People v. Perkins

• Decision Date: 06 October 2006
• Docket Number: No. 2-04-0127.,2-04-0127.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jahmal PERKINS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1178

856 N.E.2d 1178

306 Ill.Dec. 83

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jahmal PERKINS, Defendant-Appellant.

No. 2-04-0127.

Appellate Court of Illinois, Second District.

October 6, 2006.

John C. Greenlees and Anna Ahronheim (Court-appointed), Office of the State Appellate Defender, Chicago, for Jahmal Perkins.

Ronald G. Matekaitis, De Kalb County State's Attorney, Sycamore, Stephen E. Norris, Deputy Director, Kendra S. Peterson, State's Attorneys Appellate Prosecutor, Mt. Vernon, for the People.

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 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, 235 Ill.Dec. 478, 705 N.E.2d 91 (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, 321 Ill.App.3d 1060, 277 Ill.Dec. 902, 797 N.E.2d 249 (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 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, 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 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, 291 Ill.Dec. 821, 824 N.E.2d 1071 (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, 233 Ill.Dec. 319, 700 N.E.2d 1027 (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, 221 Ill.Dec. 195, 675 N.E.2d 102 (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, 221 Ill.Dec. 195, 675 N.E.2d 102. 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, 221 Ill.Dec. 195, 675 N.E.2d 102. 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, 299 Ill.Dec. 181, 841 N.E.2d 913 (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, 297 Ill.Dec. 331, 837 N.E.2d 111 (2005). If the State does so 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, 297 Ill.Dec. 331, 837 N.E.2d 111. 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, 221 Ill.Dec. 195, 675 N.E.2d 102.

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, 241 Ill.Dec. 596, 719 N.E.2d 725 (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, 294 Ill.Dec. 646, 831 N.E.2d 596 (2005), quoti...