on this issue, and we therefore

follow them. The holdings in Turner and Johnson clearly exclude requiring a defendant to make a

positive, Strickland-type showing that his counsel's failure to comply with Rule 651(c) caused

prejudice. A question remains about whether postconviction counsel's failure to provide the

assistance required by Rule 651(c) is subject to a harmless-error analysis. The holdings in Turner

and Johnson do not explicitly resolve that issue, and we do not resolve it here. We recognize that a

First District panel, noting that the State had apparently not raised the issue in Turner and Johnson,

held in People v. Sargent, 357 Ill. App. 3d 946, 950-54 (2005), that a harmless-error analysis was

proper. We do not think that it is appropriate to now decide whether we will adhere to Sargent.

That case was decided too late for defendant to address it in his brief, and the State did not cite it or

otherwise suggest the applicability of a harmless-error analysis. The supreme court in Turner and

Johnson evidently deemed it appropriate to reserve judgment on whether a harmless-error analysis

applied when the State did not advocate such a position. The circumstances here suggest that a

similar result is just. To decide this issue in favor of the State, we would need to become its

advocate, which we deem to be inappropriate. See People v. Rodriguez, 336 Ill. App. 3d 1, 14

(2002) (noting that, although a reviewing court may consider unbriefed issues sua sponte, it should

decline to do so when doing so will "transform[] th[e] court's role from that of jurist to advocate").

Further, although our initial review of defendant's petition suggests that it contains uncorrectable

legal flaws, postconviction counsel's insistence that defendant's claim is different from that which we




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No. 2--04--0127


deem is apparent from the petition raises questions about what claim we would be considering. We

therefore decline to decide whether we can deem any error here to be harmless.

       Following the analyses in Turner and Johnson, we conclude that postconviction counsel here

violated Rule 651(c). Postconviction counsel argued (1) that defendant's petition was timely because

our order vacating two of defendant's convictions changed defendant's sentence and thus restarted

the time for defendant to file a petition, (2) that defendant could not raise his sentencing argument

until we decided his direct appeal as we did, and (3) that the time for filing a petition is subject to

flexibility in the interests of justice. All these arguments are legally without merit.

       The argument that a change in a sentence restarts the time to file a petition was rejected by

the First District in People v. Langston, 342 Ill. App. 3d 1100, 1103-04 (2001). We adopted the

reasoning of Langston in People v. Wright, 337 Ill. App. 3d 759, 762-63 (2003). Both cases

predated postconviction counsel's attempt to argue that our vacation of two of defendant's

convictions made his petition timely.

       The argument that defendant could not have raised certain sentencing issues until after we

decided his direct appeal fails for several reasons. The simplest of these is that, accepting for the

sake of argument that our resolution of the appeal did create new issues, defendant does not explain

why he needed as long as he did after we issued our resolution to file his petition. Defendant filed

his petition 15 months after we issued our mandate. We can accept that a defendant might routinely

need months to draft a petition in response to an issue created by an appellate disposition. However,

although we cannot say that 15 months would always be longer than a court should allow, we

believe that such a delay requires at least some explanation.

       Postconviction counsel's argument that the time for filing the petition is subject to flexibility

in the interests of justice suggests that counsel was unfamiliar with the framework of the Act as it

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relates to the time for filing. Section 122--1(c) of the Act, as then written, 4 stated that "[n]o

proceedings *** shall be commenced [under the Act and outside the specified time frame] 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). The only flexibility in the service of justice is the State's to exercise:

"A dutiful prosecutor may waive [the timeliness] defense at the second stage of the postconviction

proceedings if an untimely petition demonstrates the defendant suffered a deprivation of

constitutional magnitude." Lander, 215 Ill. 2d at 584. Postconviction counsel's argument seems to

spring from no known legal source and to ignore the obvious authorities.

       We conclude that postconviction counsel's representation of defendant was less than the

reasonable representation he was due under the Act. We do so with some trepidation. We do not

wish to be understood to hold that postconviction counsel provides less-than-reasonable

representation simply because he or she makes a bad argument. It is the nature of a defense lawyer's

job that he or she must make the best of what may turn out to be hopeless facts. A weak or far-

fetched argument may nevertheless be the least bad of all those possible; we would not suggest that

an attorney has committed a dereliction for making such an argument. 5 Furthermore, statements


       4
           Amendment has since modified the time limits for filing, but not the principle that a lack of

culpable negligence is the only basis on which a court can excuse a late filing. See 725 ILCS 5/122-

-1(c) (West 2004).

       5
           Postconviction counsel need not, and should not, argue for wholly indefensible positions.

In People v. Greer, 212 Ill. 2d 192, 205-09 (2004), the supreme court held that, where counsel is

faced with an irredeemably meritless petition, his or her duty is to withdraw. Greer, 212 Ill. 2d at

205-09. The same rule should apply to presenting a meritless defense against a motion to dismiss

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made at oral argument, as those of postconviction counsel were here, are not necessarily as thought

out as written arguments are.

       That said, some arguments can unambiguously betray a lack of familiarity with the

applicable law. That happened here when counsel asserted the flexibility of the time for filing a

petition. The problem is not that counsel made such an argument, but that he did so without

reference to the culpable negligence standard or any of the other underpinnings of the rules of

timeliness under the Act. An argument ungrounded in the basic principles of the applicable law is

unreasonable, even as a last-ditch effort. We can interpret it only as a sign of counsel's unfamiliarity

with those basic principles. We therefore have no reason to believe that counsel has investigated

whether facts exist that would excuse defendant's late filing of his petition.

                                         III. CONCLUSION

       Because defendant did not receive reasonable assistance of counsel in defending against the

State's motion to dismiss, the dismissal should not stand. Therefore, for the reasons given, we vacate

the trial court's dismissal of defendant's petition and remand the matter for defendant to receive

appropriate assistance with his defense against the motion.

       Vacated and remanded.

       GROMETER, P.J., and CALLUM, J., concur.




for untimeliness.




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