                           No. 3--07--0144

_________________________________________________________________
Filed July 21, 2008
                              IN THE

                    APPELLATE COURT OF ILLINOIS

                           THIRD DISTRICT

                             A.D., 2008

THE PEOPLE OF THE STATE         ) Appeal from the Circuit Court
OF ILLINOIS,                    ) of the 10th Judicial Circuit,
                                ) Stark County, Illinois,
     Plaintiff-Appellee,        )
                                )
     v.                         ) No. 96--CF--14
                                )
RONALD L. STOECKER,             ) Honorable
                                ) Stuart P. Borden,
     Defendant-Appellant.       ) Judge, Presiding.
_________________________________________________________________

     JUSTICE SCHMIDT delivered the opinion of the court:
_________________________________________________________________


     A jury convicted the defendant, Ronald L. Stoecker, of first

degree murder (720 ILCS 5/9--1(a)(2) (West 1996)) and aggravated

criminal sexual assault (720 ILCS 5/12--14(a)(2) (West 1996)).

The court sentenced the defendant to terms of imprisonment of

natural life and 30 years, respectively.     This court affirmed the

defendant's convictions on direct appeal.     People v. Stoecker,

No. 3--98--0750 (1999) (unpublished order under Supreme Court

Rule 23).   Thereafter, the defendant filed a petition for

postconviction relief.    This petition, which was amended four

times either pro se or by counsel, was dismissed by the trial

court at the second stage.    The defendant appealed.   On appeal,
the defendant argues that he was not culpably negligent for the

late filing of the petition.   We affirm.

                               FACTS

     In April 1997, the defendant was charged with first degree

murder (720 ILCS 5/9--1(a)(2) (West 1996)) and aggravated

criminal sexual assault (720 ILCS 5/12--14(a)(2) (West 1996)) of

15-year-old Jean Marie Humble.   The defendant was tried on these

charges and convicted.   On July 17, 1998, the court sentenced him

to terms of imprisonment of natural life for first degree murder

and 30 years for aggravated criminal sexual assault.

     The defendant appealed to this court.    On December 3, 1999,

we affirmed the defendant's conviction.     Stoecker, No. 3--98--

0750.

     On May 2, 2005, the defendant filed a pro se petition under

section 2--1401 of the Code of Civil Procedure for relief from

judgment.   735 ILCS 5/2--1401 (West 2004).   The court construed

this filing as a petition for postconviction relief (725 ILCS

5/122--1 et seq. (West 2004)) and dismissed the petition on

August 19, 2005.   The defendant filed a motion to reconsider,

which the court granted.   The court also ordered that the only

issues upon reconsideration were the defendant's assertions of

ineffective assistance of counsel at the trial and appellate

levels.   However, the defendant chose to present a number of

other issues.   In addition to the defendant's first petition for


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postconviction relief, the defendant, acting either pro se or by

counsel, filed four subsequent amended petitions for

postconviction relief.

     In the fifth petition (hereinafter the fifth amended

petition), the defendant alleged that on January 11, 2000, he

retained private counsel to represent him in postconviction

proceedings.   Counsel assured the defendant that his petition

would be timely filed.   On March 25, 2002, counsel notified the

defendant that he did not have a constitutional violation to

present for postconviction review.   The defendant alleged that

counsel did not return the record to him until April 2004.

     The trial court considered, and dismissed, the defendant's

fifth amended petition for postconviction relief.   The court

assumed, for argument's sake, that the petition was timely filed,

addressed only the issue of ineffective assistance of counsel,

and concluded that the defendant did not have a meritorious

constitutional allegation of ineffective assistance of counsel.

     The defendant appealed the trial court's dismissal of his

pro se fifth amended petition for postconviction relief.    In this

petition, the defendant asserts, inter alia, that he is: (1) not

culpably negligent for the late filing of his postconviction

petition because his counsel assured him the petition would be

timely filed; and (2) actually innocent of the crimes for which

he was convicted, and requests a retest of biological evidence in


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order to advance this claim.

                               ANALYSIS

     On appeal, the defendant first asserts that he is not

culpably negligent for the late filing of his petition for

postconviction relief.   The defendant contends that he relied on

the assurance of Ronald Hamm, his retained postconviction

counsel, that his postconviction petition would be timely filed.

     The Post-Conviction Hearing Act provides a mechanism for any

person imprisoned in a penitentiary to bring an allegation of a

substantial denial of his constitutional rights at trial.    725

ILCS 5/122--1(a) (West 2004).    A postconviction petition is a

collateral proceeding and not an appeal of the underlying

judgment.   Thus, postconviction relief "is not a substitute for,

or an addendum to, direct appeal."    People v. Kokoraleis, 159

Ill. 2d 325, 328, 637 N.E.2d 1015, 1017 (1994).    A postconviction

petition must also include supporting affidavits, records, or

other evidence, or an explanation of their absence.    725 ILCS

5/122--2 (West 2004).    The absence of affidavits supporting the

defendant's claims will not necessarily quash the defendant's

opportunity to obtain postconviction relief, if the allegations

are uncontradicted and clearly supported by the record.     People

v. McGinnis, 51 Ill. App. 3d 273, 366 N.E.2d 969 (1977).

     Pursuant to section 122--1(c) of the Post-Conviction Hearing

Act, if a petition for certiorari is not filed, a postconviction


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proceeding cannot begin more than six months from the date for

filing a certiorari petition, unless the petitioner alleges

sufficient facts that establish the delay was not due to his

"culpable negligence."    725 ILCS 5/122--1(c) (West 2004).     The

time limits in section 122--1(c) act as a statute of limitations.

People v. Paleologos, 345 Ill. App. 3d 700, 803 N.E.2d 108

(2003).   The Act's time limitation is not a jurisdictional bar,

but is an affirmative defense that can be raised, waived, or

forfeited by the State.    Paleologos, 345 Ill. App. 3d 700, 803

N.E.2d 108.   In order to determine the timeliness of a

postconviction petition, the effective time restrictions as of

the date of filing control.    People v. Bates, 124 Ill. 2d 81, 529

N.E.2d 227 (1988).

     In this case, the defendant concedes that his petition for

postconviction relief is untimely but alleges the delay is not

due to his culpable negligence.

     An untimely petition for postconviction relief is not

subject to dismissal if the delay in filing was not due to the

defendant's culpable negligence.       725 ILCS 5/122--1(c) (West

2004); Paleologos, 345 Ill. App. 3d 700, 803 N.E.2d 108.       The

burden rests with the defendant to prove a lack of culpable

negligence.   People v. Ramirez, 361 Ill. App. 3d 450, 837 N.E.2d

111 (2005).   The Illinois Supreme Court has recognized that

culpable negligence contemplates more than ordinary negligence.


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People v. Rissley, 206 Ill. 2d 403, 795 N.E.2d 174 (2003).

Rather, culpable negligence, while not intentional, involves a

disregard of the consequences likely to flow from one's actions.

People v. Lander, 215 Ill. 2d 577, 831 N.E.2d 596 (2005).

     Although the length of the delay, alone, does not establish

culpable negligence, "it stands to reason that a defendant who

waits nearly five years beyond the statutory deadline to file a

petition has more explaining to do than one who is late by less

than a week."   People v. Hampton, 349 Ill. App. 3d 824, 828, 807

N.E.2d 1262, 1265 (2004).    In general, all citizens are charged

with knowledge of the law.    People v. Boclair, 202 Ill. 2d 89,

789 N.E.2d 734 (2002).   Further, the sole obligation for filing a

timely postconviction petition remains with the defendant.

Lander, 215 Ill. 2d 577, 831 N.E.2d 596.   Neither a lack of

knowledge of the law nor an unfamiliarity with the Act's

requirements will excuse the delay in filing a suit.    Boclair,

202 Ill. 2d 89, 789 N.E.2d 734; Hampton, 349 Ill. App. 3d 824,

807 N.E.2d 1262.

     The trial court's findings of fact regarding a defendant's

culpable negligence will be reversed only if they were manifestly

erroneous, but the ultimate conclusion of whether the established

facts demonstrate culpable negligence is subject to a de novo

review.   Ramirez, 361 Ill. App. 3d 450, 837 N.E.2d 111.   In this

case, the trial court did not make specific factual findings


                                  6
regarding the issue of the defendant's culpable negligence, so

our review of the second-stage dismissal of the defendant's

postconviction petition is de novo.       Ramirez, 361 Ill. App. 3d

450, 837 N.E.2d 111.   An appellate court can affirm on any basis

supported by the record.   Aboufariss v. City of De Kalb, 305 Ill.

App. 3d 1054, 713 N.E.2d 804 (1999).

     In this case, in the defendant's fifth amended

postconviction petition, he alleges that: (1) he retained

attorney Hamm on January 11, 2000, to represent him for purposes

of postconviction review; (2) Hamm assured the defendant his

postconviction petition would be timely filed; (3) Hamm, on March

25, 2002, notified the defendant that he did not have a

constitutional violation to present for postconviction review;

(4) Hamm did not return the records to the defendant until April

2004; and (5) the defendant "worked diligently" to file his

petition for postconviction relief by May 2, 2005.      The

postconviction petition includes affidavits from: (1) the

defendant, averring his allegations were truthful; and (2) the

defendant's brother and father, both averring that they believed

that trial counsel provided ineffective assistance.

     First, it is well settled that not only is the defendant

charged with presumptive knowledge of the law, but also that the

timely filing of a petition for postconviction relief is the sole

responsibility of the defendant.       See Lander, 215 Ill. 2d 577,


                                   7
831 N.E.2d 596.   Further, the assistance of counsel for purposes

of postconviction review is not a constitutional right.     People

v. Pinkonsly, 207 Ill. 2d 555, 802 N.E.2d 236 (2003).     Here, the

defendant has not established that the mere fact he may have

hired counsel to assist in postconviction proceedings relieves

him of culpable negligence for the late filing of the petition.

Rather, it is the sole responsibility of the defendant to ensure

the petition is timely filed.

     Further, the defendant has failed to attach an affidavit

that supports his contentions that Hamm: (1) was retained in

January 2000; (2) promised to timely file the defendant's

petition for postconviction relief; and (3) retained the record

for two years after notifying the defendant he would not file a

postconviction petition on his behalf.    We recognize that the

absence of an affidavit supporting the defendant's contentions

does not require the automatic dismissal of the defendant's

petition.   In this case, however, the defendant's allegations are

not clearly supported by the record.    The record contains only

two letters from Hamm to the defendant, one dated August 3, 2000,

requesting a telephone conversation to speak about the

postconviction proceedings, and the other, dated March 25, 2002,

notifying the defendant that his case did not present any issues

by which relief could be granted.    Thus, these claims are not

supported by the defendant's own affidavit, those of his father


                                 8
and brother, or by the record.   Therefore, they do not assist the

defendant in establishing he was not culpably negligent in the

untimely filing of his postconviction petition.

     Assuming, arguendo, that the defendant did not receive the

record until April 2004, another 13 months elapsed before the

defendant filed his initial petition for postconviction relief.

During this time, the defendant did not notify the court about

his situation, nor did he file a motion for leave to file an

untimely petition.   These facts further rebut the defendant's

contention that he lacks culpable negligence for the late filing

of the petition.

     Overall, neither the defendant's petition nor the record

supports the defendant's assertion that he was not culpably

negligent for the untimely filing of his petition for

postconviction relief.   An appellate court is not constrained by

the reasoning of the trial court and may affirm the dismissal of

a postconviction petition on any basis supported by the record.

People v. DeBerry, 372 Ill. App. 3d 1056, 868 N.E.2d 382 (2007).

Therefore, although the trial court considered and dismissed the

petition on the merits, we find that the petition was untimely

and the defendant cannot establish he was not culpably negligent

for the untimely filing.   Thus, the trial court did not err by

dismissing the defendant's postconviction petition.

     In his fifth amended petition for postconviction relief, the


                                 9
defendant also asserts that he is actually innocent.   In support

of this contention, the defendant notes in his brief that he

filed a motion under section 116--3 of the Code of Criminal

Procedure of 1963 for deoxyribonucleic acid testing, which has

not been heard by the trial court.   725 ILCS 5/116--3 (West

2004).   The defendant further admits that he "has not provided

evidence of his actual innocence."   Thus, this vague assertion of

actual innocence does not excuse the untimeliness of the

defendant's postconviction petition, and it was properly

dismissed by the trial court.

     Because we affirm dismissal of the defendant's petition

based on untimeliness, we need not consider the remainder of the

claims alleged in his petition for postconviction relief.

                        CONCLUSION

     The judgment of the circuit court of Stark County is

affirmed.

     Affirmed.

     CARTER and LYTTON, JJ., concur.




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